January 16, 2017

ABQ police watchdog: Feds investigating more than just video tampering claims

The scope of an ongoing federal criminal investigation into events surrounding the fatal shooting of a 19-year-old woman by an Albuquerque police officer in 2014 stretches beyond what has been previously reported. That’s according to the lead investigator for the city’s independent police watchdog group.

Department of Justice officials took the rare step last month of confirming an investigation into allegations made by a whistleblower that APD employees tampered with video from officers’ body cameras and other sources, including video from the early morning hours of April 21, 2014, when then-APD officer Jeremy Dear shot Mary Hawkes.

But Ed Harness, executive director of the Civilian Police Oversight Agency (CPOA), said in an interview that federal authorities are “looking into the entire case,” including whether the shooting itself was unlawful. In a series of presentations to Justice Department officials in early November, Harness and one of his investigators turned over information they had gathered during an administrative review of the shooting.

Elizabeth Martinez, a spokeswoman for the U.S. Attorney’s Office in Albuquerque, declined to comment on the details of the investigation. Nor would she answer this reporter’s questions, including whether subpoenas had been issued in the case.

“Additionally, as a matter of law, federal officials are prohibited from commenting on matters occurring before grand juries,” Martinez wrote in the email.

Harness’ revelation points to a more complex investigation and a potentially higher hurdle for federal officials who are looking into whether APD employees committed any crimes.

Proof that low-level APD employees altered or deleted videos—or that higher ranking officers ordered them to do so or sanctioned the practice—could lead to charges including obstruction of justice or conspiracy. To prosecute Dear for shooting Hawkes, authorities would have to prove that he “willfully” deprived her of her constitutionally protected right to live. This standard for on-duty police officers is akin to first-degree murder.

Thomas Grover, Dear’s attorney, also said Friday he understands that the Justice Department is investigating “the entirety of the Hawkes shooting and related issues.” He added that federal authorities have not subpoenaed Dear nor notified him that he is a target of the investigation.

Hawkes’ family is suing Dear and the city for civil rights violations. In March, their attorneys filed a complaint with Harness and the CPOA asking for an investigation into potential APD policy violations stemming from Dear’s alleged misconduct. Initially, Harness told the family he could not proceed because Dear had been fired from APD and because the District Attorney’s Office was reviewing the shooting for potential crimes.

But on Sept. 12, Harness wrote a letter to the family’s legal team saying the CPOA had reopened its review “because the agency now has access to information it previously did not.”

The case took another turn when Harness and his investigators discovered what they believed was criminal activity surrounding the shooting. By law, they had to once again suspend the administrative review.

CPOA officials were also required to refer the potential criminal evidence to a law enforcement agency.

On Nov. 7, Harness and Paul Skotchdapole, one of his investigators, made a presentation to Justice Department officials at the U.S. Attorney’s Office in Albuquerque. According to Harness, the pair returned the next day for a second presentation, this time to Justice Department officials and James Ginger, the federal monitor who is overseeing a series of ongoing court-enforced reforms at APD.

Harness declined to say what, exactly, he and Skotchdapole turned over to the Justice Department. But based on the presentations, Harness said he left the meetings with the sense that federal officials would investigate the entire case—not just the allegations that APD employees altered or deleted videos from the day Dear shot Hawkes.

Those allegations of altering the video came from Reynaldo Chavez, a former APD records supervisor, in a nine-page sworn affidavit as part of the Hawkes family’s lawsuit.

The affidavit rocked the city when it was made public Nov. 18.

Chavez alleged that videos from the Hawkes shooting and at least one other controversial APD shooting had been blurred and, in some cases, partially deleted by APD staff. He also said that department higher-ups were aware of the practice and that APD made efforts to keep video that would be damaging to the department from seeing the light of day.

Immediately, then-District Attorney Kari Brandenburg and others called for a federal criminal investigation into Chavez’s claims. City officials at first said they planned to conduct their own review of his allegations, then agreed to hire an outside firm to complete that work.*

Since then, Mayor Richard Berry has been silent on Chavez’s allegations, which the administration has not officially denied. No one from the mayor’s office has commented publicly on the Justice Department investigation.

Neither Berry’s spokeswoman nor City Attorney Jessica Hernandez responded to questions sent by NM Political Report Friday, including whether the city has yet hired anyone to review Chavez’s claims or whether the city is cooperating with the federal investigation.

The criminal investigation continues as the city’s relationship with the Justice Department becomes increasingly frayed. Ginger and DOJ officials have accused the city of intransigence and stonewalling amid efforts to fix a longstanding “culture of aggression” among city police officers and a leadership structure that has refused to address the use of excessive force.

The Berry administration agreed to the reforms after a 16-month Justice Department investigation found deep problems at APD.

That investigation was civil in nature and separate from the ongoing look into the events surrounding the Hawkes shooting. Typically, federal officials do not publicly confirm investigations into police shootings.

A recent exception to that occurred in 2014 when the FBI confirmed it was investigating the fatal shooting of homeless camper James Boyd. That investigation did not result in federal charges. However, the two former officers who shot Boyd—Keith Sandy and Dominique Perez—were tried in state District Court for murder. The trial ended in a hung jury, and prosecutors are still deciding whether to retry the pair.

*Pat Davis, one of the Albuquerque city councilors who requested an outside investigation into alleged APD video tampering, is executive director of ProgressNow New Mexico. ProgressNow New Mexico helps find funding for NM Political Report. No one in the organization, including Davis, has any input in the editorial process of this or any other story.