Lawyer: DAs mishandled Santa Fe police shooting probe - Albuquerque Journal

Lawyer: DAs mishandled Santa Fe police shooting probe

SANTA FE — A lawyer representing the family of a man who was shot and killed by Santa Fe police in 2017 has asked the district attorney to file charges against the officers involved, in a strongly-worded letter that attacked the process used for reviewing the shooting.

Anthony Benavidez, 24, was shot and killed by SFPD officers Jeramie Bisagna and Luke Wakefield at a Santa Fe apartment complex in July 2017, concluding a SWAT standoff with the mentally ill man.

State Police took over the officer-involved shooting and sent its findings to Santa Fe District Attorney Marco Serna’s office in January 2018. Serna later put it in the hands of a three-person panel of district attorneys from around the state to make a recommendation as to whether the officers should be charged.

Last week the panel sent its report to Serna and recommended that charges not be filed. A spokesman for Serna originally told news media that Serna would follow the recommendation, but later said Serna would still review information from Benavidez’s family’s lawyer, Shannon Kennedy.

Kennedy sent her letter to Serna Thursday. The 14-page document goes after New Mexico district attorneys in general, saying they “have repeatedly skirted their accountability to both the public and to… officers’ victims.”

Addressing Serna, she said using a panel of DAs in this case was “simply another process by which you and other district attorneys, who are elected officials concerned with the next election like any other elected official, give yourselves cover, allowing you to avoid full weight of the politically fraught decision on whether to pursue criminal charges against an officer.”

Attorney Shannon Kennedy, left, is shown here in 2014 with Kenneth Ellis, whose son was killed by Albuquerque Police in 2010. She now represents the family of a man shot and killed by Santa Fe police at the end of a SWAT standoff. (ADOLPHE PIERRE-LOUIS/JOURNAL)

The State Police investigative records for the Benavidez shooting have not been released publicly. So Kennedy relied on a December 2018 Santa Fe Reporter article that included statements Bisagna and Wakefield made to State Police. Kennedy said she verified that the statements were accurate and that she had to use only what’s been published because she’s constrained by a confidentiality agreement, according to her letter.

Kennedy, who represented the Benavidez family in civil litigation that resulted in a $400,000 settlement payment from Santa Fe city government, writes that Bisagna “imagined” a silver revolver in Benavidez’s hands, although the object was actually a knife.

Kennedy also writes that Wakefield told State Police that he was wearing sunglasses that “made it impossible to for him to see inside of Anthony’s apartment or whether anything was in Anthony’s hands.”

The panel — comprised of district attorneys Raul Torres, Andrea Reeb and Richard Flores — said in its letter that it used the State Police case file to review the case, but it doesn’t specifically cite statements made by Bisagna and Wakefield.

“As profoundly troubling as it is that your office would attempt to withhold these statements from Anthony’s family, it is stunning that the (New Mexico District Attorney’s Association) failed to address the officers’ statements in its factual or legal analysis,” Kennedy wrote.

Kennedy claims the officers were not acting in self defense.

“Officer Bisagna’s imagination dictated his actions, not an actual threat posed by Anthony,” Kennedy wrote. “And Officer Wakefield appears to have shot Anthony in the head because Officer Bisagna opened fire, not because he reasonably assessed the risk of deadly force from Anthony. Further, Anthony ran towards the window with a knife only after Officer Bisagna unreasonably opened fire on him.”

The DAs’ report says that Wakefield shot Benavidez, even though he could see that Benavidez had a kinife and not a gun as Benavidez rushed toward a window opening where the officers were positioned, because Bisagna was not shooting accurately while wielding a ballistic shield.

The panel also cited in its legal analysis jury instructions from a criminal case against two Albuquerque Police Department officers who were charged after fatally shooting homeless camper James Boyd. Kennedy points out that the jury instructions in that high-profile case were brought about by the defense attorneys in that case and says they are not part of New Mexico case law.

“We are perplexed as to why a group of district attorneys would adopt whole cloth jury instructions introduced by criminal defense attorneys that resulted in a mistrial,” Kennedy wrote.

“Why are district attorneys creating license for police officers to kill citizens by citing the thin non-persuasive authority of two jury instructions (which never should have been given and which resulted in a hung jury) that have never been upheld by any New Mexico appellate court?”

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