D.A. charges Albuquerque cops with murder, but is it a cynical charade?

New Mexico district attorney Kari Brandenburg has filed murder charges against two Albuquerque police officers in the high-profile case of James Boyd, 38, a mentally ill homeless man who was gunned down while apparently trying to surrender to police in March 2014. But is she serious about convicting these killer cops? I’m skeptical that she’s sincere. Several factors argue that her charges against the officers are an empty gesture, nothing more than window dressing.

The Albuquerque Police Department has killed over 40 people since 2010. It’s under federal investigation for excessive use of force. Boyd’s killing provoked protests, some violent. Brandenburg has every incentive to try defusing the situation with a sham prosecution.

But she doesn’t look like a prosecutor who wants to do the right thing by sending trigger-happy cops to jail for abusing their authority by killing a person without justification, if that’s what indeed happened. (This, of course, is a matter to be determined by the jury based on evidence presented at trial.)

She has a history of protecting killer cops. “The criminal charges were the first Brandenburg has brought against officers in a shooting, something for which she has come under scrutiny. … She has been criticized for her office’s controversial … practice of using grand juries to affirm prosecutors’ decisions [not] to charge officers in shootings.”

That sure doesn’t sound to me like a D.A. who wants to put cops away for shooting citizens who didn’t need to be shot.

Filing an “information,” as it’s called, means nothing in and of itself.* It’s easy to sabotage a prosecution;all you have to do is not try very hard to win a conviction.

(* By way of explanation, there are two ways for prosecutors to charge someone with a crime, either by obtaining a grand jury indictment or by filing a formal “information and belief” that the person committed the crime. The information is a historical relic of frontier days, when sparse populations made convening grand juries difficult and expensive, that’s still widely used in western states. The 5th Amendment of the U.S. Constitution requires indictments for federal crimes, but this doesn’t apply to states, which allows states to charge by information.)

This action by the D.A. has “for show only” written all over it. It’s probably meant to keep the feds at bay, and nothing more. To give this prosecution credibility, Brandenburg should have asked the court to appoint a special prosecutor. She also should have charged the officers with manslaughter, which in New Mexico is a separate offense, not a lesser included offense. This means if a jury concludes the officers did not commit deliberate murder, but nevertheless committed a culpable homicide, they must acquit them because New Mexico law doesn’t allow the jury to return a lesser verdict of manslaughter in the absence of the prosecutor charging that specific offense, which in New Mexico’s criminal code has different elements than murder.

This sounds like an arcane detail, but it’s likely to make the difference between a guilty verdict or acquittal in this case. As a New Mexico Law Review article says, “The distinguishing mark of voluntary manslaughter is that the homicide be committed upon a sudden quarrel or in the heat of passion.” Sudden fear falls under the “heat of passion” category. Such emotion-driven killings, if not rising to self-defense, aren’t justified but “deserve lesser punishment” than calculated murder. The article then explains that in New Mexico manslaughter can be presented to the jury as a conviction option either by the prosecutor charging it as a separate crime or by the defense raising it in mitigation of a murder charge. In other words, by not charging the officers with manslaughter in this case, the prosecutor has left it up to the defense attorneys to decide whether to give the jury that conviction option.

This is crucial, and this omission by the prosecutor appears (to me, at least) calculated to ensure the officers’ acquittal while going through the motions of pretending to prosecute them in order to placate public outrage over this police shooting. As the law review article points out, “if the prosecutor thinks that the claim of self-defense may prevail, he may request a voluntary manslaughter instruction predicated on a provocation of fear. This would avoid a complete acquittal.” But, at least according to my understanding of New Mexico criminal law, the prosecutor can’t request that instruction if she doesn’t charge the officers with manslaughter. In that event, only the defense can request a manslaughter instruction.

And they won’t. Why? Because Boyd was brandishing two knives at the officers when they approached him. No jury is going to convict the officers of murder, given that fact. This case is tailor-made for a defense strategy of all-or-nothing, i.e., forcing the jury to choose between murder or acquittal, with no in-between option. The chances of a successful prosecution on those terms are little to none. In other words, by bringing only murder charges against the officers, the D.A. has set up this prosecution to fail. And that almost certainly is deliberate.

But why shouldn’t it fail? Given that Boyd threatened the officers with knives, why should the officers face charges at all? And if they do, why shouldn’t they be acquitted? The answer is subtle, and will fly over the heads of people incapable of critical thinking, but in essence, the officers should be prosecuted and go to jail because killing Boyd wasn’t necessary.

This answer would be different if Boyd had attacked the officers with his knives. But he didn’t. The police dash-cam video shows Boyd trying to surrender. Even in war, the laws of war and rules of engagement don’t allow soldiers to shoot a surrendering enemy soldier. In civilian life, it’s not self-defense for police to shoot and kill a surrendering subject. And under New Mexico law, if it’s not self-defense, it’s not justified and a crime of homicide has been committed.

But that’s not all. There are even deeper and more subtle reasons for prosecuting and jailing these cops. Part of a police officer’s job involves dealing with mentally ill people. In today’s society, with mental institutions closed and much of the nation’s mentally ill population dumped on the streets by a society that can’t stomach incarcerating the mentally ill and isn’t willing to pay for much treatment, many mentally ill people are homeless and live on the streets, and police frequently encounter them. Homeless mentally ill people are potential prey for robbers and other predators, so they’re naturally defensive, and can become aggressive in defending their turf, possessions, and persons.

Police are supposed to be trained how to deal with these encounters in a manner that is safe for both the officers and the mentally ill person. That does not include pulling out a gun and killing the mentally ill person if s/he becomes aggressive. This video of a Seatte police operation illustrates the right way to subdue a mentally ill man brandishing a sword:

In other words, it shouldn’t be necessary in most cases to use lethal force to subdue with a mentally ill person armed with a sword or knives who has taken up a threatening defensive posture but isn’t attacking. Police obviously deserve the option to defend themselves from death or bodily harm — that’s beyond argument — but they should not have the option to kill, at their discretion, if it isn’t necessary. Why? Because …

1) Police should be trained and required to deal with these situations with non-lethal means if at all possible, using lethal force only as an unavoidable last resort, because that’s their job;

2) Human life is too precious to allow it to be taken for any reason except unavoidable necessity; and

3) Police are trained, equipped, and employed — at great expense to taxpayers — to defuse these situations without loss of life if at all possible, and are the people we rely on to do that for society as a whole, therefore they should be held to a higher standard of behavior. Do you want your neighborhood policed by someone who is likely to pull a gun and shoot someone because s/he is fear-prone and no better at controlling his/her emotions than the average citizen? If they can’t handle the demands of the job, they shouldn’t be in this line of work. And if they screw up the job, and someone dies as a result, who didn’t need to die, there should be consequences.

If I were on the jury, I probably wouldn’t convict these officers of murder, given the circumstance of Boyd threatening the officers with knives. But unless the video showed him lunging at the officers, and it doesn’t, I would convict them of manslaughter. You can view that video yourself, and make your own decision, here:


By removing that option from the jury, the D.A. likely has ensured their acquittal, and might as well have not charged the officers at all. It’s unlikely this prosecutor is serious about reining in killer cops. In all likelihood, she’s merely playing a cynical game for public and media consumption.






Your Comment