In a letter dated October 14, 2020, Bernalillo County District Attorney Raul Torrez notified the Albuquerque Police Department (APD) and the Bernalillo County Sheriff’s Office (BCSO) that his office was introducing a new disclosure policy. The policy is based on the United States Supreme rulings Giglio v. United States, 405 U.S. 150 (1972) and Brady v. Maryland, 373 U.S. 83, (1965).
The Giglio ruling requires the prosecuting agency, in this case the Bernalillo County District Attorney’s Office, to disclose to a charged criminal defendant all information or material that may be used to impeach the credibility of the prosecution witnesses including police officers and sheriff officers who are witnesses for the prosecution in any case.
The Supreme Court ruling mandating disclosures in the Giglio case is nothing new and has been required since 1972. The DA’s office is merely formalizing the process and posting the information on the District Attorney’s website. According to District Attorney Raul Torrez, the new system will bring transparency to the criminal justice system and hold prosecutors and law enforcement accountable.
Torrez told both APD and BCSO in his October 14 letter:
“My office joins a growing number of prosecutor offices around the nation that are embracing reform and police accountability by formalizing this Giglio inquiry process. Historically, requests for Giglio material have been done on a case-by-case basis and the results of earlier Giglio inquiries have not been searchable. Beginning in November my office will start implementing a formal and searchable system.”
The letter goes on to say that law enforcement officers listed as witnesses in an open case will receive a questionnaire where information like past misconduct of bias, use of force or truthfulness, or criminal charges must be disclosed. The findings will then be placed into an officer’s personnel file. A link to the October 14 letter from the District Attorney to APD and the BCSO is here:
https://www.scribd.com/document/483235279/Giglio-letter-to-local-law-enforcement#from_embed
On November 6, 2020, DA Torrez announced he intended to create a list of law enforcement officers who have disclosures reflecting a history of dishonesty, use of force, bias or other issues that might make them unfit to aid in a prosecution case or prohibit them from testifying in court. The DA’s Office announced it wanted to begin publishing the list on its website early 2021.
The list consists of the names of officers who have Giglio disclosures that prosecutors are required to provide to defense attorneys where law enforcement witnesses may be unreliable or biased. The new list is being touted as the first public database of its kind in the country. District Attorney Raúl Torrez stressed the practice of disclosing the material itself is not new. Both the Law Offices of the Public Defender and the New Mexico Criminal Defense Lawyers Association routinely ask for Giglio disclosures at the beginning of cases and it is done on a case-by-case basis.
POLICE MISCONDUCT TRACKING SYSTEM FUNCTIONAL
On October 28, 2021 the Bernalillo County District Attorney’s Office announced that the automated system has been in effect for several months. According the Bernalillo County District Attorney’s Office, “ Giglio questionnaires” are now sent to both APD and BCSO Deputies with the goal of monitoring police misconduct and holding officers accountable with an office-wide database.
HOW IT WORKS
The Bernalillo County District Attorneys web site provides an explanation of how the disclosures work. Further, the web site lists and identifies the 12 law enforcement officers currently on the list giving case numbers and captions.
According to the web page:
“As part of the transition to this formalized system, [the DA’s office] .. started … new inquiries with officers who are witnesses in active cases with upcoming pretrial interviews or trials. … The vast majority of law enforcement officers have no history of conduct or bias that would be subject to Brady-Giglio disclosure.
The list here, however, is not exhaustive. It includes only those officers named as witnesses in pending cases. There might be other officers with credibility issues, some of whom may have committed misconduct that received public attention, that are not listed here because they are not currently witnesses in pending cases prosecuted by our office.
Whenever [the DA’s office makes] … a Brady-Giglio disclosure, we will file a Notice of Disclosure in court and make that notice available to the public here by listing the officer, officer’s agency, court case number, date of notice filing, and a link to the court filing. A disclosure does not automatically prevent an officer from testifying at trial. We err on the side of disclosure in recognition of our unique constitutional duties, but it is a judge who ultimately decides whether or not the information has probative value for the jury. Also, the number of cases listed for an officer is not necessarily an indication of the severity of their conduct, it is merely an indication of the number of pending cases they have with our office.”
The link to the DA’s web page entitled Brady-Giglio Disclosures with the listing of police officers is here:
https://berncoda.com/criminal-justice-accountability/
NEED FOR MONITORING DISHONESTY AND BIAS BY COPS
District Attorney Raul Torrez said there’s a need for monitoring and investigating dishonesty, bias, and other damaging behavior by police officers. In the past, Defense attorneys have been relegated to questioning the credibility of officers involved in active cases due to their own misconduct like being criminally charged for a DWI while off duty.
DA Raul Torrez had this to say:
“We’re the first office in the country to come up with a systematic integrity questionnaire that we provide to officers sending us felony cases. … Prosecutors need to take a leading role in reshaping the criminal justice system to provide more transparency and accountability and I frankly believe this is something you’re going to start seeing across the nation. … When we intake these cases we conduct this integrity screening and then we meet here in the office there’s a panel that reviews the information and then if a disclosure has to be made then a filing is made in court and also provided to defense attorneys. … Of all the cases that we screen and intake, the vast majority of the officers that we work with don’t have any of those issues that are subject to disclosure. … It helps restore confidence in their work and confidence in the type of police work that they’ve been engaged in for a long, long time.”
Currently, there are 12 police officers listed on the Bernalillo County District Attorney’s office website. The public has access to all filed notices of disclosure on the Bernalillo County District Attorney’s Office website under the “Transparency and Accountability” tab with the link here:
GIGLIO MATERIAL BEING ASKED FOR DISCLOSURE
In the October 14, 2020 letter, District Attorney Torrez outlined the information that will be asked in the questionnaire to law enforcement:
“Examples of Giglio information include but are not limited to:
MISCONDUCT THAT REFLECTS BIAS
Information that may be used to suggest that the investigative employee is biased for or against a defendant or witness in a case
Information that may be used to suggest that the investigative employee is biased against a particular class of people, for example, based on a person’s gender, gender identity, race, or ethnic group
Misconduct that reflects on truthfulness
A sustained finding that an investigative employee has filed a false report or submitted a false certification in any criminal, administrative, employment, financial or insurance matter in his or her professional or personal life
A sustained finding that an investigative employee was untruthful or has demonstrated a lack of candor
A finding of fact by a judiciary authority or administrative tribunal that is known to the employee’s agency, which concludes in a finding that the investigative employee was intentionally untruthful in a matter, either verbally or in writing
A sustained finding that undermines or contradicts an investigative employee educational achievements or qualifications as an expert witness
Inappropriate or unauthorized use of government data.”
CRIMINAL CHARGES
A pending criminal charge or conviction of any crime, disorderly person, petty disorderly person, municipal ordinance, or driving while intoxicated matter.
OTHER MISCONDUCT OR INVESTIGATIONS
Any allegation of misconduct bearing upon truthfulness, bias, or integrity that is subject of a pending investigation
Any promises, offers, threats or inducements, including the offer of immunity
A sustained finding or judicial finding that an investigative employee intentionally mishandled or destroyed evidence
Misconduct that involves the use of force
Our office will disclose Giglio material will disclose to defense counsel, file a notice of disclosure, and will log the disclosure on a Giglio list.”
A link to the October 14 letter from the District Attorney is here:
https://www.scribd.com/document/483235279/Giglio-letter-to-local-law-enforcement#from_embed
UNITED STATES SUPREME COURT RULINGS
The two landmark United States Supreme Court case that are at issue are Brady v. Maryland, 373 US 83, decided in 1963 and Giglio v. United States, 405 U.S. 150, decided in 1972.
Brady v. Maryland, 373 U.S. 83, (1965) is the 1965 case that established that the prosecution must turn over all evidence that might exonerate the defendant and aide in the defense. The prosecution failed to do so for Brady, and he was convicted and the conviction was overturned. The US Supreme Court found in Brady v. Maryland that due process is violated when the prosecution “withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.” This is the case even if the failure to disclose was a matter of negligence and not intent.
Giglio v. United States, 405 U.S. 150, is a 1972 Supreme Court case involving the prosecution’s obligations in regards to criminal discovery and disclosure. In Giglio, the Court went further and held that “all impeachment evidence falls under” the Brady holding. What this means is that the prosecution is obligated to disclose all information or material that may be used to impeach the credibility of prosecution witnesses, including police officers who are called as witnesses for the prosecution.
The consequences of Brady and Giglio are simply stated as police officers must be especially careful to avoid any and all actions or statements that could compromise their credibility. This could easily include racial slurs and expressions of racial prejudice. A good example involves the case of OJ Simpson when investigating homicide officer Mark Furhman was impeached on the witness stand for his history of racial slurs that destroyed his credibility on the stand.
One legal authority succinctly put it this way:
“[Under the Supreme Court rulings] the prosecution is legally required to disclose any misconduct or compromising information regarding the witness to the defense attorney, who will then use it to impeach the law enforcement witness on the stand. The end result can be the loss of what would have been a strong case.”
NEW MEXICO LAW
Under New Mexico State law, it is not illegal to release disciplinary records of police officers. However, police departments that choose to keep them private cite an exception to the state’s Inspection of Public Records Act (IPRA) that provides “letters or memorandums, which are matters of opinion in personnel files” are exempt from public inspection.
In 1977, the New Mexico Supreme Court specifically held that “disciplinary action” and other “matters of opinion” can be withheld. The Supreme Court held that the legislature anticipated there could be documents concerning disciplinary action that “might have no foundation in fact.”
Currently, each law enforcement agency in New Mexico can interpret the state’s public records law differently. The Albuquerque Police Department (APD) consistently releases Internal Affairs Investigations and the discipline records of officers especially when civil lawsuits are filed or an officer is charged with a crime. Many other departments in the state simply resist requests and do not release the personnel records. What this means is that there are varying policies throughout the state law enforcement agency that are in a constant state of change when new management takes over.
COMMENTARY AND ANALYSIS
There are only 12 police officers listed on the DA’s web page. That is a very good sign that the public can have a level of confidence in the work being performed by sworn police who are at the for front of criminal investigations.
POSTSCRIPT
READER REACTION
On December 17 a reader expressed the following reaction in an email: to the above article as follows:
I may be confused. I went to the referenced DA website and saw the officers who are named and the case numbers. There’s no explanation of why the officers are listed and what it is about the specific cases that qualifies an officer for listing. I guess this will be helpful to defense attorneys, but cannot see how it could be useful to the general public. It’s certainly not something that folks like me would ever have reason to visit. So, it’s “good” but only for those who are professionally related to the crime and the accused. If an officer is “biased” but not involved in a criminal prosecution, he or she is still out there on the street, interacting with all sorts of folks. The officer’s bias may be affecting the interaction and may even result in action against the civilian that is below the level of arrest, such as a traffic offense. The civilian in such cases may have their attitude and behavior changed for the long-term by a negative experience with a biased officer. That’s something that enhanced training may attempt to address, such as with “unconscious bias” training.
RESPONSE
The reader is not at all confused and is correct in the assessment. The information is not generally useful to the public and only the extent of being a “red flag” for a name. When you go to the DA’s web page entitled “Brady-Giglio Disclosures with the listing of police officers” you need to click on the individual “case number” that is listed and you are linked to the specific court pleading filed by the District Attorney in the case which tells the court the information has been disclosed to the defense, which in turn the defense can use the specific information at trial. If the public wants anymore information, Inspection of Public Information (IPRA) can be made of the DA as to what was turned over to them.