Due to concerns with the Albuquerque Police Department’s handling of the investigation, prosecutors have dropped the most serious charge – and added others – against the man accused of shooting and critically injuring a man protesting for the removal of a Juan de Oñate statue Monday.
Second Judicial District Attorney Raúl Torrez also requested that the investigation into suspect Steven Ray Baca be handed over to State Police. And he stressed that Baca could still be charged in the shooting, depending on the investigation.
“Frankly, we have been put in a situation too many times in this community where investigations are rushed, investigations are incomplete and there is an expectation that quick decisions are made,” Torrez told a news conference Wednesday. “As … prosecutors who have to uphold an oath to be objective and impartial, we can’t do that. We have to get it right.”
Gilbert Gallegos, an APD spokesman, said APD officials “fully support” the independent investigation.
“The District Attorney’s Office was aware of, and signed the preliminary police report that was drafted before all video evidence and witness interviews were conducted,” he wrote in a statement. “We’ve agreed from the beginning that report is just preliminary and therefore incomplete and that supplemental material will include facts regarding other actions taken that instigated violence.”
Albuquerque police arrested 31-year-old Baca on Monday night after, they say, he shot Scott Williams, 39, during a fight at a demonstration to remove the statue of Oñate, a controversial conquistador, from the Albuquerque Museum grounds. The city removed the statue Tuesday due to safety concerns.
At the heart of the investigation is whether Baca instigated the fight or acted in self-defense.
For now, Baca is charged with aggravated battery, a felony, and two petty misdemeanor counts of battery against three unknown protesters because, prosecutors say, video shows him shoving them or throwing them to the ground before the shooting. He is also charged with unlawful carrying of a deadly weapon without a concealed carry permit, a misdemeanor.
The DA has filed a motion for him to be held in jail pending trial.
Baca’s attorney, Jason Bowles, applauded the decision not to charge his client in the shooting, saying he believes “the totality of the facts show that this case involves Mr. Baca’s right and exercise of self-defense.”
“The video of this incident shows Mr. Baca being chased and struck with a skateboard by one assailant, being pursued while he was backing up, shouts in the crowd to ‘kill him,’ being tackled and struck, and then being confronted with another assailant wielding a knife in a menacing manner towards him,” Bowles wrote in a statement. “With multiple assailants attacking him with weapons, Mr. Baca at that point had no choice but to defend himself using force.”
However, the attorney representing Scott Williams and his family said video she’s seen, and shared with the Journal, shows Williams was defending his friends from Baca.
“Baca had a gun out before Scott picked up his skateboard to defend his friends,” attorney Laura Schauer Ives said. “All of this happened immediately after Baca had thrown a woman down and Scott was turning away and running away when he was shot four times.”
In a letter to Police Chief Michael Geier on Tuesday, Torrez voiced his concerns with the way APD handled the dynamic and volatile situation after the shooting at the protest and how those methods could compromise the investigation.
Specifically, Torrez pointed out that undercover officers who were at the protest and referenced in the complaint would now have to serve as witnesses and would “complicate our presentation” of the case if APD was the investigating agency.
Also, he said, APD’s response to the crowd, with riot police and nonlethal munitions, may have “adversely impacted” the ability to collect evidence and lead to essential witnesses being reluctant to come forward.
“My primary concern is the reluctance of members of the public to cooperate with law enforcement after the confrontation that was had with police,” he said.
Torrez said the concerns are “amplified” by the original complaint as it “seems to omit” the fact that Baca assaulted a woman in the crowd, which could negate any self-defense claim by Baca.
“We believe that this is fundamentally an incomplete police investigation,” Torrez said during the news conference.
In a subsequent letter to Geier, Torrez asked APD to turn over all officer information, lapel videos, 911 calls, written reports and collected evidence.
He said much of the key evidence – knives and “a number of weapons” left at the scene – was collected, but it is unclear where they came from or whom they belonged to. Aside from that, he said, APD tactics used for crowd control “made it impossible” for key witnesses to give statements.
“There’s just a lot of confusion right now, so those questions need to be answered before we move forward with a charge,” he said.
But, Torrez said, some answers may never come.
“In a dynamic crime scene situation like that, once the scene is disturbed and witnesses are gone, sometimes you can’t get it back,” he said.
City Councilors Pat Davis and Isaac Benton have also criticized the police response to the protest and shooting and asked for a full review of officers’ actions. The Civilian Police Oversight Agency is investigating, and the department is doing its own self-assessment.
In the initial criminal complaint charging Baca with aggravated battery with a deadly weapon, the detective wrote that the crowd “appeared to maliciously pursue” him and that Williams had struck Baca with a skateboard. It made no mention of videos that showed Baca violently throwing a woman to the ground, leading the protesters to turn on him.
Torrez said that under state law, if you are the “first aggressor” you cannot raise a self-defense claim but added that the law is not “absolute” and that “the conduct of other individuals” will be considered.
“I know there are a lot of rumors swirling around on social media. There are a lot of people who have jumped to conclusions. We are not going to do that,” he said. “We are going to take the time to do this the right way.”
Torrez acknowledged that those rumors involved whether Williams had a knife, but he said there was no evidence at this point that he did.
By contrast, the amended charging document prosecutors filed Wednesday focuses on Baca’s actions against three protesters before the shooting. Torrez said the charges stem from videos showing Baca allegedly assaulting three unidentified women.
“Steven Ray Baca forcibly and, in a rude, insolent, or angry manner, pushed ‘Jane Doe 2’ and ‘Jane Does 3,'” a deputy district attorney wrote in the court documents. “‘Jane Doe 1,’ with her back turned to Steven Ray Baca, moved to prevent Steven Ray Baca from pushing past her. When ‘Jane Doe 1’ was in an apparent defenseless position with her arms out and her back turned, Steven Ray Baca grabbed her shoulder and body slammed her into a concrete sidewalk where she hit her head.”
The DA is asking for a judge to hold Baca until trial. In a motion filed in 2nd Judicial District Court, prosecutors say that regardless of the results of the investigation into the shooting, Baca’s conduct at the protest instigated “multiple episodes of violence in the midst of a charged and volatile atmosphere.”
“The nature and circumstances of the offense show that defendant armed himself in advance, instigated a physical confrontation with several people, violently threw a defenseless woman to the ground, and ultimately discharged a firearm that he carried unlawfully multiple times at close range,” prosecutors wrote in the motion.
In a statement, attorney Bowles denied that his client is dangerous and called for the District Court to quickly review the matter and release him. He said Baca is not a member of the New Mexico Civil Guard, an armed civilian group that was also at the protest.
A hearing will be held next week to determine whether Baca should be held in jail.
“We also vehemently oppose Mr. Baca’s continued detention on what amounts to essentially misdemeanor assault charges, upon ‘Jane Does’ who apparently haven’t even been identified,” Bowles wrote. “Mr. Baca has no criminal history. Mr. Baca is a caring and kind individual. He is active in his community and with his family.”
As a New Mexico native who traces his ancestry “back several hundred years,” Torrez said, he understands the competing passion and tension over Oñate. He said he understands that people are entrenched in their own views on the incident.
“I recognize that people in this community and this country are on edge right now and they are deeply divided over a number of very important issues. … It seems that a great deal of the perspective of what happened at that moment in time is driven by folks’ ideological perspective,” Torrez said. “Our task is to follow the evidence, and our task is to follow sound testimony and physical evidence, wherever it may lead.”