Puff of Smoke

A grand jury couldn't recover what the Anayas lost, but it could, they believed, clear a path for justice.

Eventually, the words "grand jury" would become weightless symbols of a system Teresa believes betrayed her family. And the hope would disappear like a puff of gun smoke, back into the darkness that began to gather with that knock on the door.

A pair of New Mexico State Police officers in plain clothes arrived at Teresa and Jake Anaya's Bellamah neighborhood home on the morning of Nov. 7, 2013. Their 39-year-old daughter, Jeanette Anaya, had been shot by police, the officers said.

As Jeanette's father sat mostly silent, her mother responded with an escalating torrent of tears and screams. "Where is she?" Teresa demanded of the officers. "Is she going to be OK?"

Jeanette was not going to be OK. She was dead.

One of the officers told Teresa to get hold of herself. They provided no details. Soon after, they were gone.

Grief mounted for the Anaya family in the ensuing weeks, as they learned a series of grim facts: New Mexico State Police Officer Oliver Wilson, who had been on the force a year and a half, tried to pull Jeanette over on a highly questionable traffic violation—so questionable that Santa Fe police refused to join the ensuing pursuit. Jeanette didn't stop. Instead, she led Wilson on a chase across surface streets and through residential Santa Fe.

The pursuit ended when Jeanette slowed down, and Wilson used his police car to spin her silver Honda Accord around. Then, Wilson got out and fired 16 shots at Jeanette's car. One of the bullets went through the side of Jeanette's head; another struck the top of her back. Wilson's story about the shooting didn't completely square with a video captured on the dashboard camera of his patrol car, or with the version of events described by the passenger in Jeanette's car.

Wilson's fellow state police officers quickly finished a criminal investigation of the shooting, with no assistance from other agencies, and then passed it along to the district attorney, an elected official whose success depends largely on cooperation from police as witnesses in court prosecutions.

The Anayas began to feel the deck was stacked against what they wanted: criminal charges against Wilson.

They hired Tom Clark, a civil rights attorney, to help them navigate the process. In January 2014, less than two months after the shooting, Clark delivered some hopeful news: Then-1st Judicial District Attorney Angela "Spence" Pacheco would present the case to a grand jury later that month.

"We thought, well, good, it's going before a grand jury," Teresa says in an emotional interview last week. "I thought, OK, this is going to be easy—they're going to charge the officer. But it didn't happen that way."

In fact, it couldn't have happened that way. And that's by design.

Through a series of interviews and a review of the grand jury transcript, SFR and New Mexico In Depth are revealing for the first time the inner workings of the process that cleared Wilson and numerous officers before him of criminal wrongdoing in shootings. It is a system judges banned in Albuquerque for lack of impartiality and legally fragile underpinnings. It is a system that is used only for police shooting cases and only in two jurisdictions in New Mexico. It is a system that stumped a Columbia University law professor who specializes in police practices and criminal law.

It is a system that has confused lawyers, families of people shot by police and even grand jurors themselves. And it is a system that, after inquiries for this story, may not have a future in the capital city.

‘A Fallacy’

For at least the last 15 years, Santa Fe district attorneys have used "investigative grand juries" to review police shooting cases. Investigative grand juries have no targets, and they do not consider whether to charge someone with a crime. Also, state law clearly allows investigative grand juries in cases of institutions or public offices, but it's an open question as to whether police shootings fit that standard.

The panels are rarely used in New Mexico, and they differ in several ways from traditional grand juries, which are used in criminal cases involving ordinary citizens. Traditional grand juries consider criminal charges and vote on whether to indict their targets. They nearly always issue indictments, according to numerous prosecutors interviewed for this story.

In short, the grand jury that heard evidence about Wilson's shooting of Jeanette was powerless to charge the officer. Even if the 12 men and women on the panel wanted to issue an indictment, they couldn't have.

Instead, Pacheco presented the grand jury with a single set of instructions—for justifiable homicide by a public officer. Then, after a seven-hour presentation on Jan. 14, 2014, she asked jurors whether Wilson was "justified" under New Mexico law in shooting Jeanette.

He was, the grand jury decided, after deliberating for 48 minutes.

Through a state police spokesman, Wilson declined to be interviewed for this story.

He is still on the state police force, according to Sgt. Chad Pierce, a department spokesman. Pierce says the agency conducts internal affairs investigations of all police shootings to determine whether an officer violated department policies. Those probes are separate from the criminal investigations, which are turned over to prosecutors. Pierce refused to comment on the internal affairs investigation into Wilson's shooting of Jeanette. He would not say whether Wilson was disciplined or even whether the investigation is complete.

The Anayas did not know how the system worked until months after the grand jury ruled.

"I was blaming the grand jury for the longest time," Teresa says. "Then we realized that the justice system is very corrupt. The justice system, they let us down. They let us down. It was wrong. … It was never up to the grand jury. It was all up to the state police investigation and Angela Pacheco. I blame them, and I blame the system for allowing this to happen."

Clark, the Anayas' attorney, says the investigative grand jury system lacks teeth and produces no results. Rather, it serves only to ratify a prosecutor's decision. "It's not a system that serves anybody, and that's not a slam on law enforcement or prosecutors," he says. "It's about the structure. This is not an adversarial process. It's not designed as a fact-finding mission. The idea of an investigative grand jury is a fallacy."

Steve Allen, policy director for the American Civil Liberties Union of New Mexico, says transparency and accountability have become particularly important as scrutiny of police shootings has increased around the country.

"With everything this country has been through with police shootings in the past few years, it is even more dubious to be using a process like this to determine whether a shooting was legal, or even constitutional," Allen says.

Pacheco, a Democrat, was elected to two terms as 1st Judicial DA. Citing "family considerations," she resigned in December, with one year left in her second term. In an interview last week, Pacheco says police shootings, including the Anaya case, had nothing to do with her resignation. Police officers "weren't going to be treated any differently," she says. "In this jurisdiction, I'm not exactly cozy with the police."

Pacheco defends her use of the grand juries in the Anaya case and in what she estimates to be six or seven others she presented during her time as DA, saying the involvement of 12 citizens provided a check on her own conclusions about the shootings.

Cases fit two basic patterns, Pacheco says. Most of them were clearly justified shootings, according to her analyses. In "a few of them," there were open questions about the shooting officers' conduct. Pacheco would not say which category she believed best described Wilson's shooting of Jeanette.

Had she encountered a case in which an officer clearly committed a crime by shooting someone, Pacheco says she would have sought an indictment from a traditional grand jury. That never happened.

Teresa says that should have occurred in her daughter's case.

There's no question that Jeanette broke several laws that night. Yet her family says the system fell down. Wilson "needed to be held accountable for what he did," says Teresa.

Asked about Teresa's criticism of the process used to clear Wilson, Pacheco pauses for several moments.

"I can understand her feeling that [the grand jury presentation] wasn't a fair representation of what occurred," she says. "There is not an efficient or good process in the state of New Mexico to deal with police shootings."

‘What Are We Doing?’

There is one similarity between traditional grand juries and the panels used to review police shooting cases in Santa Fe: Both are conducted in secret. No one who's not part of the proceeding may attend. Transcripts and recordings are not made public.

But a 162-page transcript of the Anaya shooting presentation recently obtained from a source provides a glimpse into the way the unusual investigative grand jury worked.

Twelve people testified before the grand jury. Ten of them, including Wilson, were state police officers. Jeremy Muñoz, who was riding with Jeanette the night of the shooting, testified. So did a Santa Fe police lieutenant. Pacheco's presentation was built almost exclusively around the state police investigation.

Early testimony came from State Police Academy and use-of-force instructors. Among other points, she asked them to talk about "force science," a highly controversial policing philosophy that teaches officers to act quickly in tense situations. Force science and its developer, psychology professor William Lewinski, have played a role in clearing hundreds of police officers around the country in use-of-force cases.

Grand jurors watched the video from Wilson's dashboard camera and heard extensive testimony about the vehicle pursuit and the shooting.

Just after 1 am on Nov. 7, 2013, Wilson saw Jeanette turn right through a green light from Alta Vista Street onto St. Francis Drive. He believed she had committed a traffic violation, although the video does not appear to show one. Pacheco has herself said publicly, and she reiterated in her interview with SFR and NMID, that there was no infraction, but she did not press Wilson on it in front of the grand jury.

Wilson turned on his emergency lights and began to follow Jeanette. She did not stop. Instead, she led the officer on a winding racecourse through neighborhood streets, clocking speeds as high as 87 mph.

Muñoz testified that Jeanette did not stop because she said she had a warrant for her arrest on a misdemeanor charge of concealing her identity.

The pursuit neared Jeanette's intended destination: her parents' home. As she turned onto Camino Carlos Rey, Wilson nudged her car with his to stop it. What happened next is at the heart of the controversy over the shooting: What was Jeanette doing when Wilson began firing, and where was he standing at the time?

Wilson testified that he got out of his patrol car and walked toward Jeanette's Honda. According to his testimony, she reversed toward him, and fearing for his safety, he began firing. She then began to drive away, and Wilson kept firing as he ran alongside the Honda, emptying his magazine. A few seconds later, the Honda crashed into a cinder block wall.

Each of the other state police officers who testified about the shooting repeated Wilson's story.

Muñoz described the sequence differently. He said Jeanette backed into Wilson's police car in an attempt to position her vehicle for an escape. The officer did not begin firing until Jeanette was driving away from him, he told the grand jury.

Some of the action takes place outside the frame of Wilson's dashboard camera, so it is difficult to tell exactly what happened. But the audio and the video—taken together with a bullet trajectory report prepared by the state police—appear to more closely support Muñoz's story, not Wilson's, according to an analysis by SFR and NMID.

Citing established case law, Pacheco says in the interview that Wilson's perception in a rapidly unfolding situation was most important. "He is trained to stop the action," she says. Asked why she did not challenge Wilson on the witness stand, Pacheco says prosecutors are supposed to remain neutral in grand jury proceedings. "I couldn't get adversarial with the witnesses," she says. "It is up to the grand jury to determine the credibility of witnesses. We don't give them any signals. … Nothing is ever done to manipulate the grand jury."

Pacheco didn't apply the "signal-free" standard to all the evidence and testimony. She made sure jurors heard that Jeanette had cocaine in her system, a fact Pacheco prised from one of the state police investigators during her presentation. The investigator testified that a toxicology report showed 0.08 milligrams per liter of the substance in Jeanette's blood. One of the grand jurors pushed for context: What did that mean? Pacheco cut off the investigator's answer and said she didn't know.

In an interview with SFR and NMID, Dr. Harry A Milman, consulting toxicologist and president of ToxNetwork.com, characterized the amount of cocaine in Jeanette's system as "small." Milman said it wasn't enough to make any characterizations about Jeanette's behavior the night of the shooting, when she took the cocaine or how frequently she used the drug.

Despite her later comments about remaining neutral in grand jury presentations, Pacheco pressed Muñoz in the grand jury room. She challenged his version on multiple occasions. At one point, she asked him whether it was possible that Wilson began firing while Jeanette was driving toward the officer in reverse. Muñoz said it was not. After his testimony, Pacheco told him to wait in the hallway for her.

In an interview, Pacheco says she does not remember what the two discussed in the hallway. She recalls pressing him during his testimony because "he had been lying about something." She says she couldn't remember what it was. Muñoz was not charged with perjury.

The prosecutor's control over the process was evident in other instances, too. She stopped a state police investigator from talking about where Wilson was standing when he fired the shots, and she would not discuss it with grand jurors herself. In another instance, Pacheco halted a conversation among grand jurors about the video, which they had just watched for a second time.

One grand juror expressed confusion about the purpose of the proceeding. About midway through, he reminded Pacheco that for every other presentation he'd seen as a grand juror, there had been a target.

"There is no target," the DA responded.

"What are we doing?" the grand juror asked.

"You're going to hear evidence as to whether or not it was a justifiable homicide by an officer. All you do is 'yes' or 'no,'" she said, adding that she was bringing the case to the panel "because if I were to just do it on my own and not bring it to you, people would think I'm trying to cover something up."

‘That’s crazy’

The grand jury ruled that Wilson's shooting was justified. Only two investigative grand juries have reached a different conclusion in the history of their use in Santa Fe, officials say. Those "unjustified" cases involved former Santa Fe County Sheriff's Deputy Shawn Beck in 2003 and Santa Fe police officers John DeBaca and Stephen Fonte in 2014. Yet, none of the three officers was charged with criminal wrongdoing.

"What's the point, really?" asks Clark, the Anayas' attorney. He also represents the man who survived the shooting by DeBaca and Fonte in a potential civil case. "If a shooting is not justified, there needs to be some recourse."

Prosecutors in Albuquerque used investigative grand juries in police shooting cases for more than 20 years. A series of news stories about the process prompted judges to suspend its use indefinitely. The judges cited the appearance that prosecutors weren't impartial in the presentations and said the district attorney's office had no legal authority to conduct them.

Outgoing Bernalillo County DA Kari Brandenburg now decides in-house whether officers acted within the law in shooting cases. She posts investigative case files and a findings letter on her website.

Most district attorneys in New Mexico either review police shooting cases themselves or automatically appoint a special prosecutor. Only the 1st and 12th districts use the investigative grand juries.

Jeffrey A Fagan, a Columbia University Law School professor, studied the use of grand juries for police-related deaths in New York and reviewed the prosecutor's grand jury presentation for the fatal shooting of Michael Brown by Officer Darren Wilson in Ferguson, Mo.

"In most places, whether the grand jury is investigative or not, they can still issue a bill of indictment," Fagan says, adding that there haven't been many scholarly articles written on the issue.

"Relative to what we learned in New York, though, and the review in Ferguson, [the Santa Fe process] is very unusual. I've never heard of a process like the one you're describing. That's crazy."

Gov. Susana Martinez appointed Jennifer Padgett in December to finish out Pacheco's term as DA for Santa Fe, Los Alamos and Rio Arriba counties. Now, she has a decision to make with Santa Fe police officers' Jan. 27 shooting of Herman Flores, who authorities say exchanged gunfire with officers after robbing a store.

Padgett says in an interview that she anticipates taking the case to an investigative grand jury, "because it has been common practice."

But investigative grand juries may not have a future in Padgett's administration. She says she plans to examine practices around the country—including what took place in Albuquerque—to come up with something that "balances transparency, the community's interests and preserving and protecting the interests of law enforcement."

Teresa is still pushing.

"Nothing will ever bring my daughter back," she says. "She had such a big heart. She had so many friends, including friends in law enforcement. We're not giving up. We will continue to fight for her, for justice."

In 2014, Teresa met with federal prosecutors at the US Attorney's Office to ask them to prosecute the cop who killed Jeanette. The prosecutors declined after reviewing the case.

She didn't stop there, and more recently, she has found a new piece of hope. State Attorney General Hector Balderas has personally promised her his office will investigate the shooting. Teresa says a Balderas staffer told her again in December that Jeanette's death is under review.

James Hallinan, a Balderas spokesman, would not confirm or deny an investigation of the shooting. But in an email, he said Balderas' office "is aware of Ms. Anaya's concerns and has stated that we will review matters related to the proper procedure for examining officer involved shootings."

Those reviews would be a welcomed step for Teresa, who, more than two years after the shooting, still struggles to maintain her composure when talking about her daughter. At the time of the shooting, Jeanette had been living with her parents and enjoyed playing with her brothers' children and planting red poppies with her mother.

Whatever happens next, Teresa hopes investigative grand juries will never be used in police shooting cases again.

"That's where the system let us down, and I hope no one ever has to go through what we did," she says. "Some days are OK, and some days I totally fall apart. I don't know how it can possibly get better, really. I'll live with a broken heart the rest of my life."

This story was a joint effort between SFR and New Mexico In Depth as part of Jeff Proctor's "Justice Project."

Santa Fe Reporter