Despite another year in which New Mexico led the nation for fatal police shootings by population, how best to ensure public trust when those cases are reviewed for possible wrongdoing remains a vexing question.
And with less than 48 hours left in this year’s 60-day legislative session, another year likely will pass without a fix from lawmakers.
At a time when New Mexico is swimming in cash, neither lawmakers nor the state’s 14 district attorneys have appeared to push for the additional money it would take to create a uniform, statewide review system.
“This session, there really hasn’t been anything that would address this,” Rick Tedrow, Eleventh Judicial district attorney and immediate past president of the New Mexico District Attorneys Association, told New Mexico In Depth. “In terms of funding for extra prosecutors to focus on these cases, it really should be the DAs asking for that. But we are all limited by our own other budget priorities, and we’re still trying to get back to normal from years of underfunding.”
As it stands, DAs around the state approach fatal shootings or allegations of excessive force by officers in a variety of ways to determine whether a crime was committed. NMID and the Santa Fe New Mexican examined the systems in late 2016 and found a confusing, conflict-ridden patchwork of processes from district to district that contributed to long delays in resolving cases and no clear path to accountability, even in egregious cases.
Not much has changed since then. Some top prosecutors review police shooting investigations in-house; one jurisdiction still uses controversial “investigative grand juries,” which do not have the authority to indict officers, to consider questions of wrongdoing; one has a special prosecutor on staff; and others farm the reviews out to a panel of prosecutors from other jurisdictions.
The hodgepodge remains despite a set of what were supposed to be “best practices” issued last year by a state attorney general-convened group and a failed bill in 2017 that would have established and funded a new unit in the AG’s Office to oversee all police shooting reviews.
That bill, sponsored by Rep. Patricia Roybal Caballero, D-Albuquerque, died quietly in its first assigned committee. It would have allocated $1.5 million to create the new division and staff it in a year of deep cuts across New Mexico’s criminal justice system.
The lone bill this year that addresses the question is House Bill 493, sponsored by Roybal Caballero and fellow Albuquerque Democrat Christine Trujillo. It would require the governor to appoint a special prosecutor for police shooting cases who would, in turn, present the case to a state District Court judge in a preliminary hearing. The judge’s findings, however, would not be binding; the presiding DA in the district where the shooting happened would still have final say on charges against the officer.
The proposal does not include an appropriation.
Tedrow and others opposed the bill, which never received a hearing in the House State Government, Elections and Indian Affairs Committee.
“There are real separation of powers issues, and we had real problems with that,” Tedrow said.
He acknowledged that this session, with the largest budget surplus in recent memory, would have presented a better opportunity than in years past to fund new approaches to police shooting reviews.
At the same time, Tedrow defended the use of outside-prosecutor panels to review the shootings — a process he has overseen — despite some of the lengthy delays in publishing the panels’ findings.
“I think it’s a better process than some of the things we’ve seen in the past,” he said. “At least now, DAs have an avenue to avoid that appearance of a conflict with prosecuting officers in their district. But the hangup is that it’s all volunteer, and we’re all busy.
“I would love to speed up the process, but it really comes down to money. If some of us could hire one or two more attorneys to do these reviews, I think we could make that happen.”
Tedrow said prosecutors may consider asking the Legislature for special appropriations throughout the year for exactly that.