June 13--A judge's detailed findings about the fatal police shooting of Christopher Torres in 2011 provide a basis for the U.S. Department of Justice to look at filing criminal charges against the officers, a lawyer for the family says.
"Judge (Shannon) Bacon's findings are that the officers killed an unarmed man and then covered it up. We're hoping that finding is sufficient for DOJ to take a look at this for criminal prosecution," Torres family attorney Randi McGinn said.
Bacon presided over a week-long March trial and issued a 20-page document this week detailing her findings of fact and of law. She also found that over $6 million in compensatory damages should be awarded to the family, but the amount is capped at $400,000 under state law.
McGinn said there is no formal process for asking for a criminal investigation from DOJ -- just as there is no formal process with the District Attorney's Office -- but the family has met with DOJ Civil Rights Division officials several times urging them to take up the case.
"I don't know anybody who could shoot someone three times in the back and not be taken before a grand jury for that," McGinn told the Journal.
The officers said they shot Torres after he managed to get one of their guns -- testimony Bacon said she did not find credible.
Stephen Torres, Christopher's father, said he and other individuals and groups have met many times with DOJ officials asking about potential criminal investigation and indictments. He said they have been told the civil rights division and the criminal division are distinct entities and maintain a strict separation from one another.
"We are hoping that DOJ criminal division is looking into all these cases and that there may be indictments," he said.
McGinn suggested that District Attorney Kari Brandenburg holds officers to a different standard than other citizens.
Brandenburg emphasized Wednesday to reporters that the standards of proof are different in criminal cases and in civil cases like the one Bacon presided over.
"Our standard (of proof) is probably twice what it is in a civil case," she said.
While Bacon found testimony by Detectives Richard Hilger and C.J. Brown "not credible," Brandenburg and her supervisory team reached a different conclusion.
"We did not find the police officer testimony 'not credible,'" Brandenburg said. "I have no reason not to believe the officers thought their life was threatened."
Bacon found there was no credible evidence to support the officers' contention that Torres had grabbed one of their guns.
In the civil trial, the officers' testimony came in via videotape questioning taken in court months earlier. Brandenburg and her team of chief deputies reviewed written police statements, physical evidence and reports from the Office of the Medical Investigator, asking for more detail from OMI because they believed they needed to know more.
Brandenburg complained that their review was hampered by not being able to use "investigative grand juries" to subpoena witnesses and take testimony. She said prosecutors, like judges, have immunity from prosecution for the work they do and becoming investigators themselves could compromise that protection. The investigative grand juries were suspended in Bernalillo County in 2013 by the court, meaning an inhouse review by prosecutors is the only means available for review.
"This is flawed, but this is the best we can do," she said.
The investigative grand jury system was ended after courts found there was no statutory authority for them and critics had slammed them as a sham because of the way cases were presented. None of the grand jury reviews ever resulted in a shooting found to be unjustified.
Brandenburg said she had no plans to reopen her review of the Torres case, but she said she could take new information if it related to a criminal law violation as opposed to a violation of an SOP, or standard operating procedure.
Brandenburg earlier was critical of the APD investigation -- in particular, the failure to interview an eyewitness for two years. She asked APD to interview backyard neighbor Christie Apodaca. The DA team's review of Apodaca's statements found major inconsistencies -- for instance, saying in one statement that both officers had their guns out.
Brandenburg said she nevertheless was not surprised that a judge found civil liability.
McGinn believes the officers should have been required to take polygraph tests because of contradictions between the physical evidence and their statements -- particularly on the point of Christopher Torres allegedly wresting the gun from one of the officers. The Torres family twice asked then-Chief Ray Schultz and Mayor Richard Berry by letter to consider requiring tests of Hilger and Brown.
Schultz, through the city's contract attorney Luis Robles, said that would not be possible until the Internal Affairs investigation was completed, and said APD would be open to reconsideration of the request.
The Torres' attorneys never received a response to their second request.
"Now that a judge has found these guys lied, what is (the) police chief going to do?" McGinn asked. "They never had one day of discipline in their file(s)."
Copyright 2014 - Albuquerque Journal, N.M.
