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OIS DA Protocol 2013

Scope of Review:

The District Attorney is exclusively involved in deciding whether or not there is
probable cause to pursue criminal charges against any party involved in Officer-
Involved Shootings, Motor Vehicle Accidents or In-Custody Death cases. For cases in
which it is clear that there was no death or injury, or the death or injury was not
caused by any police officer, this office will not produce or publish the extensive review
done on other cases. It is not the role of the District Attorney to determine matters
such as the violation of police procedures, personnel matters, or civil liability. Other
agencies and reviewing bodies determine such issues, and civil liability issues may
ultimately be resolved in civil courtrooms.

For over thirty years, under the administration of four different District
Attorneys, cases of this nature were presented by a senior prosecutor to an
Investigative Grand Jury, even after the reviewing prosecutor had personally
concluded that criminal charges were not warranted. The process allowed grand
jurors, as members of the community, to weigh the evidence themselves and determine
whether or not actions by the police were justified under the criminal laws of New
Mexico or to recommend that charges be presented to a subsequent grand jury. The
use of an Investigative Grand Jury enabled the District Attorney to issue subpoenas to
witnesses to compel their testimony, and provided a forum for witnesses to testify
under oath to the facts of each case, thus helping to ensure that the evidence presented
was as complete as possible.

Effective January 24, 2013, the Chief Judge of the Second Judicial District Court
has disallowed the use of the Grand Jury for such purposes, and the Office of the
District Attorney will instead use the following protocol in its review of such cases for
possible criminal prosecution. It should be noted that the District Attorneys Office is
not an investigative agency and its review of cases will be overwhelming reliant upon
police reports, autopsy findings/medical records, crime scene reports, photographs
and recordings of statements given by witnesses to the police. The present process
does not allow for the use of subpoenas to bring in an unwilling witness or sworn
testimony, as would the Investigative Grand Jury process.

In order for charges to be presented to a charging or target grand jury or as a
preliminary hearing, the State must determine in advance that there is probable cause
that a crime has been committed. Prosecutors have an ethical obligation under the
New Mexico Rules of Professional Conduct, Section 16-308. The prosecutor in a
criminal case must refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause. Further, at the time a prosecutor presents evidence to a
(target) grand jury or through a preliminary hearing, that prosecutor must believe
there is sufficient evidence for a trial jury to find guilt beyond a reasonable doubt.
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Call-Outs to the Scene

The Second Judicial District Attorney (DAs Office) is a signatory to the
present MOU regarding officer-involved fatalities and great bodily harm incidents
within this jurisdiction. The other signatories are the Albuquerque Police
Department, Bernalillo County Sheriffs Department, and New Mexico State Police.
In accordance with that MOU, the DAs Office sends a senior attorney (usually one of
four Chief Deputy District Attorneys) to all officer-involved call-outs. The lead
agency in any given case is responsible for notifying the on-call Chief Deputy in a
timely fashion so the Chief Deputy can go to the scene without undue delay.

The role of the Chief Deputy District Attorney is to observe, attend briefings,
provide legal advice on matters such as arrest and search warrants, and whenever
possible, participate in a walk-through of the scene of the incident to personally
observe conditions at the scene. In the hours and days following a call-out, that
attorney is to remain available to answer additional legal questions from
investigators, attend any additional briefings, and review any proposed additional
warrants prepared by investigators as they complete their investigation.

As soon as possible after the initial call-out, the responding Chief Deputy
shall have a file created and opened on the DA Case Management System to record
information and events as they develop.

Fatal vs. Non-Fatal Cases

The on-call CDDA will respond to both fatal and non-fatal incidents and
provide legal advice as may be appropriate under the circumstances. This may
involve the review and approval of search warrants and/or arrest warrants of a
civilian or officer if the facts known at the time require it. If the individual who has
been shot is arrested, or charges against that individual are contemplated, that
portion of the case will be referred to a prosecution division in the DAs Office that is
not under the supervision of the Chief Deputy who responded to the scene. The
Chief Deputy in charge of review of the OIS aspect of a case will not become
materially involved in the prosecution of the person who was shot by police. The
same Chief Deputy who responds to the scene will typically handle the case from
start to finish, absent a conflict of interest, unavailability or other reason for the
District Attorney to reassign the case to a different Chief Deputy.


Contact with Next-of-Kin in Fatal Cases

At the time the Chief Deputy begins his or her review of a case all reasonable
efforts will be made to contact the next-of-kin of any person who dies in an Officer-
Involved Shooting, Motor Vehicle Accident or In-Custody Death. The next-of-kin will
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be given the opportunity to submit a written statement of any relevant facts
regarding the matter to the District Attorney for consideration in evaluating the
case. That statement should generally not exceed 1500 words, and should be
submitted by a reasonable time deadline. When review of the case is completed,
notification of the District Attorneys decision will be sent to the next-of-kin.

Contact with Individual Injured in Non-Fatal Cases

Likewise, in cases which do not result in death, our office will send a letter to
the individual injured, or to his or her attorney, if represented, inviting the same
input if desired. The assigned Chief Deputy will make every effort to avoid direct
communication with the person injured by police if the individual is also facing
criminal charges arising from the incident. When review of the case is completed,
notification of the District Attorneys decision will be sent to the individual involved,
or to his or her attorney, as appropriate.


Formal Review Process

The CDDA assigned each case will ensure a compete report has been
submitted to our office, including, but not limited to: the primary detectives Supp
Out, law enforcement officers initial and supplemental reports, Criminalistics
Report(s), diagrams and any specialized reports (i.e. firearms and tool mark reports,
DNA analysis, etc.), complete OMI Reports, Toxicology Reports, CADS printouts,
copies of all video, audio, and photographic recordings, and any existing transcripts
of witness interviews. If any records are lacking, the CDDA will request same from
appropriate agencies or the primary detective or criminalist.

The CDDA will then thoroughly review all aspects of the police investigation.
If, in the judgment of the reviewing attorney, further investigation is required to
properly evaluate the case, the CDDA will request such information from the
assigned detective or, if necessary, ask for supplemental investigation by a member
of the DA staff.

The CDDA will also review any submissions of additional information from
the next-of-kin of the decedent, or the individual shot, in the event of non-fatal cases.
The CDDA will determine whether there is probable cause to present any proposed
criminal charges against the involved officer(s) to a target grand jury.

The CDDA will then meet with the District Attorney and other Chief Deputies
to review and discuss preliminary conclusions and will conduct any further analysis
of the case agreed upon during that review process. If it is determined that probable
cause exists to present charges against the officer(s) involved to a target grand jury
or preliminary hearing, the CDDA will proceed in that manner as quickly as possible.

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If it is determined that probable cause does not exist to pursue criminal
charges against the officer(s) involved, the District Attorney and reviewing Chief
Deputy will send a letter explaining the basis of that decision to the involved police
agency. A copy of that decision letter will be made available to the public through
timely posting on the District Attorneys public website or other appropriate means.


Goals for Completion and Release of DA Decisions

The District Attorneys Office shall endeavor to complete its review of all
cases addressed in this Protocol within six months following receipt of all
documents listed above. (See Formal Review Process, above.) Timely completion of
the District Attorneys review of cases may be delayed if additional investigation is
required, or depending upon ongoing caseloads and trial schedules of the assigned
Chief Deputies.