APD officers’ murder trial goes to jury

Dominique Perez, center, listens to closing arguments Thursday in Albuquerque. Marla Brose/Albuquerque Journal

Albuquerque Police Department officials have altered and, in some cases, deleted videos that showed several controversial incidents, including at least two shootings by officers, the department’s former records supervisor has alleged in a sworn affidavit.

Three officers’ body camera videos that captured events surrounding the fatal shooting of 19-year-old suspected car thief Mary Hawkes in April 2014 were either altered or partially deleted, according to former police department employee Reynaldo Chavez’s nine-page affidavit. Filed Oct. 28, his affidavit is part of a civil rights lawsuit by Hawkes’ family against the city of Albuquerque, the police department and Jeremy Dear, the officer who shot her.

Another allegation is that surveillance camera video from a salon showing Albuquerque police officers shooting Jeremy Robertson in June 2014 bore “the tell-tale signs that it has been altered and images that had been captured are now deleted. One of the deleted images captured the officers shooting Jeremy Robertson.” Robertson was a police informant and suspected probation violator.

Chavez also said that “SD cards” from cameras were easy to make disappear, and that he witnessed Assistant Chief Robert Huntsman say “we can make this disappear” when discussing a particular police camera with an SD card in it, according the affidavit. SD cards are memory cards used in portable devices, including cameras.

Chavez goes on in the sworn testimony to say Albuquerque officers in multiple divisions, including those involved in police shootings and those assigned to specialized units, were instructed not to write reports until after a review of their videos. If the videos had no images considered harmful to the department, the officers were permitted to write in their reports that “they had recorded a given incident.” But if images deemed “problematic” for the department were found, officers were instructed not to mention a recording in the report or to write “the recording equipment had malfunctioned” or the officer had failed to turn it on.

When officers already had written reports that described recordings, “the video would be altered or corrupted if it was damaging to the police department.”

In his affidavit, Chavez says he reported to a department supervisor that altering or deleting video evidence was “illegal and unlawful.” He says he was told by then-Deputy City Attorney Kathy Levy she was “handling the situation.”

Levy, who retired from the city last year, said Friday that Chavez’s allegation that she told him she was handling the situation is “absolutely not true.”

“We never had any such conversation,” Levy said.

Thomas Grover, Chavez’s attorney, said Chavez stands by the affidavit.

Police Chief Gorden Eden said Friday he was not aware of Chavez’s allegations. Asked about officers’ ability to delete or alter videos, Eden declined to comment.

Huntsman did not respond to an email. Police spokesman Fred Duran said he was not familiar with the affidavit or its claims and referred a reporter to the city’s legal department. City Attorney Jessica Hernandez did not respond to an email seeking comment.

The Hawkes family also has sued the city under the Inspection of Public Records Act for access to audit logs that would purportedly show who altered or deleted videos. The city has refused to release those records. In response, the family’s attorneys attached Chavez’s affidavit to a motion filed Thursday in state District Court to compel release of the logs.

The police department placed Chavez on leave in April 2015 while it investigated unprofessional conduct in the records division, which he led. Ultimately he was fired. In a whistleblower lawsuit he filed against the city in January, Chavez claims he was fired for raising concerns about department higher-ups’ unlawful orders that forced him to deny public records requests in high-profile cases. The city denies those claims, and the case is pending.

His new allegations have spurred fresh inquiries in a police shooting that led to murder charges against Keith Sandy and Dominique Perez, who were police officers in March 2014 when they shot homeless camper James Boyd. The case ended in a mistrial last month.

Sandy testified at trial that he believed he had turned on his Scorpion brand body camera before the shooting, only to learn later that no video was recorded.

Memory cards from Scorpion cameras were often “bleached,” deleted or altered at APD, Chavez says in his affidavit. He mentions the Boyd shooting and alleges that he was ordered to “deny, withhold, obstruct, conceal, or even destroy records” related to that case and others. But he does not mention video from Sandy’s camera specifically.

Special prosecutor Randi McGinn offered Sandy a deal after the mistrial: plead guilty to a fourth-degree felony count of conspiracy to commit aggravated battery and agree never to work as a police officer again, and charges would be dismissed against Perez. In a letter to Sandy’s lawyer, Sam Bregman, dated Nov. 9, McGinn wrote: “In evaluating this plea offer, please be advised that we have been informed of some disturbing allegations about APD erasing, altering and corrupting lapel camera video in police shooting cases, particularly those involving Scorpion lapel camera SD cards. Investigation of these new allegations will be part of any ongoing prosecution in this case.”

Sandy rejected the plea bargain.

Bregman did not return calls seeking comment Friday about the ongoing investigation.

District Attorney Kari Brandenburg said Friday that she had just become aware of the affidavit and was contemplating her office’s response. She said she sent the affidavit to the U.S. Attorney’s Office.

“These are extremely concerning allegations,” Brandenburg said. “This throws everything into question. As prosecutors, we have to rely on what we get and the integrity of everyone in the process. These kinds of allegations raise so many questions.”

Elizabeth Martinez, a spokeswoman for the U.S. Attorney’s Office in Albuquerque, declined to comment on Chavez’s allegations.

The Albuquerque Police Department shelved most of the Scorpion cameras in 2013 in favor of newer models manufactured by Taser International Inc. With the Taser cameras came a five-year subscription to the company’s cloud-based storage system, Evidence.com.

Evidence.com allowed Chavez and a handful of others at the police department to “edit lapel camera video in any number of ways,” according to the affidavit, including by “inserting or blurring images on the videos or by removing images from the video.”

“I was able to see, via the Evidence.com audit trail, that people had in fact deleted and/or altered lapel camera video,” he says in his affidavit. Furthermore, Chavez says that APD employees uploaded video from other sources, such as cellphones and surveillance cameras, to Evidence.com and altered those as well.

Also, Detective Christopher Whigham trained the department’s public information officers, command staff and officers in specialized units how to delete and alter videos, according to Chavez.

Whigham referred a reporter to the department’s spokesman on Friday.

Chavez accuses Detective Frank Pezzano of deleting and altering videos, and his affidavit says a police lieutenant identified only by the last name of Aragon allowed Pezzano to do this.

New Mexico In Depth asked for comment from Pezzano and the lieutenant through the department. The department did not respond before publication of this story.

A manual for Evidence.com published online last month by Taser supports many of Chavez’s claims about the process for editing or deleting videos.

Anyone with administrator privileges at an agency can delete videos, the manual shows. Those clips remain in a queue for seven days. And administrators can “mask” entire videos or portions of them using four different “blur levels.” Audio also can be removed.

The police department has released videos that have been heavily blurred in spots, including in a case in which an officer ran down a fleeing suspect with his truck, and another in which officers stormed a legal syringe exchange in search of two drug-trafficking suspects.

Then-Officer Dear fatally shot Mary Hawkes in April 2014 after a foot chase. She was suspected of stealing a truck. Controversy surrounded the case from the beginning. Dear says Hawkes turned to face him, then pointed a gun at him. But a forensics analysis conducted by the Hawkes family’s expert shows that she was turning away from him and falling to the ground when he shot her in the back of the head.

Dear’s camera was functioning on the night of the shooting, but the police department has said it did not record any video. Dear has since been fired for insubordination and other alleged infractions, and he is fighting to get his job back. In a deposition for the civil rights lawsuit, he asserted his Fifth Amendment right to remain silent more than 130 times.

But three other officers’ cameras captured some of the events of that night. According to Chavez’s affidavit, one officer’s video was “altered by changing the gradient of the resolution on the video.” Twenty seconds were deleted from another officer’s video. And officer Tanner Tixier’s video, which shows the shooting from a distance, “has been altered by using the functionalities within Evidence.com where you can make … the video blurry or unclear.”

None of the three videos from the Hawkes shooting appears to be blurred at the same level as videos APD has released from past incidents.

Officers Anthony Sedler and Ramon Ornelas fatally shot Jeremy Robertson in July 2014. According to a lawsuit filed by his family, Robertson was a law enforcement informant, and he was wanted on a warrant for violating his probation on the day he was shot.

The police department has released surveillance video that shows Sedler and Ornelas firing shots from behind a dumpster and other videos from the day of the shooting. But according to Chavez’s affidavit, portions of a video from a salon’s surveillance camera that showed the shooting have been deleted.

Chavez’s allegations mark the second time claims of deleted videos have been raised about the police department. For years, individual officers had the option to delete videos from their Scorpion cameras and, later, from Evidence.com. However, no allegations have surfaced until now of videos being deleted or altered in specific cases.

The affidavit surfaces as the police department struggles to comply with a court-enforced settlement agreement with the U.S. Department of Justice aimed at fixing a “culture of aggression” within the department that resulted in one of the nation’s highest rates of police shootings.

After a 16-month investigation, the Justice Department issued a searing set of findings against the Albuquerque Police Department. Among its many criticisms, the Justice Department found that “officers have consistently failed to follow the department’s lapel camera policy and have failed to record critical encounters.”

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