The question they'll consider: Did SFPD officers Luke Wakefield and Jeramie Bisagna commit a crime when, together, they fired 17 shots into a room at the Tuscany at St. Francis Apartments, killing 24-year-old Anthony Benavidez, who was living with schizophrenia?
New Mexico State Police spent six months investigating the shooting after Benavidez was killed in July 2017. They turned reports and other evidence over to First Judicial District Attorney Marco Serna on Jan. 12, 2018, and Serna in turn handed the case off to the committee of outside prosecutors—fulfilling a campaign promise to shift police shooting reviews away from his office.
In the ensuing 13 months, Benavidez' family has settled a civil lawsuit against SFPD for $400,000 and lamented the lengthy delay in answering the question of whether the officers broke the law.
“I just want to know if anyone will hold these men responsible in my brother’s killing,” his sister, Rose Lopez, told SFR last month. “I want to know what’s taken so long. I feel like it’s not being treated like a murder investigation—I feel like it’s just being treated as if he was a nobody, as if he was not even a person.”
Rick Tedrow is president of the New Mexico District Attorneys Association and has taken on the task of setting up the committees to review police shootings for Santa Fe and other districts that want outside opinions. He tells SFR Lopez' long wait will end this week—he pledged to require that the committee send a findings letter to Serna by Friday.
But there's a hitch, says Tedrow, DA in the 11th Judicial District, the area around Farmington.
"The question we have not been able to answer is: If the committee says this [shooting] requires charges, there's no procedure in place at this time as to who will prosecute," he says. "The committee will kick it back to the originating DA and they can either go with our recommendation or not. It would then be that DA's responsibility to decide who would prosecute."
The prosecutor panels are not codified in state law. Rather, they began in response to judicial and journalistic criticism of a previous system in which prosecutors used secret "investigative grand juries" to review police shootings. Those reviews were not binding, and neither are those conducted by the committees.
Tedrow points out that people living in different districts are likely to expect varied approaches from their district attorneys in the event of a committee recommendation of charges in a police shooting case.
"In the more rural, Republican areas, I would expect them to say, 'You were elected, so we want you to make this call,'" he says. "In the more urban areas, DAs are probably more likely to hear from their constituents that they shouldn't be the ones to decide."
Serna declined to be interviewed for this story, leaving open the question of how he would move forward if the committee determines charges should be filed against Bisagna and Wakefield, who are both still working at SFPD.
A SFR review of the shooting has raised serious questions. Wakefield was wearing sunglasses, obscuring his view into the apartment where Benavidez was holed up. Wakefield screamed as SWAT team officers crashed through a window, heightening Bisagna's already nervous emotional state. Believing falsely that Benavidez was holding a gun, Bisagna emptied his handgun's magazine into the apartment. Wakefield responded by firing a single shot from his rifle.
And before officers stormed the apartment, Bisagna appeared to turn off his body camera—an apparent violation of SFPD policy.
In addition to the Benavidez case, the committee that's meeting today—made up of three DAs from around the state—also is considering a police shooting from Tedrow's district.
"In mine, if the committee says it's a bad shooting, I would keep the case for prosecution unless a judge said I have a conflict," he says.
Tedrow acknowledges the lengthy waits for findings from the committees.
"Of course, you have all sorts of families out there waiting for results," he says. "It also impacts the officers—they may be riding desk duty or ineligible for promotions or just having this hang over their heads."
The problem, he says, is that the district attorneys are working as volunteers on the committees. No one in the state has secured funding for the outside reviews.
"I would love to speed up the process, but there are only 14 DAs—well, 13, if you take away the originating DA—and we're all busy, so it's tough to get space in everyone's calendars," Tedrow says.
Tedrow is not on the committee that's meeting today. He says the three members have independently reviewed the two shootings and will reach agreed-upon findings on both shootings during the meeting.
He's not part of the next committee set to meet, either. That panel also will issue findings on two police shootings, one of them every bit as controversial as the Benavidez case.
In February 2018, a special prosecutor appointed by Second Judicial District Attorney Raul Torrez determined that then-Albuquerque Police Officer Jeremy Dear did not break the law when he fatally shot 19-year-old Mary Hawkes during a foot chase four years earlier.
But Torrez sent the case to the DAs' panel for a second opinion. That committee meets next week to settle on a finding.