From ‘attempted murder’ suspect to civil rights plaintiff

ALBUQUERQUE (KRQE) – Like many domestic violence calls in Albuquerque’s Southeast Heights, it wasn’t immediately clear who had been the aggressor when police officers arrived at an apartment complex on the 400 block of Chama Street on a bright March day in 2012.

Mary Drake, who was 41 at the time, and then-26-year-old Jennifer DeLao had been in a fight — that much was clear — though neither woman had been seriously injured.

But by the time APD officers Justin Trebitowski and Stephanie Gomez left the scene, Drake had a smashed in face and a raft of felony charges against her, including attempted murder. Mary Drake

DeLao was free to go.

Now, more than two years later, the four felonies Drake had been charged with have melted into a no-contest plea to a single misdemeanor count. And Drake is the plaintiff in a federal civil rights lawsuit against Trebitowski Gomez that claims excessive force and other Fourth Amendment violations by the officers.

The case raises questions about several areas of APD’s mission that have been under increasing scrutiny in recent years:

  • Were Trebitowski and Gomez too aggressive in the way they removed Drake from a police car after discovering that the woman, who was on her menstrual cycle, had bled on the car’s seat, then took her to the ground?

  • Were they too aggressive again in the aftermath, when they slapped Drake with a slew of felony counts that, had she been convicted of them, could have sent her to prison for decades?

  • Why does video from the officers’ lapel cameras show nearly the entire incident — except the moments before and during the officers’ takedown of Drake?

Drake’s attorney, Justine Fox-Young, said the answers to those questions are self-evident.

“Not everything was caught on the lapel camera, and there’s reason for that,” Fox-Young told News 13. “You know, lapel cameras are only as good as the officers who wear them. And officers can disable them, they can cover them, they can turn them off — usually when there’s something to hide.

“It’s unusual. I don’t see how that could have happened without an officer deliberately obscuring or disabling the camera.”

APD spokeswoman Janet Blair sent a statement to News 13 late Friday saying the officers used an “appropriate amount of force based upon the situation faced by the officer at the time and, therefore, the city will be asking the judge and jury for judgment in the officers’ favor.”

“We Think the case was grossly overcharged.”— Drake’s attorney, Justine Fox-Young

The city’s version, according to Blair, is that Drake slipped one of her hands out of a pair of handcuffs and “swung it at the officer.”

Also, the city denied many of Drake’s claims in its court-filed response to her lawsuit.

Fox-Young said Drake suffered a large bruise on her head, a concussion and several cuts and bruises to her face.

“She was intoxicated, and I think officers just took the opportunity to treat her the way they wanted to,” she said.

The incident didn’t end, though, with Drake’s injuries.

According to police reports provided by APD, the officers — who have been with the department since 2009 and are still working in its patrol division — arrested Drake on a litany of charges. Among them were kidnapping and attempted murder.

“We think the case was grossly overcharged,” Fox-Young said.

In her statement, Blair pointed out that Gomez and Trebitowski sent the case against Drake to the District Attorney’s Office, and prosecutors presented it to a grand jury. Drake was indicted on five counts — three felonies and two misdemeanors.

Mary Drake’s Charges
Initial Charges After Grand Jury Indictment
Attempted Murder (felony) Attempted Murder (felony)
Kidnapping (felony) Kidnapping (felony)
Assault with Attempt to Commit a Violent Felony (felony) Aggravated Battery Resulting in Great Bodily Harm (felony)
Aggravated Assault (felony) Assault Upon a Peace Officer (misdemeanor)
Assault Upon a Peace Officer (misdemeanor) Resisting, Evading or Obstructing an Officer (misdemeanor)
Resisting, Evading or Obstructing an Officer (misdemeanor)
Disorderly Conduct (misdemeanor)

DA Kari Brandenburg told News 13 that the women’s stories changed over time. At first, all prosecutors had was the information in the officers’ criminal complaint: that Drake lured DeLao into a bathroom, locked her inside and tried to drown her.

Later on, Brandenburg said, prosecutors learned “that it was really a fight over drugs or over a man and the alleged victim didn’t really feel the defendant was trying to kill her — and what she really wanted in the case was for (Drake) to get some kind of help.”

“In this case, we didn’t have anything that really supported the initial charges, so it would have been unethical for us to pursue those initial charges,” Brandenburg added. “in this instance you have extreme charges very serious charges and you end up with a misdemeanor, that is generally uncommon.”

In March, Drake pleaded no contest to a single misdemeanor count of battery, court records show.

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