District Attorney Marco Serna says he will appoint a special prosecutor to review "additional information" in a 2017 police shooting that killed a 24-year-old man who was living with schizophrenia in his southeast Santa Fe apartment.
The move marks a change for Serna, who accepted the conclusion of a panel of three DAs—from Albuquerque, Clovis and Las Vegas, New Mexico—in early 2018 that the two Santa Fe Police officers who fired should not be criminally prosecuted for the killing.
Serna's decision means one of the most controversial police shootings in recent Santa Fe history will get a second look.
In March, when Serna announced that the panel had concluded no charges should be filed against the officers Jeramie Bisagna and Luke Wakefield, Serna's spokesman said the first-term Democratic prosecutor who is now running for Congress would adopt the panel's findings.
By that time the family had agreed to accept $400,000 in a settlement with the city of Santa Fe over a lawsuit alleging wrongful death for the 17 bullets Wakefield and Bisagna fired into the apartment that day.
Weeks after the March announcement, Serna met with the family of Anthony Benavidez, who died July 19, 2017 in the Tuscany at St. Francis apartment where he'd been living, and their legal team.
Prior to the meeting, the family had detailed in a letter to Serna several concerns with the panel's legal analysis of the shooting, which took up a single paragraph in a seven-page findings document.
At the meeting, Serna told the family he did not believe he could review the case because he'd used the panel to decide on possible criminal charges—fulfilling a campaign promise to abandon the use of secret, "investigative grand juries" his predecessors relied on to clear officers in fatal shootings.
Serna then assured the family he would appoint a special prosecutor for a fresh review.
But he didn't do anything with the case between April and mid-August. That's when NMID and SFR inquired about its status. Serna said Thursday he would hire a special prosecutor to review the information as he promised the family he would do.
"We both left that meeting—me and my attorneys, them and their attorneys—in the same direction, I think, but with a misunderstanding on who was gonna take the initial step," Serna says. "But I am happy to, like I said, if they have additional information, I will provide resources to hire a special prosecutor to review that additional information, in addition to the file."
His office already has received "additional information," in the form of the letter the family sent him after the panel issued its findings on the shooting.
The DA said he had two lawyers in mind, both trial attorneys with experience in "complex cases" and "homicide cases," but he declined to name either.
"I am guardedly optimistic," Shannon Kennedy, the Albuquerque-based civil rights lawyer who is representing Benavidez' family, said Thursday afternoon after learning Serna would appoint a special prosecutor. "I want to believe that fresh eyes will do the right thing and take this case to a preliminary hearing so there can be a prosecution of these officers. But we've been waiting months and months, so until we actually see the appointment letter, no one is exhaling."
The two officers remain employed by Santa Fe Police, but spokesman Greg Gurule said an "internal investigation is ongoing." City police have a policy of refusing to release details about the outcome of internal investigations including discipline records.
This story was published in collaboration with New Mexico In Depth
Editor's note: The story has been updated to include a quote from Serna explaining his rationale about the next steps and what the victim's family considers "additional information."