Mimesis Law
24 April 2017

Assault Charges Dropped Against Two Las Cruces, NM Officers After Mistrial

November 29, 2016 (Fault Lines) – When we ask for police officers to be prosecuted, we have to be ready to accept the results. On December 23, 2014, former Las Cruces, New Mexico Police officers Richard Garcia and Danny Salcido severely beat a handcuffed Ross Flynn in a jail cell. Flynn had been arrested for charges relating to a dispute with a neighbor, and after the beating was hospitalized with a skull fracture. Garcia and Salcido were fired in May of 2015 and were charged with Aggravated Battery resulting in Great Bodily Injury.[1]

The case against the officers was handled jointly by the Doña Anna District Attorney and the New Mexico Attorney General’s Office. Garcia was taken to trial first, and testified that he had no intent to harm Flynn. As a former officer, I pretty much think that is bull, the beating was pretty clearly punishment. But what I see doesn’t matter; it is what you can make the jury see, and the jury hung, 11-1 for acquittal.

So this week, charges were dropped against both officers, even though Salcido had not yet been to trial. The prosecutors apparently believed that the chance of obtaining a conviction was slim based on the first trial, and I would tend to agree with them. Police officers, even former officers, are given the benefit of the doubt by the public in court. That includes when officers are the defendants. So the prosecutors evaluated their case as compared to the results, and determined that their case was too weak to proceed. So they did what prosecutors are supposed to do, and dropped the charges.

That decision does not affect the pending $12.5 million civil suit that Flynn has filed against the city and the officers, nor would it affect any federal prosecution for civil rights violations. I doubt that there will be a federal prosecution, because the U.S. Attorney’s Office isn’t stupid and will look at the same results as the state prosecutors in making their decision.

Flynn, like most people who are in jail, was also not the most sympathetic victim. He was in jail because he allegedly pointed a rifle at a neighbor over a dispute about a parking space, was tazed by police at the scene for being non-compliant, and was fairly mouthy to the officers at the jail. Before cameras, those were sure signs that the guy was going to be “tuned up”[2] by the officers. Cameras in this case did not serve any deterrent effect; you can see one of the officer’s point at the camera at the very end of the video. Even so, Flynn’s conduct does not justify his beating, nor should it ever.

Although the charges were dropped, this prosecution was a success in a way. Every single time that an officer is accused of misconduct like this, they need to go to trial. Then the people, in the form of a jury, get to decide guilt or innocence. The officer is entitled to a fair trial and the presumption of innocence, and the people will decide what they will, or will not, tolerate from their officers.

We’re entitled to see the officers taken before the bar and be tried for any alleged offenses. We’re not entitled to a lynching or a witch burning. We should respect the jury’s decision, and in this case, the prosecutor’s decision to drop charges.

[1] A third degree felony in New Mexico, punishable by up to three years in prison and a $5,000 fine.

[2] Meaning beat the suspect to improve the suspect’s attitude, not that this was likely to work.

15 Comments on this post.

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  • ken
    29 November 2016 at 5:51 pm - Reply

    You and I both know that the outcome of a trial, even a jury trial, depends a great deal on the outcome previously desired by the prosecution. Not the BS issued in a press release intended to convince the uneducated masses.

    • Greg Prickett
      29 November 2016 at 6:01 pm - Reply

      I can tell you right now that prosecutors do not take a case to trial and intend to lose. Their promotions and pay raises depend, in a large part, on their conviction rate.

  • Pedantic grammar police
    29 November 2016 at 8:13 pm - Reply

    In most cases I would expect that rule to apply. I would not expect that rule to apply in cases where a police officer is the defendant.

    • Greg Prickett
      30 November 2016 at 5:24 am - Reply

      It pretty much applies across the board.

      • Pedantic grammar police
        30 November 2016 at 11:56 am - Reply

        That is your assertion. Reasonable observers disagree.

        • Greg Prickett
          30 November 2016 at 3:26 pm - Reply

          Sorry, but you’re in the minority position here. The rule is well-known and covered at length in law journals.

          • Pedantic grammar police
            30 November 2016 at 3:41 pm -

            Is the idea that police officers are always treated differently from non-police officers in court really a minority position? Or is it a well-established commonly-held belief borne out by numerous cases including this one? Do law journals really “cover at length” this rule that prosecutors will never soft-pedal a prosecution against a police officer, and do they all agree with your position? I don’t read law journals, but I find it hard to believe that they would all come down on the same side of this contentious issue.

          • SCG
            1 December 2016 at 3:07 pm -

            WEll covered, yes. The trouble is too many people do not believe it to be true. Commonly held beliefs are often wrong, I’ll grant you, but too often are where civil unrest begins.

          • Anon
            1 December 2016 at 6:21 pm -

            I doubt they cover the topic at all. And I have no idea where you find this “consensus.” The data suggest that LEOs (both off-duty and on-duty, and regardless of which agency prosecutes) are more likely than the general defendant to be convicted at trial; although there are so many confounding factors — quality of representation, crime charged, available defenses, quality of evidence, etc. — not to mention a small sample size, that it’s foolish to generalize.

            More importantly, half-assing a case you don’t believe that puts a cop’s job, rep, and jail time at risk will endear you to absolutely nobody.

          • Greg Prickett
            1 December 2016 at 8:54 pm -

            @Anon, you can doubt it all you want, but you may want to look at the following:

            It goes back to the early 1970s, where it was recognized that juries gave the benefit of the doubt to police, see James P. Levine, Implementing Legal Policies through Operant Conditioning: The Case of Police Practices.” 6 L. & Soc’y Rev. 195, 206 (Nov. 1971) (citing the Algiers Motel prosecution, the 1968 Democratic Convention prosecution).

            You can look at Margaret L. McLaughlin, et al., Juror Perceptions of Participants in Criminal Proceedings 7 J. Applied Comm. Res. 91 (Nov. 1979) for another early one.

      • Anon
        2 December 2016 at 8:35 am - Reply

        @GP
        Blame the lack of more specific reply button.

        The point was whether there’s any substantive journal discussion re whether, at trial, prosecutors (hoping for a NG verdict), soft-pedal cases against LEOs re line-of-duty conduct. I doubt there is. And, for the reasons mentioned, not to mention the prosecutions and charging s over the last two years, it’s unlikely they do.

        As for idea that jurors generally give LEOs the benefit of the doubt, the more interesting question is whether that carries over when himself cop is on trial. Both conviction rates and (to some degree) the civil results suggest the opposite at least when the charge(s) involve intentional/reckless behavior (e.g., Danzinger bridge) and out-of-uniform/off-patrol/patently criminal conduct (e.g., rape; DUI; official fraud), rather than decisions under stress.* The trial and impending re-trial of ex-UC officer Ray Tensing will prove an interesting example, however.

        *In my experience, while it may be harder for many jurors to believe a LEO is a bad guy, once they do, he’s screwed.

        • Greg Prickett
          2 December 2016 at 8:53 am - Reply

          OK, I can generally agree with this reply.

  • bacchys
    30 November 2016 at 11:35 am - Reply

    So, Flynn’s only real hope for justice is to take it into his own hands…

    • Greg Prickett
      30 November 2016 at 3:27 pm - Reply

      His best bet is his civil case.

      Self-help will just get him more jail time.

  • Will
    4 December 2016 at 7:23 am - Reply

    Was the one holdout for not guilty what hung the jury? If so, who’s to say that the cops know if they can secretly threaten a juror-just one- into voting “not guilty’ they can sabotage the fairness of the trial and get their fellow thug in blue off the hook? I wouldn’t put it past police today to threaten a witness when it’s one of their own on trial. I think a king cobra has more integrity than most police today.