‘Significant Policy Change’

BernCo DA: New Mexico AG should review questionable police shootings

Bernalillo County District Attorney Raul Torrez says he's done waiting for a so-called "DA panel" to determine whether the Albuquerque police officer who killed 19-year-old Mary Hawkes in 2014 should be prosecuted.

Instead, the first-term, Democratic DA in New Mexico's most populous district wants the state's highest-ranking law enforcement officer to decide. He has referred the case to state Attorney General Hector Balderas, according to a letter he sent to the Hawkes family's legal team, which was obtained by New Mexico In Depth and the Santa Fe Reporter on Friday.

And according to the letter, the Hawkes case is just the first. Going forward, he intends to refer all police shooting cases to the AG for a second look if his special prosecutors return recommendations that no charges be filed against the shooting officer.

Not so fast, says Matt Baca, Balderas' spokesman and general counsel. The attorney general has declined to prosecute the case, saying there's a conflict of interest because Hawkes' brother works for the AG's Office and other members of his family won a civil lawsuit against the city of Albuquerque and former APD officer Jeremy Dear, who shot Hawkes along East Central Avenue in Albuquerque.

"Because of (Josh Hawkes') presence here," Baca says, "we couldn't ethically put that case in front of a court."

Balderas, however, has offered to consult with Torrez on a final decision in the case.

That puts the onus back on Torrez, at least in the Hawkes case. But Baca says Balderas is open to reviewing future police shooting cases from the Albuquerque-based DA "when there has been an appropriate referral."

His abandonment of the DA panels marks an abrupt shift for Torrez, who has both referred cases to DA panels and sat on them for other district attorneys. And it comes after a NMID and SFR investigation that revealed New Mexico's lack of a uniform system to review and adjudicate police shootings, flaws in the state's patchwork of approaches and broad dissatisfaction with DA panel reviews in a state that has for years led the nation in deaths by officer bullet.

Balderas has said he supports creating a statewide, uniform process for deciding on potential crimes in police shootings — and even to housing a unit to conduct the reviews in his office. But, the Democratic AG says, the Legislature must support such a process and give it enough money to make it work.

Torrez appointed a special prosecutor to look at the Hawkes shooting in 2017, shortly after his election. That review resulted in a recommendation that Dear shouldn't be criminally charged.

But the Hawkes family raised several objections, prompting Torrez to agree to a second look. He sent the case last October to a panel of three district attorneys from other New Mexico counties — a relatively new service offered through the New Mexico District Attorney's Association.

"Like you, I am extremely frustrated by the inability of the New Mexico District Attorneys Association (NMDAA) to conduct a timely review of the materials you provided or to complete an independent analysis of the special prosecutor's determination," Torrez wrote in a two-page letter dated Sept. 5 to the Albuquerque-based Kennedy, Kennedy and Ives law firm, which represents the Hawkes family.

"While I am mindful of the lack of dedicated resources to support this process, at this point I do not believe that relying on the NMDAA is a reliable method of providing the kind of timely, independent review to which I have always been committed," he wrote.

Calling it a "significant policy change," he wrote in the letter to the Hawkes family lawyers that he will no longer use such DA panels for any police shooting cases in Bernalillo County. He intends to continue referring them to a special prosecutor, but any time those reviews result in a recommendation that no charges be filed against a shooting officer, the cases will be sent to Balderas for additional scrutiny.

In his letter, Torrez acknowledges that Balderas is "under no obligation to investigate or prosecute a case previously declined by the special prosecutor," but that his office will hand over all case materials to the AG's Office.

Torrez adds that Balderas has the legal authority to review any police shooting case and "considerably more resources and less dependance on local law enforcement to engage in the kind of timely, independent review that these matters deserve."

This story was co-published with New Mexico In Depth, SFR partner.

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