LAS CRUCES – “Courts and juries are beginning to understand that it is very, very important to hold cops who commit crimes accountable.”
Albuquerque-based attorney Sam Bregman, who faced police officers on both cases, pondered the conviction of former Minneapolis police officer Derek Chauvin on Tuesday for second and third degree murder and second degree manslaughter in the death of George Floyd after last May.
Bregman noted that a major contributor to this shift is the proliferation of videos, including cell phone recordings of viewers, in which Chauvin kneeled on George Floyd’s neck for over nine minutes.
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The ability to film these incidents and quickly distribute the footage via social media has ushered in “a new age” when it comes to holding law enforcement officers accountable, Bregman said.
“It’s not just the word of someone we believe will protect the community from someone who says, ‘He got me wrong,'” added Bregman during an interview pondering the chauvinist ruling.
“If you have a chance to see what happened on the video that was released before the trial began, people can be sure to form an opinion. And they have it all over the country.”
This poses new challenges for defense lawyers, especially to ensure a fair trial – and also issues for prosecutors, as Las Cruces attorney Amy Orlando noted.
Orlando is currently representing former Las Cruces Police Officer Christopher Smelser, who will be tried in July for second degree murder in the 2020 death of Antonio Valenzuela – another case that resulted in the death of a chokehold.
Bregman represented Valenzuela’s family in a civil case that resulted in a $ 6.5 million settlement with the City of Las Cruces.
“Social media clearly affects every step of our justice system,” said Orlando, linking her client’s treatment with coverage of the George Floyd case. Originally charged with involuntary manslaughter, Smelser was served on second-degree murder charges in local demonstrations over Floyd’s death for weeks.
During an early morning traffic obstruction in Las Cruces on February 29, 2020, Valenzuela escaped on foot from the police and led the officers on a car chase that ended in a fight in which Smelser used a neck brace until Valenzuela passed out and pronounced dead the scene was explained.
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The medical investigator’s office ruled that Valenzuela’s death was a murder the same week that footage of George Floyd’s death caused outrage and protests across the country, including in Las Cruces. Methamphetamine in Valenzuela’s system helped his death, the OMI report concluded.
Before the OMI report on Valenzuela’s death was released, local protesters were already comparing the two cases. New Mexico Attorney General Hector Balderas called for a nationwide ban on chokeholds. Smelser, who has been on administrative leave since the incident, has been fired. Orlando said there was no internal investigation.
While the protests continued well into the summer, Las Cruces City Council convened a special working session to discuss the use of force by the police. LCPD boss Patrick Gallagher announced his resignation, citing “recent events at local and national level”.
In July, the Attorney General took over the Smelser case and increased the charges for second degree murder. The city of Las Cruces settled with Valenzuela’s family and agreed to consider policy changes based on their recommendations, many of which were already in place, according to the LCPD.
Orlando argued that the timing of the Floyd events and the intense public interest, including comments made by local officials based on the coverage, influenced state actions regarding Smelser, including the more serious murder charges.
Social media, news literacy and jurors
Both attorneys said it was harder to find jury members who would not have settled on a case before going to trial.
“Lawyers on both sides of these cases are trying to find jurors who have not been harmed by what they saw, read, or heard in the media, and that is a difficult thing to do in this day and age,” Bregman said. “But I think the courts do a good job, and we do it through jury questionnaires in advance and through larger jury pools.”
Orlando, a former district attorney and district attorney for New Mexico’s Third Judicial District, said, “Sometimes the media can help you because it trains juries in ways that we can never do in the short time we’ve got the courtroom to defend our attorneys “It’s difficult for this very reason: sometimes it educates the jury wrong.”
According to Orlando, social media has changed the way people read the news – and for too many, it means getting their information from video clips and headlines.
“They watch people at lunchtime or somewhere else and they just flip through, scroll through and sadly just read the headlines and never get to the heart of the story,” she said. “You’re stuck in your head with that headline, and it depends on how the media puts the headline.”
Orlando participated in the 2003 prosecution of the infamous Baby Brianna case following the death of Brianna Lopez, a toddler under 6 months in Doña Ana County. The case, which involved frequent physical and sexual abuse by family members, sparked efforts to strengthen child abuse laws in the state.
That trial was moved to Albuquerque because “the media was so tough on them in Las Cruces and southern New Mexico,” Orlando said. “That was a good thing because there was someone who spoke up for it, but that was back then … before all this social media was around, people really had to read the whole story.”
Bregman acknowledged that with citizens’ video cameras changing the landscape, “more and more of these cases are being brought to justice in the media before the case even comes to trial.”
However, he said the video, while not telling the full story of what happened, can be clearly portrayed when an officer is forced to make a decision in a split second as opposed to “a conscious decision to use excessive force”.
The footage of Chauvin kneeling on the back of Floyd’s neck in death was one instance where the video made this clear. Bregman argued, “I don’t think anyone can see this and think they didn’t commit murder.”
“Sometimes the press colors it from their point of view, but videos change the pitch when it comes to tracking police officers, and rightly so,” he said.
2 hours and 12 minutes: A timeline from the burglary to Valenzuela’s death
Public comments on legal proceedings
As Orlando was considering finalizing Chauvin’s trial, he said it was problematic for celebrities and officials to comment publicly on what verdicts he should make before the trial is complete.
When she came to demonstrations in front of the courthouse and across the country, she said, “When political or influential people are talking about a case … the jury can feel and know” unless they are confiscated.
The jurors in Derek Chauvin’s trial were confiscated during the deliberations. Commenting on Monday that the evidence against Chauvin was “overwhelming”, President Joe Biden of the Oval Office added, “I wouldn’t be saying that unless the jury were confiscated.”
The process was still ongoing, however, when US Representative Maxine Waters, D-Calif., At a rally on April 17 in Minneapolis called for a guilty verdict to encourage protesters to become “more active” and “more confrontational” if they did the jury acquitted Chauvin.
Judge Peter Cahill, chairman of the Chauvin trial, said the comments could be subject to appeal.
“I wish elected officials would stop talking about this case, especially in ways that disregard the rule of law and justice,” Cahill noted in a USA Today report.
“Sometimes people who believe they are helping a cause can hurt a cause,” Orlando said. “They should wait to leave their comments until after the verdict, after the jury goes home and the process is over. Then it is time to leave comments. It is very worrying when people support one or the other Cross out the page because the jury feels the pressure. “
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Algernon D’Ammassa can be reached at 575-541-5451, [email protected], or @AlgernonWrites on Twitter.