The Albuquerque Journal wrote a scathing editorial about District Attorney Elect Raul Torrez asking other prosecutors from around the state review the Boyd shooting case and make recommendations regarding another trial.

(See https://www.abqjournal.com/917950/new-das-first-move-is-to-get-some-political-cover.html)

The Albuquerque Journal editors are the very last one’s to talk about providing “political cover” to anyone.

All that the Albuquerque Journal has ever done for Mayor Berry and Chief Gordon Eden is provide “political cover” for them as well as Governor Martinez with its biased reporting.

The Albuquerque Journal’s “political cover” has especially been egregious in the shooting aftermath of homeless camper James Boyd and the prosecution of former police officer’s Dominique Perez and Keith Sandy. (For more thoughts, please see my December 22, 2016 blog article “DA Oversight of APD Critical” on my blog PeteDinelli.com)

The day after the James Boyd shooting, Chief Gordon Eden in a press conference called the shooting “justified” and Berry was out of town for a week rumored to be on a camping trip.

The Albuquerque Journal never pressed Berry or demand answers as to Berry’s whereabouts.

The City of Albuquerque paid the Boyd family $5 million dollars to settle the case and the Albuquerque Journal never questioned the settlement nor asked Berry and Eden their thoughts on the settlement.

The Albuquerque Journal then went after District Attorney Kari Brandenburg when she was accused of alleged witness tampering by APD in a criminal case involving her son.

The Albuquerque Journal sided with Chief Eden when he said “no one is above the law” with their investigation of Brandenburg, even though it was apparent that the investigation was politically motivated because Brandenburg was about to charge the two APD officers for the James Boyd shooting.

When Chief Gordon Eden took the stand to testify in the Perez – Sandy preliminary hearing and said he had not even read the reports on the shooting, the Albuquerque Journal editors had no comment.

The New Mexico Attorney General reviewed the APD criminal investigation of Brandenburg, found no criminal conduct by her and issued an opinion that APD’s investigation of the Brandenburg was politically motivated.

The adverse publicity by the Albuquerque Journal and other news outlets about APD’s bogus investigation of Brandenburg was used by the defense to have the DA’s office removed from the case.

The Albuquerque Journal has perfected the art of “political cover” to promote its political agenda.

The Washington Post recognized Mayor Richard Berry as one of the 11 most inspiring people because of the city program “There’s a Better Way”. (For full story see https://www.washingtonpost.com/news/inspired-life/wp/2016/12/29/2016-wasnt-all-bad-here-are-the-11-most-inspiring-people-we-met-this-year/?utm_term=.bb95c031c851) The program allows the city to hire panhandlers for day jobs and pays them an hourly wage. I cannot wait for the Washington Post to award Berry’s former Chief Public Safety Officer Darren White and Chief Gordon Eden awards for “inspirational law enforcement” towards the homeless. Darren White said “take the gloves off” to remove the homeless from downtown Albuquerque costing the city $98,000 to settle a case. APD Chief Gordon Eden said the shooting of homeless camper James Boyd was “justified” and the City paid $5 million to settle with the Boyd family.

http://www.politico.com/magazine/story/2016/12/what-works-albuquerque-homeless-solution-housing-policy-214527

The hypocrisy of the Berry Administration is revealed and buried in this Politico Magazine article.

The temporary job-van program reported is having a positive impact on the homeless population in Albuquerque.

Mayor Berry deserves credit and recognition for the program that was his idea.

But there is a big difference between doing what someone says versus how they are represented and perform through their staff and who they put in charge.

Berry may have come up with the program to help the homeless, but it was his Chief Public Safety Officer Darren White that said “take the gloves off” to remove the homeless from downtown Albuquerque costing the city $98,000 to settle a case.

Berry declined to comment to Politico Magazine if he was aware or approved of White’s orders.

Years later, the Albuquerque Police Department (APD) gets training to deal with the mentally ill and homeless only after homeless camper James Boyd is shot and killed by Albuquerque Police Officers Dominique Perez and Keith Sandy .

Berry was nowhere to be found for over a week after Boyd was killed.

The entire week after Boyd was killed, it was rumored Berry was out of town on a camping trip, but he has never confirmed where he was or what he was doing and the press never demanded information on his whereabouts.

The shooting of homeless camper James Boyd is the same case that APD Chief Gordon Eden said was a “justified” shooting in a press conference the day after the shooting.

Former APD police officers Dominique Perez and Keith Sandy were charged with the killing of homeless camper James Boyd, but a jury could not reach a verdict in the case.

Charges against Perez were dismissed, and a decision to retry Sandy is pending.

During the prosecution of Perez and Sandy, it was revealed that homeless camper James Boyd was well know to APD and to the APD Crisis Intervention Team.

During the Perez-Sandy trial, at no time was it revealed if the City made any efforts to reach out to Boyd to help him with shelter or any services.
The Berry Administration also likes to take credit for the “blue 911” signs at street intersections and freeway entrances asking those who are panhandling, need help with food, assistance, and shelter.

The blue signs are cruel and misleading to those who call because the signs give the false impression that assistance will be given to the caller by the City of Albuquerque.

311 is the Citizens Contact Center you call to get information on city government services such as bus schedules, large item pick-up or graffiti removal.

When people call 311 in response to the contact signs, all the 311 operators can do is provide contact information, such as phone numbers and addresses, to callers for charitable organizations or private or government agencies.

The 311 contact center cannot help at all other than to make referrals.

The chronically homeless usually do not have cell phones to call 311.

The greatness of a City is reflected in the way it treats its homeless and senior citizens.

Advocating for effective programs to help the homeless is great, but other actions are just as revealing or misleading.

A few months ago, I attended former Albuquerque Mayor David Rusk’s presentation “Insights on the past, present, and future of city building in Albuquerque.”

Mayor David Rusk served as Albuquerque Mayor from 1977 to 1981.

For the last 35 years, he has been a consultant on urban planning advising 130 Metro areas in the United States and many European cities.

His presentation was very informative and well attended by concerned citizens.

Mayor David Rusk talked about three subjects:

1. The importance of land annexations to a modern City’s development and bond ratings.
2. The critical role that the city’s education system plays in providing an educated Workforce.
3. The role of mixed-income housing and inclusionary zoning.

Here are comments and observations on all three topics.

1. The Importance of Land Annexations to a Modern City’s Development and Bond Ratings

Land annexations and expansion for growth of a City are essential to expand a growing City’s property tax base and gross receipts tax revenues to have sustainable revenue sources to pay and provide essential services as a city grows and develops.

The increase in annexation of land by a city helps a city to secure high ratings for the bonding of debt used for critical infrastructure needs and capital improvements.

From my own perspective, there were two major power grabs that occurred that have stymied Albuquerque’s natural growth and development to the Westside and we allowed our elected officials to go along with them.

Land annexations are one area that the New Mexico legislature made sure that Albuquerque’s future growth to the Westside was stymied for the sake a preserving Bernalillo County.

Years ago, the New Mexico legislature enacted legislation sponsored by powerful State Senator Manny Aragon that prohibits the City annexing any property to be part of the City without the consent of Bernalillo County.

The real goal of the anti-annexation legislation was to preserve the autonomy of the South Valley and the rural lifestyle it represents.

The massive “Santolina” development project on the Westside is now consuming the Bernalillo County Commission with political controversy.

Many argue legitimately that Bernalillo County does not have the financial resources to deal with the massive infrastructure demands of the Santolina project and in all likelihood the project will suck major resources that could go to address South Valley needs.

The “Santolina” developers are already talking about approaching the City of Albuquerque for annexation because the City is the deeper pocket for utilities and infrastructure development.

At the same time as the enactment of the anti-annexation legislation, the New Mexico legislature enacted the Water Utility Authority legislation that essentially stripped the City of Albuquerque of all its water utility assets and turned them over to an authority governed by City and County elected officials called the Water Utility Authority.

City residents are both City and County residents and pay taxes for the benefit of both city and county governments.

Bernalillo County residents pay taxes that benefit the county government.

2. The Critical Role That City’s Education System Plays in Providing an Educated Workforce

This is a common topic of discussion when it comes to economic development and attracting new businesses to Albuquerque.

Whenever a business or industry identifies Albuquerque as a city to relocate to or expand, it must determine if the city has the educated or trained workforce to fill the labor force it needs.

Improving our schools and vocational systems, reducing dropout rates, are critical to diversifying Albuquerque’s economy.

My personal perspective is that city economic development efforts need to be better coordinated with our vocational institutions to identify new industries that can be attracted to Albuquerque and insure Albuquerque has the trained workforce to accommodate any new industry.

Albuquerque needs to pursue with a vengeance real growth industries like healthcare, transportation and manufacturing, and the film industry in order to diversify our economy.

3. The Role of Mixed-Income Housing and Inclusionary Zoning

Mixed-income housing and inclusionary zoning involves allowing or acquiring low income housing to be made available in housing developments.

An example of mixed-income housing and inclusionary zoning is the city zoning laws requiring developers to dedicate a certain percentage or portion of a residential home development to low income housing in exchange for tax incentives or infrastructure fees for streets and utilities.

From my own perspective, political organizations such as the Albuquerque Chamber of Commerce, Albuquerque Economic Forum, Albuquerque Hispano Chamber of Commerce, Greater Albuquerque Association of Realtors, the National Association of Industrial and Office Parks (NAIOP), the New Mexico Association of Commerce and Industry do not like and oppose any government intervention and regulations and oppose any city zoning laws that are inclusionary and mandate low income housing.

To be blunt, these business organizations are more interested in profit, and little profit is found in low income housing.

Final Words for Thought

Mayor Rusk talked about taxation and said elected officials and voters should never be afraid to invest in themselves with taxation to make a city viable and self-sustaining.

I for one have always been amused how conservative Republican heads spin like “Beetlejuice” whenever tax increases are ever discussed for essential services.

Republicans are the first to oppose any tax increases even for essential services yet they are the first in line to demand those services.

Two quotes that Mayor Rusk said that stuck out to me were:

“Taxes are the dues we pay to live in a civilized society.”

“Jim Crow by income is replacing Jim Crow by race.”

It’s dangerous to drive the streets of Albuquerque.

DWI felony and misdemeanor arrests, arraignments and convictions are down to dangerous levels.

Careless and reckless drivers who do not obey simple traffic laws are commonplace, yet it is difficult to see any marked police units patrolling our streets and freeways.

DRAMATIC DECLINE IN DWI AND TRAFFIC CASE ARRAIGNMENTS

The statistics from the Bernalillo County Metro Court are alarming and reveal just how bad things are with the Albuquerque Police Department (APD) being unable to patrol our streets, get drunks off the road, make DWI arrests and issue traffic citations and prosecute cases.

In 2008, there were 633 felony DWI arraignments and the number steadily declined each year to 104 in 2015.

In 2008, there were 6,538 DWI/DUI misdemeanor arraignments and the number steadily declined each year to 2,942 in 2015.

In 2008, there were 84,527 traffic court arraignments and the number steadily declined each year to 31,163 in 2015.

(Source: http://www.nmcourts.gov/reports-and-policies.aspx)

The Bernalillo County Metropolitan court handles cases for virtually all law enforcement agencies that make arrests in Bernalillo County, including the Albuquerque Police Department (APD), the Bernalillo County Sheriff’s Department (BCSO) and the New Mexico State Police.

The largest percentage of cases arraigned in the Bernalillo County Metropolitan court is for APD cases.

In 2009, there were 746 people arraigned for felony DWI and that number dropped to a mere 104 in 2015.

In 2008, there were 6,538 people arraigned for misdemeanor DWI and in 2015 that number dropped by close to 60% to 2,942.

First, second and third DWI offense convictions are misdemeanors, and depending on the number of the conviction, carry penalties of between 6 months to 3 years license revocation, 90 to 364 days in jail, $500 to $1,000 fine, up to 5 years probation, and may include other mandatory penalties such as alcohol evaluation, DWI school, community service, treatment, and ignition interlock for 2 years.

Fourth, fifth, sixth, seventh or subsequent DWI convictions are felonies and depending on the conviction number, carry penalties of lifetime license revocation, 6 months mandatory prison time up to 3 years in prison, up to a $5,000 fine, mandatory alcohol evaluation, and lifetime interlock.

Aggravated DWI is where a person’s breath alcohol test is above a .16 BAC (breathalyzer), or there is a refusal to take the BAC test or if bodily injury while driving while intoxicated is caused, with mandatory jail time of 2 days for the first offense, 4 days in jail for second offense and 60 days in jail for the third offense.

The silence by the press and anti-DWI advocates is deafening given the serious drop in DWI arraignments and convictions.

DRAMATIC DECLINE IN TRAFFIC ARRAIGNMENT CASES

In 2006, as a Deputy City Attorney, I was tasked with implementing the Traffic Court Arraignment Program where Assistant City Attorneys and paralegals were hired and assigned to the Bernalillo County Metropolitan Court to negotiate plea agreements in traffic cases at the time of arraignments.

A Metropolitan Judge is assigned on a rotating basis to approve the plea agreements negotiated, and on any given day as many as 500 cases can be negotiated, resolved and approved by the Court.

When a person is stopped and issued traffic citations, the citing sworn officer determines if the driver will contest the citations and if the driver wants to contest the citations an arraignment date and time is immediately scheduled.

The Metropolitan Traffic arraignment program streamlined the process, saves time and money and negates the appearance of police officers at the arraignments.

There are upwards of 170 different traffic violation citations that can be issued by sworn law enforcement.

The most common traffic citations include speeding, reckless driving, careless driving, failing to stop, improper lane change, no registration, no insurance, suspended drivers license, failing to yield, and open container.

Fines for traffic citation carry civil penalties as low as $5.00 to as much as $1,000 in fines.

Failure to have insurance for example is a $1,000 fine.

The average Metropolitan Traffic Court arraignment case results in court fees and fines anywhere from $65 to upwards of $250.

In 2009, there were 86,175 traffic arraignment cases in Metro Court and in 2015 traffic cases dropped to 31,163, or over 55,000 fewer traffic citations.

Fewer cases results in fewer fines and it has a direct fiscal impact on court programs such as DWI education programs.

NEW MEXICO HAS SECOND WORST DRIVERS IN US AND A DRINKING PROBLEM

In November 2015, it was reported that the National Highway Traffic Safety found that New Mexico had the second-worst drivers in the country, according to a car-insurance comparison group. (For full story see November 27, 2015 Albuquerque Journal article “New Mexico Drivers second worse in the country, https://www.abqjournal.com/682511/new-mexico-drivers-secondworst-in-us.html)

No doubt the Bernalillo County Metropolitan Court statistics contributed significantly to the statistics because it is the largest and busiest court in the state and in the largest city in New Mexico.

The study ranked states based on fatalities per miles driven, speeding, drunken driving, careless driving, and other moving citations per capita, according to the Albuquerque Journal article.

According to the study, New Mexico ranked fifth for the most careless driving cases, 10th for the most drunken driving arrests, 17th in traffic fatalities, 12th for speeding and 16th for other types of citations.

APD STAFFING SHORTAGE

There is a direct correlation with the dramatic decline in the number of DWI arrests and arraignments and traffic arrangement cases and the severe decline in APD personnel.

The December 11, 2015 Albuquerque Police Department Comprehensive Staffing Assessment and Resource Study prepared by Alexander Weiss for the Department of Justice concluded that APD needs at least 1,000 sworn officers.

The Weiss report concluded that 1,000 sworn police officers were sufficient for Albuquerque provided that APD officers did not respond to certain low priority calls such as minor traffic accidents or false alarm calls.

In 2009, APD had 1,100 police officers with approximately 700 assigned to field services, patrolling our streets over three shifts.
Seven years ago, response times were at 8.5 minutes, below the national average.

In 2009, APD had a traffic unit that had upwards of 20 patrol officers and today it is at less than 10.

In 2009, APD command staff recommended that Albuquerque needed at least 1,200 sworn officers for community based policing and felony prosecutions.
The number of APD sworn officers has fallen from 1,100 officers to 850 over the past seven years.

In 2015, APD has 841 sworn police officers with only 440 assigned to the field services patrolling responding to 69,000 priority one 911 emergency calls a year.

It takes an average of 15 minutes to dispatch a police officer to 911 emergency calls, which endangers public safety.

CONCLUSION

Based on review of the Metropolitan Court statistics, DWI arrest and traffic code enforcement are a very low priority of APD, not out of desire, but out of necessity.

With APD field officers responding to over 69,000 priority one calls a year, not to mention thousands of lower priority calls, it is surprising the statistics are not worse at Metropolitan Court.

APD can no longer be proactive with DWI and traffic enforcement.

The net result is that Albuquerque streets are dangerous to drive.

Local District Attorneys should not be removed from the review and oversight process of police criminal misconduct and unjustified police officer-involved shooting cases.

I am a former Bernalillo County Chief Deputy District Attorney, Assistant Attorney General and Assistant District Attorney, with 15 years experience as a felony prosecutor who actually prosecuted three police officers early in my career.

One case I prosecuted involved APD officers who changed out of their uniforms while on duty and committed armed robberies and then took the call after it was called in to them.

Bernalillo County District Attorney-Elect Raul Torrez has requested seven District Attorneys from around the state to review the Keith Sandy case and recommend whether to seek another trial of the former police officer for the killing of homeless camper James Boyd.

Torrez must be given the benefit of the doubt in trying to do the right thing and deciding if Sandy should be tried again for murder when he asks for an independent review of the case by other District Attorneys.

I give Mr. Torrez the benefit of the doubt just as long as he makes the final decision after he is sworn in as Bernalillo County District Attorney.

THE PEREZ/SANDY PROSECUTION

Bernalillo County District Attorney Kari Brandenburg and her office were removed from the prosecution of Perez and Sandy and a special prosecutor was then appointed.

At the time of her removal from the prosecution of the case, APD was investigating Brandenburg for alleged witness tampering in a criminal case involving her son.

Brandenburg accused APD of retaliating against her for bringing charges against the officers.

Albuquerque’s Chief Administration Officer wrote Brandenburg alleging that she and members of her office had engaged in unethical conduct in reviewing the Perez/Sandy case for prosecution in an obvious attempt to have her office removed from prosecuting the case and to aide the defense.

The New Mexico Attorney General reviewed the APD criminal investigation of Brandenburg, found no criminal conduct by her and issued an opinion that APD’s investigation of the Brandenburg was politically motivated.

The attorney general also issued an opinion that there was “an appearance of impropriety” by Brandenburg when witnesses in her son’s case contacted her about making restitution for her son.

Brandenburg and her office were removed from the Perez/Sandy prosecution because of allegations of conflict of interest made by the defense against her and related publicity.

Ultimately, the first trial of Perez/Sandy ended with a hung jury voting 6 to 3 to find not guilty with the charges against Perez later dismissed by the special prosecutor.

PROPOSED CHANGES TO REVIEW PROCESS

District Attorney-Elect Torrez says he is a proponent of an independent prosecutorial review for officer involved shootings.

Torrez claims “Having prosecutors investigate and potentially charge police officers from agencies with whom they work on a regular basis can do substantial harm to institutional relationships that are necessary for public safety”. (For the full story see “Outside prosecutors to review Boyd case”, page A-1 and A-2, December 12, 2016, Albuquerque Journal.)

Preserving a “working relationship” should never be used as an excuse to avoid getting to the truth of alleged police misconduct and crimes.

Legislation has been prepared for the 2017 New Mexico legislature to create and fund a specialized unit in the New Mexico Attorney General’s Office to handle the review of all officer-involved shootings throughout the state and take the responsibility away from local district attorneys to prosecute police officers for unjustified shootings.

ROLL OF THE ATTORNEY GENERAL

An argument that is made by proponents for the New Mexico Attorney General to take over the review and prosecution of officer-involved shootings is that local district attorneys cannot fairly and impartially review officer involved shootings of local police they work with and that there is an inherent conflict of interest. This is a bogus argument.

The New Mexico Attorney General is the chief law enforcement official in the State of New Mexico, is required to have a working relationship with virtually all law enforcement agencies in the State of New Mexico, and works repeatedly with local law enforcement agencies on cases.

The Attorney General is also the chair of the law enforcement certification board and handles all criminal appeals to the New Mexico Court of Appeals and Supreme Court for the District Attorneys.

Creating a specialized unit in the Attorney General’s Office to handle officer involved shootings is not the answer. It amounts to nothing more than political “passing the buck”.

Arguing that special prosecutors outside the local District Attorney’s Office should be appointed to review and make decisions to charge to avoid conflicts of interest because the office works closely with local law enforcement agencies is tantamount to an elected official refusing to do a job they were elected to do by voters.

The grand jury system of charging is a necessary function of any criminal felony prosecution guaranteed by our constitution and it is the duty and responsibility of the elected District Attorney to present cases to a grand jury for any police misconduct that is criminal.

It is a grand jury that decides what charges, if any, are made after the District Attorney presents sufficient evidence of probable cause.

DA’S CRITICAL ROLE OF POLICE OVERSIGHT

All elected District Attorneys must be 100% committed to civilian oversight of police, and recognize that police are not above the law and must be held to a higher standard in order to protect our constitutional rights.

The public should not tolerate even a hint of police intimidation against any prosecuting agency or any court when police perceive they are not getting their way or what they want.

Under no circumstances should the public tolerate law enforcement actions and investigations by police that are politically motivated.

In Bernalillo County, the District Attorney is part of the multi-jurisdiction task force that investigates officer-involved shootings.

An issue that hovers over the Albuquerque Police Department like a black cloud and that demands civilian oversight is the Department of Justice (DOJ) consent decree and implementation of agreed reforms.

The consent decree mandates that APD participate in the “multi-jurisdiction” task force that investigates the shootings.

My hope is that the Bernalillo County District Attorney is 100% committed to the DOJ reforms to civilian oversight of APD.

The district attorney is frequently called out to the scene of homicide cases.

A District Attorney must be prepared to resist all outside political influences when it comes to investigating police officers for misconduct and violation of constitutional rights.

A District Attorney must be willing to stand up to those who may try to interfere with the police oversight function without fear of offending a police agency or fear of retaliation from a police agency.

The Bernalillo County District Attorney served a valuable oversight function of APD when it reviews and approves search warrants. They notify APD when case investigations need more work or cases are mishandled.

It is the District Attorney’s office that has the ultimate authority to screen virtually all cases submitted for felony prosecution by APD and decide which cases are to be prosecuted.

PROCESS TO HANDLE CONFLICT-OF-INTEREST CASES

The appointment of a special prosecutor outside of a prosecuting agency is difficult and costly.

The Administrative Office of the District Attorneys has in place a definitive process to handle conflict-of-interest cases.

First, a District Attorney must determine if a conflict exists.

An example of a conflict is an employee of the office or an employee’s relative being charged with a crime.

Second, the District Attorney must contact other district attorneys in the state to determine if any one will take the case.

Third, if no other District Attorney in the state is willing to take the conflict case, then the Attorney General is asked to take the case.

Fourth, if the attorney general declines to take the conflict case, the district attorney is required to appoint a special prosecutor that must be paid for out of the existing District Attorney’s budget or with a special appropriation.

The overwhelming majority of District Attorney Offices in the state decline appointment as special prosecutor in officer involved shooting cases in other jurisdictions because they simply do not have the resources to prosecute and they are dealing with their own caseloads.

Retaining a private attorney to act as special prosecutor is also prohibitive because most private attorneys will not take high profile cases. And when they do they usually charge thousands of dollars that require special allocations from the state legislature.

During the past few years, the New Mexico Legislature has cut the budgets of the Attorney General, the District’s Attorney office, the Public Defender’s Office and the Courts.

Because of the severe financial crisis the state is in, it is doubtful the legislature will go along with funding of a special unit in the Attorney General’s Office.

CONCLUSION

The ultimate goal and solution should be to reduce unjustified officer-involved shootings negating the need for a specialized prosecution unit.

Another goal that the Bernalillo County District Attorney should assist with is the complete compliance by APD with the Department of Justice mandated reforms resulting in the dismissal of the consent decree.