Dirty, Dirty Brandenburg

Since my last post about cops in Albuquerque, which included an update about the indictment of two cops for the killing of James Boyd, people have been sending me stories about how the cops have targeted District Attorney Kari Brandenburg in retaliation.  I’ve resisted discussion of this, both because it’s friggin’ Albuquerque (which isn’t as fascinating as, say, New York) and because Brandenburg is the DA.

What I mean by that is that anyone who wants to be the District Attorney takes on turf fraught with choices, many of which carry some public or private animosity.  When Daniel Donovan, the District Attorney of Richmond County (that’s Staten Island to you New Mexicans) sabotaged his grand jury presentment in the Eric Garner killing, I challenged his ethics. Same with St. Louis DA Bob McCulloch in the Michael Brown killing.

The argument in both cases was that the public was calling for blood, and the District Attorneys felt compelled to put on a play, present the case to a grand jury, while believing there should be no indictment.  Rather than sabotage the presentment, I argued that their ethical duty was to announce that they would not indict, because they did not believe an indictment was proper, and suffer the consequences.

Most people thought this ridiculous. How could the prosecutors not bend to the will of the public?  What choice did they have?

The choice was the exercise of their duty in their office. Like the notion underlying “honest services theft,” nobody promised them they could avoid public censure for their choices by making a sham presentation to calm the angry natives, while simultaneously achieving their desired goal of “no true bill” by making sure the presentation to the grand jury would be a massive failure.

These guys ran for office. They wanted to be the big guys, the District Attorneys, adored and appreciated by all for saving society from the bad dudes. They want people to name streets after them, just like Frank Hogan got a block named after him with only one address on it.

The price is doing their job, even if the townsfolk march on the district attorneys’ office with torches and pitchforks.

Same for Albuquerque DA Kari Brandenburg.  The difference here is that the people with the pitchforks are cops, who want to storm her office because she’s indicted two cops and means to convict them.

 Just a day after DA Kari Brandenburg announced for the first time in recent memory that she would pursue criminal charges against cops for an on-duty deadly shooting, there was another police shooting in the city, which has seen a spate of fatal police shootings since 2010 at eight times the rate of New York City.

And when a prosecutor from Brandenburg’s office went to the scene and sought to attend an investigative briefing, as prosecutors had been doing for years as part of their collection of evidence, police wouldn’t let her in. They claimed that now that the DA’s office had filed criminal charges against a cop, they had a “conflict of interest” and should be excluded.

“Clearly, this could compromise the integrity of the investigation of this shooting,” an outraged Brandenburg told KRQE of the police department’s behavior.

Really? So indict them too for obstruction.  They already hate you, so who cares if they double hate you?

CREDIT: AP Photo/Russell Contreras


Most prosecutors who see this happening to Brandenburg will get the message. The question is which message they get. Will it be the “screw with us cops and we will ruin you” message, or the “we’re dirty and will use any ploy to coerce you to be as dirty as we are” message?

But no district attorney with half a brain doesn’t already realize the tenuous position he holds.  This is the “which part of the body is in charge” joke, played out in public.  When they work together, it’s smooth and happy. When they are in conflict, it’s war.  But each is part of the prosecutor’s job, whether it’s to pretend cops can do no wrong or to prosecute the people upon whom they depend.

That Kari Brandenburg is doing her job where so many other prosecutors fail miserably to excise the cancer in their own body is what she should be doing. She doesn’t get a red balloon for doing the job she swore to do. Some might believe she should, given how other prosecutors fail, but that misses the point: The ones who fail get castigated for their failure. The ones who do their job of prosecuting cops who kill guys are merely doing the job to which they were elected.

Sure, I applaud the fact that Kari Brandenburg is doing her job, even though it means indicting cops and suffering the well-oiled cop machine to harm any outsider who might challenge their hegemony.  But we should expect no less from District Attorneys. This is why we vote for them, elect them, pay them.

Rather than applaud Brandenburg, we condemn the police who have cranked up the machine to destroy Brandenburg politically and personally.  Then again, we see this every time cops get challenged, even questioned.  Each time, the issue is presented for public consideration of who runs the government, the cops or the people.

So let them smear Dirty, Dirty Brandenburg.  And let the public watch and decide which part of the body politic is in charge.

24 thoughts on “Dirty, Dirty Brandenburg

  1. bmaz

    I don’t know that it is all that clear Brandenburg really means to convict them; if so, you do the 1 hour grand jury and get on with it all. Instead she has chosen the public prelim hearing process. She can still present the case in a way that leads any court to not find probable cause. If that is her goal, doing it in public is actually smart. So, we shall see how she plays it.

    As to your other point, charge the cops with obstruction. Man, that would be delicious. And appropriate.

    1. SHG Post author

      You may be right (since we will eventually find out, one way or the other), but I suspect that if she had given the cops the wink, they wouldn’t be trying to rip her a new one. And if she wasn’t out to convict, she would have given the wink because this can’t be as much fun for her as it looks.

      1. bmaz

        You would think. Then again, ABQ cops just may be so belligerent and out of control that even the wink is just too much for their little blue fee fee’s.

    2. Piedmont

      Grand juries are bad because the prosecutor has too much control over a secret process (Eric Garner). Okay, sure. Putting a defendant on trial on hopeless evidence is bad (George Zimmerman). Got it; agreed.

      So now giving a defendant a preliminary hearing open to the public is code for the prosecution tanking the case? Do you honestly think that the prosecutor is going to openly throw a case, especially if it means infuriating the people her office relies on as witnesses in most of her cases? Charging a cop with murder is like trying to kill the king: don’t do it unless you’re awfully sure you’re going to succeed.

      Or should prosecutors just start directly indicting defendants? I’m sure defense attorneys would LOVE missing out on the chance to catch a witness in inconsistent testimony or get a preview of how strong the prosecution’s case really is.

      1. SHG Post author

        Yeah, yeah, yeah. We’ve been though this on the why we don’t want to get rid of grand juries thing. Bmaz raised a doubt. There is the potential for doubt and abuse anywhere along the line. Got it.


        Charging a cop with murder is like trying to kill the king: don’t do it unless you’re awfully sure you’re going to succeed.

        This should be true. But it’s not.

  2. Stryker

    If giving her a red balloon makes it more likely other DAs will do their jobs, then she can have a whole flock of them.

    1. SHG Post author

      If the locals pop the cops’ balloons, it will do more. And it wouldn’t hurt to do so by supporting her for being a DA who does her job, no matter that the defendants wear a shield or not.

  3. Gavin Peters

    Perhaps the root of this conflict of interest is in the DAs monopoly on criminal prosecution. Why have we given the DA this monopoly?

    What harm to the public is there is an interested party begins a criminal prosecution in a case where the DA has declined? There’s obviously a lot of concern about attaching double jeopardy and coordinating redundant prosecutions. But if the DA won’t prosecute, why not let SHG, the victims family, or any other organization launch a criminal prosecution?

    1. SHG Post author

      Because criminal law is not a private cause of action, nor would we ever want it to be. That could prove disastrous.

      1. Not Jim Ardis

        I just had the image in my mind of a Soros-funded team of prosecutors arresting everyone in the Bush administration to try them for any number of “crimes” they committed, and then an Adelson-funded group arresting everyone they can find that used to work for the Obama Administration for the same thing…

        Such is the result of letting criminal prosecution go private-sector.

      2. Gavin Peters

        I’d love to hear more about why this would be a disaster.

        Canada and the United Kingdom still allow private prosecutions. The crown can and does intervene and drop sensitive cases; in Ontario a private prosecution for an indictable offence (roughy “felony”) must be taken over by the crown. I submit that while Canada and the United Kingdom are obviously disasters, it’s not clear private prosecutions are why.

        I think I understand why we have public prosecutors; it’s a logical follow-on to creating a public police force. It’s almost two hundred years now that we’ve had both police and public prosecutors. The step I don’t understand is the next step America took of foreclosing private prosecution. It’s probably related to why America uses the smaller pints.

        1. SHG Post author

          And I’d love to be 6’11” so I can play basketball for the NBA. We all suffer disappointments in life. My dream will never be realized. I wish you the best of luck on yours.

          In the meantime, I offer my thoughts on the Canadian legal system.

        2. Fubar

          Britain’s last case of crim’nal appeal [1]
          Was almost big bloody deal.
          Thornton shook Ashford’s rattle,
          Moved for trial by battle,[2]
          So Ashford backed off and got real.[3]

          FN 1: Criminal Appeal, private criminal prosecution, was abolished by act of Parliament, along with trial by combat in 1819.

          FN 2: It is not known whether Thornton’s barrister William Reader was always a bloody genius, but he certainly made one brilliant motion.

          FN 3: Cf: Ashford v Thornton (1818) 106 ER 149.

        3. Piedmont

          Virginia has a provision for private prosecution. For misdemeanors and traffic offenses (and felonies if a prosecutor or cop agrees), a regular citizen can file a criminal complaint. It’s mostly for misdemeanors that didn’t happen in the officer’s presence, although it can also be a safety valve for crimes where the investigating officer was being hard-headed. The Commonwealth’s Attorney (what VA calls a DA) has the right to take over the case, though, and that includes asking for it to be dismissed.

          In practice, it’s a mixed bag. For the misdemeanors done outside the officer’s presence, it works fairly well. For cases where the officer didn’t think there was probable cause, every time I’ve seen it come to court, it’s been an absolute trainwreck of lying, vindictiveness, and general craziness.

  4. Pingback: Cops Lie: The People v. the NYPD | Brooklyn Criminal

  5. ExCop-LawStudent

    Well, I’m surprised. Private prosecution has been around in the relatively recent past. In Rhode Island, see Cronan ex rel. State v. Cronan, 774 A.2d 866 (R.I. 2001) (R.I. court has jurisdiction to hear and decide private prosecution for assault). In North Carolina, see Jones v. Richards, 776 F.2d 1244 (4th Cir. 1985) (no constitutional right to public prosecutor, private prosecutor is also allowed to handle civil case arising from the same incident). In Ohio, see State v. Ray, 143 N.E.2d 484 (Ohio App. 1956) (no statutory or constitutional prohibition on private prosecution in municipal court). In Virginia, see Cantrell v. Commonwealth, 329 S.E.2d 22 (Va. 1985) (State due process rights violated when private prosecutor who is assisting the public prosecutor in murder case also handles civil case).

    In New York, it is not authorized, see Matter of Sedore v. Epstein, 864 N.Y.S.2d 543 (App. Div. 2008) (District Attorney may not delegate prosecution to an attorney hired by complaining witness).

    1. SHG Post author

      Just because one commenter decides to go off on a total tangent does not mean you have to follow.

      Am I being clear?

  6. Wrongway

    Hmm.. How would a judge be swayed by ‘outside influences’ if this came into his courtroom ..

    “You Cops Are Great Guys!!” = his ruling being enforced..


    “You Cops Are Dirt Bags!!” = his car might get keyed..

    Just a thought..

  7. David Woycechowsky

    I know you are not after kudos, especially from the likes of me, but thanks for this helpful post. I really didn’t know how to feel about this story.

  8. Pingback: Police use of force roundup - Overlawyered

  9. Pingback: But For Video: Philly Scooter Edition | Simple Justice

Comments are closed.