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Police reform. Transparency. Accountability. These are the buzzwords surrounding policing in America. People are taking a long, close look at policing in this country and trying to restore some type of faith in the criminal justice system. But what if you can’t trust the cops? What if the criminal justice system itself has decided that certain officers aren’t trustworthy? What if that officer was an investigator on a case and the case was dismissed because the courts determined that the officer’s testimony couldn’t be trusted? What if that officer was still allowed to keep their job?
Attorneys around the country keep lists of officers that are deemed untrustworthy as witnesses or investigators because of misconduct or internal affairs investigations in their personnel records or in publicly disclosed cases. It’s what is known as a Giglio or Brady list, and in most states it’s a private list kept by prosecutors and defense attorneys. Essentially, it’s a “Bad Cop List.” And it hasn’t made public in New Mexico. Until now.
What is a Giglio disclosure?
In addition to sharing information with defendants that could show their innocence, prosecutors have a constitutional duty to share information that impacts a witness’ credibility. These disclosures are known as Brady-Giglio disclosures, named after the United States Supreme Court cases Brady v Maryland and United States v. Giglio, in which the court ruled that a defendant’s due process is violated if prosecutors suppress evidence that may be useful to the defendant. For example, if an internal investigation found that an officer was untruthful about conducting an investigation or lying on a timesheet, that finding could impact how a jury perceives their testimony on the stand.
What it boils down to is that a police officer can have dishonest and possibly illegal behavior in his or her file and continue to be employed as a police officer. Most attorneys keep this list as a file or an internal database for reference when a case lands on their desk and they need to reference who the officer is, what cases they’ve been involved in and if there are any past issues that might affect their credibility. These lists are generally not public. If an officer has a credibility issue, the prosecutor is only required to submit a Giglio disclosure to the defense and the court.
In October of last year, however, Bernalillo County District Attorney Raul Torrez declared his office was going to publish the names of officers on their website who had a Giglio disclosure at the same time they filed paperwork with the court. Publicly naming officers isn’t a requirement of a prosecuting attorney, but notifying the court and the defense counsel in a trial is.
Since February the District Attorney’s Office has published the names of nine officers with Giglio disclosures. To establish this list, the DA’s office sends a questionnaire to officers who are witnesses, or investigators, in active cases with upcoming pretrial interviews or trials. This is key information—involved in active cases—meaning if an officer has something in their file but is not currently involved in a pending case, their name isn’t going to be publicized.
So how does the public know which officers might be trustworthy? The simple answer is they don’t. The DA’s office is careful to note that, “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.” They also note that, “The vast majority of law enforcement officers have no history of conduct or bias that would be subject to Brady-Giglio disclosure”—meaning not all cops are bad.
While publishing these names may be a step toward accountability and transparency, there’s not a whole lot of information on that list. Each Giglio disclosure published on the DA’s website is simply the document that’s presented to the court: The name of the officer in question, their agency, the defendant and the case number. There’s no mention of what the Giglio issue is, whether it’s a small or much larger issue, when it happened or how it relates to the case. So those who are interested must hunt down all of that information on their own. At least what is publicly accessible. And it’s not much.
So why aren’t officer’s records made public? Because usually they’re considered to be part of their personnel records. And those records are more often than not sealed for privacy reasons. If an officer is involved in an internal investigation, then any information surrounding that investigation is considered a personnel issue, and details aren’t required to be released. Problem officers who get into trouble for misconduct can often jump from department to department while their certification remains intact.
Max Pines has been an attorney with the Public Defender’s Office for seven years. He says that Giglio disclosures are extremely important to defense counsel in order to ensure a fair trial and hold officers accountable. “If the public believes there isn’t any accountability system for police officers if they make a mistake or do something illegal, then it undermines the public’s faith in the justice system.” He says a perfect example is with the case of Derek Chauvin, the Minneapolis police officer who was convicted of killing George Floyd. Chauvin had 18 internal investigation complaints filed against him prior to killing Floyd. Another Minneapolis police officer at the scene that day with Chauvin was Tou Thao, who had six internal investigation complaints in his record, including an excessive force lawsuit.
The Albuquerque Police Dept. says it requires its officers to disclose anything which might have a negative impact on their credibility as a testifying witness or investigator. APD says that it takes all misconduct violations in account when determining an officer’s employment, and every allegation is investigated. The Sheriff’s Dept. errs on the side of the officer. “Just because a Giglio disclosure is made does not equate to an issue of trustworthiness in all instances,” said Bernalillo County Sheriff’s Dept Spokesperson Jayme Fuller.
When an officer is accused of serious misconduct, New Mexico Law Enforcement Academy Board is supposed to be notified. A KOB investigation revealed that LEA officer misconduct investigations are seriously backed up due to understaffing. Unlike many other states, the Attorney General’s Office in New Mexico doesn’t require police agencies to submit misconduct reports. Ultimately, the DA’s office has its own internal process to determine what should then be disclosed to the defendant and the court in a particular case.
Which Cops Are On the List?
What we don’t know is why certain officers are on the DA’s public list. What we do know is there is a correlation between certain officers on the list and public reports alleging misconduct as well as some officers being named in civil rights lawsuits.
For example, the DA’s office has filed one Giglio disclosure involving ex-APD officer Fred Duran. Duran came under scrutiny during the murder investigation of 9-year-old Victoria Martens when Duran and another APD spokesperson told reporters that investigators had met with Victoria’s mother before her death to investigate her claim that her boyfriend tried to kiss Victoria. Officers never investigated the incident. Duran was terminated after APD determined he violated standard operating procedure in multiple instances. In November the DA’s office dismissed 19 DWI cases in which Duran was a witness. The DA’s office told media at the time that there are potentially 46 more cases that could be dismissed.
The DA has filed two Giglio disclosures involving an Albuquerque Police Dept. lab technician. One of those cases is a vehicular homicide case against Jonathan Martinez. In 2019 54-year-old Judy Jaramillo and her dog were killed after being hit by then-19-year-old Martinez. It was determined that Martinez was driving drunk. The second disclosure is an aggravated DWI case from 2020. In Nov. of 2020, a report surfaced from Albuquerque Police Academy. The report states that evaluations prepared by cadets in May of last year, in a class where this APD lab technician taught about blood alcohol levels, state that he made racially and gender-biased comments. In addition to the class evaluations, an anonymous email was sent to APD Internal Investigations. The email alleged that he made discriminatory and harassing comments about African Americans and Native Americans, and described himself as a misogynist who treated female cadets poorly. Report of the evaluations made it all the way to an APD commander who, in a memo to Human Resources, recommended that “[His] employment with APD should be examined in great detail, and [he] should be banned from the Academy for all future training.” He is still employed with APD as a technician performing key lab tests, and his testimony is critical for each case he touches.
Another APD officer was named in two civil rights lawsuits for use of force.
Prosecutors have listed a Giglio disclosure for another APD officer who was also named in an ongoing lawsuit for his role in a deadly pursuit and car crash which killed a 15-year-old. The lawsuit alleges that officers violated pursuit policies when the teen was killed.
- Fred Duran – Albuquerque Police Dept.
- Angelo Lovato – Albuquerque Police Dept.
- Wayne DeChano – Albuquerque Police Dept.
- Steven Gushiniere – Albuquerque Police Dept.
- Early Nagy – Albuquerque Police Dept.
- Robert Telles – Albuquerque Police Dept.
- Ramiro Garza – Albuquerque Police Dept.
- Nicholas Carlson – NM State Police
- Jesus Roybal – Bernalillo County Sheriff’s Office
What Happens Next?
Have these “Bad Cops Lists” changed the way we think about policing? Will making them public solve anything? The Public Defender’s office hopes it might keep officers from moving around the state, agency to agency. But what happens if an officer with a credibility issue is a key witness in a homicide? Or when close to 60 cases could be dismissed because an officer’s credibility was completely undermined as in the case of ex-APD officer Fred Duran?
Ultimately, making these officers names public is a step toward transparency. Whether or not it results in any type of reform or accountability are questions that still need answers.