October 14, 2020

Sheriff Manuel Gonzales, III

Bernalillo County Sheriff’s Department
400 Roma Ave NW
Albuquerque, NM 87102

VIA ELECTRONICALLY MAIL: Mxgonzales@bernco.gov

RE: Implementation of ​Giglio​ Policy

Dear Sheriff Gonzales,

From pretrial detention for dangerous individuals to independent investigations of officer

involved shootings, I have been advocating for and advancing reforms both to enhance public
safety and to restore the public’s faith in the criminal justice system. I write to you now to inform
you of an important reform I am implementing designed to increase transparency while holding
prosecutors and law enforcement officers accountable. At the heart of this reform is the principle
that those individuals entrusted to enforce the law must themselves be upstanding in character.

As you are aware, prosecutors have a duty to provide defendants all known evidence that tends
to negate or mitigate a defendant’s guilt. The U.S. Supreme Court has expanded this
responsibility to information that impacts the reliability of a witness’s testimony, such as bias,
specific instances of dishonesty, or criminal convictions. These disclosures to the defendant are
generally known as ​Giglio​ disclosures, named for the U.S. Supreme Court case that established
this requirement. For witnesses who are police officers, the prosecution is required to investigate
whether ​Giglio​ material exists.

My office joins a growing number of prosecutor offices around the nation that are embracing
reform and police accountability by formalizing this ​Giglio​ inquiry process. Historically,
requests for ​Giglio​ material have been done on a case-by-case basis and the results of earlier
Giglio​ inquiries have not been searchable. Beginning in November my office will start

520 Lomas Boulevard NW, Albuquerque, NM 87102 

implementing a formal and searchable system. Law enforcement officers listed as witnesses in an
open case will receive a ​Giglio​ questionnaire electronically. The questionnaire will guide officers
through a series of questions designed to catalog and identify potential ​Giglio​ information that
may require additional investigation. This new process is a systemic upgrade that will make
these requests formal, consistent, and streamlined.

When potential ​Giglio​ information is identified by an officer, prosecutors from my office will
submit a formal request to the officer’s law enforcement agency for responsive information. The
law enforcement agency should then provide a summary of ​Giglio​ material in an officer’s
personnel file. Some law enforcement agencies facilitate this process by providing their officers
with a ​Giglio​ notice whenever any such information is added to their personnel file. Examples of
Giglio​ information include, but are not limited to:

● Misconduct that reflects bias

○ Information that may be used to suggest that the investigative employee is biased
for or against a defendant or witness in the case

○ Information that may be used to suggest that an investigative employee is biased

against a particular class of people, for example, based on a person’s gender,
gender identity, race, or ethnic group

● Misconduct that reflects on truthfulness

○ A sustained finding that an investigative employee has filed a false report or

submitted a false certification in any criminal, administrative, employment,
financial, or insurance matter in his or her professional or personal life

○ A sustained finding that an investigative employee was untruthful or has

demonstrated a lack of candor

○ A finding of fact by a judicial authority or administrative tribunal that is known to

the employee’s agency, which concludes in a finding that the investigative
employee was intentionally untruthful in a matter, either verbally or in writing

○ A sustained finding that undermines or contradicts an investigative employee’s

educational achievements or qualifications as an expert witness

○ Inappropriate or unauthorized use of government data

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 ● Criminal Charges

○ A pending criminal charge or conviction of any crime, disorderly persons, petty

disorderly persons, municipal ordinance, or driving while intoxicated matter

● Other misconduct in investigations

○ Any allegation of misconduct bearing upon truthfulness, bias, or integrity that is

the subject of a pending investigation

○ Any promises, offers, threats, or inducements, including the offer of immunity

○ A sustained finding, or judicial finding, that an investigative employee

intentionally mishandled or destroyed evidence

○ Misconduct that involves the use of force

Our office will disclose ​Giglio​ material to defense counsel, file a notice of disclosure, and log the
disclosure on a ​Giglio​ list. Filing the notice of disclosure and maintaining a list will improve
accountability and transparency for both our prosecutors and law enforcement officers.

I have begun to retrain all of the attorneys in my office regarding ​Giglio​ and I am prepared to
offer ​Giglio​ training to your officers and attorneys as well. I am confident that formalizing ​Giglio
investigations, making the results publicly available, and retraining personnel in our respective
offices will strengthen the quality of cases prosecuted in our district and provide the public with
the level of transparency and accountability they expect and deserve. I look forward to working
with you to implement this important reform. Please do not hesitate to contact me if you would
like to meet to discuss this or if you have any questions.

Sincerely,

Raúl Torrez
District Attorney

Cc: Ken Martinez, Bernalillo County Attorney

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 November 16, 2020

Sheriff Manuel Gonzales, III

Bernalillo County Sheriff’s Department
400 Roma Blvd NW
Albuquerque, NM 87102

VIA ELECTRONIC MAIL TO: ​Mxgonzales@bernco.gov

In Re: Giglio​ Policy Follow-up

Dear Sheriff Gonzales,

As you are aware, every prosecutor has an obligation to act not just as an advocate but also to
serve as a minister of justice. In defining the prosecutor’s duties as a minister of justice, the
United States Supreme Court has established disclosure requirements — generally known as
Giglio​ and ​Brady​ disclosures for the cases that announced these duties — that obligate
prosecutors “to learn of any favorable evidence known to the others acting on the government’s
behalf in [the] case, including the police.’” ​Strickler v. Greene​, 527 U.S. 263, 281 (1999)
(quoting ​Kyles​, 514 U.S. at 437). This includes evidence “known only to police investigators and
not to the prosecutor.” ​Kyles v. Whitley,​ 514 U.S. 419, 438 (1995). It is because of this well
established obligation and the public’s expectation of police and prosecutorial accountability that
I have begun to systematize and formalize the necessary inquiries to individual officers and their
respective agencies. Your cooperation and that of your deputies in supporting this important
reform effort is necessary to fulfill our duty to justice.

It is our understanding that you have issued a directive to your deputies to disregard the
questions posed by my prosecutors and to instead limit their ​Giglio​ inquiry responses to two
questions that you have developed. This is concerning for two important reasons. First, you and
your deputies have a statutory duty to cooperate with and assist my prosecutors “in ​all
reasonable ways.” NMSA § 29-1-1 (emphasis added). Here, ​Giglio​ inquiries are more than

520 Lomas Blvd NW, Albuquerque, NM 87102 

simply reasonable, they are required by the highest court. Second, limiting a ​Giglio​ inquiry to
two questions will likely miss material subject to required disclosure. The questions developed
by my office are the product of extensive research into controlling case law on ​Brady/Giglio
disclosures from various jurisdictions as well as the best practices of prosecution offices around
the country. The resulting questions were carefully designed to uncover the type of information
that may need to be disclosed to the defendant in order to ensure fundamental fairness in the
criminal justice process.

The existence of this directive has called into question the recent responses my office has
received to formal ​Giglio​ inquiries sent to your administration. In formulating your office’s
formal response, did your office use as its guide your directive or the ​Giglio​ guidance provided
in my letter dated October 20, 2020? Again, limiting a ​Giglio​ inquiry to two questions would
improperly narrow the scope of material that should be disclosed. As such, I respectfully ask for
your cooperation in providing complete, timely and accurate information for all ​Giglio ​requests
issued to your agency and its deputies, or in the alternative, a copy of the directive you have
issued on this subject and the legal basis for withholding the requested information from our
prosecuting attorneys.

In ​Giglio​ the United States Supreme Court developed a strong tool for prosecutorial and police
accountability. My office’s more systematic and formal approach fulfills these duties and
provides the public with the transparency expected of our offices. This approach will go a long
way to rebuilding the public’s trust in the individuals and institutions that are relied upon to
enforce the law. I look forward to your cooperation and support in implementing these
transparency and accountability reforms. Feel free to contact me if you have any additional
questions.

Sincerely,

Raúl Torrez
District Attorney

Cc: Ken Martinez, Bernalillo County Attorney, KenMartinez@bernco.gov

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 December 3, 2020

Sheriff Manuel Gonzales, III

Bernalillo County Sheriff’s Department
400 Roma Blvd NW
Albuquerque, NM 87102

VIA ELECTRONIC MAIL TO: ​Mxgonzales@bernco.gov

In Re: Giglio​ Policy Follow-up

Dear Sheriff Gonzales,

For fifty years, the United States Constitution has required prosecutors to disclose to criminal
defendants information in their possession or in the possession of law enforcement that could be
used to impeach a police officer’s credibility as a trial witness. This is widely known as a ​Giglio
duty, named after the United States Supreme Court’s opinion in ​Giglio v. United States​. On
October 14, 2020, I sent you a letter outlining my office’s new policy that formalizes and
streamlines our ​Giglio​ responsibilities. This initiative is designed to advance the important goal
of increasing transparency and accountability for prosecutors and law enforcement officers and is
an important step forward in modern policing for the community. At the heart of this reform is
the principle that those individuals entrusted to enforce the law must themselves be upstanding in
character.

You apparently do not share these goals. In your letter of November 18, 2020, you indicated that
you will be directing your deputies to withhold impeachment evidence from my office because
the questions posed by my prosecutors intrude on “privacy rights” and are “constitutionally
immaterial.” Your refusal to comply with both your constitutional obligation to disclose
impeachment evidence and your statutory duty to assist the prosecution is more than
disappointing – it undermines the community’s trust in law enforcement.

520 Lomas Blvd NW, Albuquerque, NM 87102 

“Privacy” is not a proper justification for deputies to refuse to answer ​Giglio​ questions. It is true
that peace officers do not entirely give up their right to privacy when they take their oath to serve
and protect our community. My ​Giglio​ policy does not invade the private lives of your deputies,
and I certainly have no intention or wish to do so. But when one of your deputies engages in
misconduct that impacts the deputy’s credibility as a witness, neither you nor your deputy can
hide such misconduct behind a label of “privacy.” Police misconduct is not private. The New
Mexico Court of Appeals rejected a similar reliance on vague “privacy” concerns with respect to
the disclosure of records for an officer’s personal cell phone used on duty because this view
“flies in the face of the embedded prosecution-team doctrine, in the face of the prosecutor’s clear
duty to investigate and to turn over evidence favorable to Defendant’s case, in the face of a clear,
mandatory criminal disclosure rule, and in the face of the fair-trial and due-process rights of a
defendant.”1

Society owes peace officers a great debt for selflessly taking enormous risks for the protection of
others. However, peace officers are entrusted with enormous responsibility and therefore must be
held to the highest of standards to avoid an abuse of power. Accordingly, New Mexico appellate
courts recognize that, while personnel records “may be confidential as against the public at
large,” a defendant’s right to a fair trial supersedes any privacy interest of the officer when the
information relates to the officer’s credibility and “the defendant’s guilt or innocence may hinge
on whether the jury believes the arresting officer.”2

My prosecutors’ ​Giglio​ questions concern five important impeachment topics: (1) acts of
dishonesty; (2) intentional destruction or alteration of evidence in a criminal case or other
conduct relating to the integrity of the investigation; (3) criminal charges and convictions; (4)
discriminatory bias; and (5) case-specific bias. Your directive shows that you object to all but
the first category. However, there is nothing “private” about publicly-recorded criminal charges
and convictions or acts that undermine the legitimacy of criminal charges such as evidence
tampering. Further, a peace officer relinquishes the right of privacy by acting in a manner that
may reveal a motive to discriminate against a suspect due to either a bias against a protected
class of people or a bias for or against someone involved in a case. “There can be no dispute that
a criminal investigation infected by racial animus would violate a defendant’s due process
rights.”3 It is highly concerning that you, as the head of a law enforcement agency, would

1
v. Ortiz,​ 2009-NMCA-092, ¶ 46, 146 N.M. 873.
​State
2
v. Pohl,​ 1976-NMCA-089, ¶ 6, 89 N.M. 523.
​State
3
​State v. Williams,​ 956 A.2d 375, 380 (N.J. Super. Ct. App. Div. 2008) (determining that a
supervisor’s use of a racial epithet warranted an investigation of the supervisor’s personnel file
even though he was not on the government’s witness list because it may have infected the
investigation), ​aff’d as modified​, 964 A.2d 322 (N.J. 2009).

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consider such information “private” and appropriate for concealment at the risk of a wrongful
conviction.

Your description of such information as “constitutionally immaterial” reveals a fundamental

misunderstanding of the law. Under ​Giglio​, the State has an obligation to disclose exculpatory
and impeachment evidence, which the United States Supreme Court calls collectively evidence
“favorable to the accused.”4 By extending this duty to information known only to the police
agency or to officers and not known by the prosecution, the United States Supreme Court
established a separate constitutional duty to disclose on the part of law enforcement officers.

As you indicated in your letter, the constitutional duty to disclose applies only to favorable
evidence that is “material either to guilt or to punishment.”5 But contrary to the position in your
letter, materiality is not an assessment that is yours to make. This responsibility rests instead with
my office and, ultimately, the judiciary. My office “has a duty to learn of ​any​ favorable evidence
known to the others acting on the government’s behalf in the case.”6 Your directive attempts to
do what the Supreme Court has flatly rejected, namely substituting “the police for the prosecutor,
and even for the courts themselves, as the final arbiters of the government’s obligation to ensure
fair trials.”7 Nor could you have any basis for making blanket statements about materiality in the
abstract. Law enforcement witnesses often provide crucial testimony and may, in fact, be the
only or at least principal witnesses at a trial. Their credibility frequently impacts the outcome of
a criminal case. As a result, you simply have no ability to say broadly that any particular
category of impeaching information is “constitutionally immaterial.” Your duty, and the duty of
your deputies, is to provide my office with ​all​ impeachment evidence so that my prosecutors can
fulfill their responsibility to determine materiality.

Moreover, the Supreme Court has cautioned prosecutors not to rely unduly on materiality in their
disclosure decisions. “[A] prosecutor anxious about tacking too close to the wind will disclose a
favorable piece of evidence. This is as it should be. Such disclosure will serve to justify trust in
the prosecutor” as a minister of justice with a duty to ensure that defendants receive a fair trial.8
Indeed, the prosecution’s discovery obligations extend well beyond ​Brady/Giglio​. For example,
the New Mexico Supreme Court separately requires the State to disclose a witness’s record of
prior convictions.9 Impeachment evidence is favorable to an accused, and you have a duty to
provide such information to my office.

4
​Stricklerv. Greene,​ 527 U.S. 263, 281-82 (1999).
5
​Strickler,​
527 U.S. at 280.
6
​Kyles v. Whitley,​ 514 U.S. 419, 437 (1995) (emphasis added).
7
​Kyles,​ 514 U.S. at 438.
8
Kyles,​ 514 U.S. at 439 (citation omitted).
9
​Rule 5-501(A)(5) NMRA.

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For all of these reasons, my office will comply with its constitutional duty by filing a notice of
noncompliance informing the Court and defense counsel when any deputy refuses to answer
questions about impeachment information in the cases investigated by your office. My
prosecutors will be obligated to ask the same questions in the presence of defense counsel during
pretrial interviews, and if deputies persist in refusing to respond, my prosecutors will join
defense motions to compel the disclosure of ​Brady/Giglio​ information from your office.

One of the more troubling aspects of your letter is the purported finality of your decision. You
appear to have no interest in a dialogue with my office to discuss your concerns. Instead, you
simply refuse to follow your constitutional and statutory duty, as if that is the end of the matter.
Your letter smacks of the type of deliberate indifference or reckless disregard for the truth in
withholding evidence from the prosecution that can serve as the basis for civil liability on the
part of police agencies.10 By contrast, when the Interim Chief and union representatives of the
Albuquerque Police Department had concerns about my proposed ​Giglio​ policy, we engaged in a
useful and productive collaboration that resulted in improvements to my policy and refinements
to our questionnaire. Interim Chief Medina and the Albuquerque Police Officers’ Association
recognize the constitutional imperative to disclose ​Brady/Giglio​ information, and they have
demonstrated that they are committed to improving public trust through transparency and
accountability. They understand that hiding officer misconduct not only deprives defendants of a
fair trial but breeds distrust of law enforcement by the very citizens they protect and serve.

Like your prolonged resistance to body cameras, your position on ​Brady/Giglio​ unnecessarily
calls into question the integrity of your office’s investigations. I hope that my office will not
have to take additional action to ensure that you fulfill your responsibilities to the public. In the
meantime, I will continue to fulfill my constitutional duties and will seek relief from the Court
for any obstruction of justice.
Sincerely,

Raúl Torrez
District Attorney

10
​See Tennison v. City & County of San Francisco​, 570 F.3d 1078, 1087 (9th Cir. 2009), ​cited in
Tiscareno v. Anderson​, 639 F.3d 1016, 1023 n.3 (10th Cir.), ​vacated on other grounds,​ 421 Fed.
Appx. 842 (10th Cir. 2011).

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