Nearly three years have passed since two Santa Fe police officers opened fire through a smashed-out apartment window, killing 24-year-old Anthony Benavidez, who was living with paranoid schizophrenia inside.

The shooting sparked criticism and claims of excessive force when video emerged—and it raised questions about how the department responds to people in the midst of mental health crises.

It also led to a $400,000 settlement in a civil case brought by Benavidez's family against the city.

But Santa Fe still hasn't seen a final answer to a key question: Did the officers commit a crime when they pulled the trigger?

Instead, the case has sat essentially unresolved with First Judicial District Attorney Marco Serna—Exhibit A for a legally confusing, opaque set of reviews Serna and other prosecutors around the state have used to look at police shootings.

Now, the two longtime New Mexico lawyers looking to replace Serna as top prosecutor for Santa Fe, Rio Arriba and Los Alamos counties are promising change, albeit subtle.

Mary Carmack-Altwies, who runs the Special Victims and Violent Crimes units under Serna, and Scott Fuqua, a former prosecutor who now focuses on civil consumer cases from his Santa Fe base, are facing off in the Democratic primary on Tuesday.

There is no Republican in the race, and Serna is running for Congress. So, one of them will get the job—and they both say police shooting reviews need to be faster, more accountable and more transparent in the district.

Serna's system and a now abandoned scheme used by his predecessors have created sore spots for victims' families and civil rights advocates.

Citing the inherent conflict when prosecutors are asked to decide on potential criminal behavior by the officers they rely on in court every day, Serna promised on the campaign trail in 2016 to send the hot potato cases outside his office for an unbiased look.

The so-called "DA panels" were born.

The state District Attorneys Association and Administrative Office of the District Attorney got together and began offering groups of three or four prosecutors to review police shootings outside their jurisdictions.

One of those panels took about a year to issue a letter, based on legally disputed underpinnings, saying the officers who shot Benavidez should not be charged.
That was last March. Since then, Serna has offered a variety of answers as to whether he would abide by the panel's recommendations, pointing up an inherent flaw with the system: the panel's decisions aren't binding.

So the case has languished.

Fuqua and Carmack-Altwies took about 45 minutes each to discuss police shooting reviews with SFR last week.

Carmack-Altwies, 42, earned her law degree from the University of New Mexico in 2005 and went to work as a public defender, then a criminal defense lawyer in private practice, in Albuquerque.

She moved her practice to focus on the First Judicial District in 2016, then received a call asking her to go to work for Serna two years later.

"I thought about it for a couple of days, and it really wasn't that hard a decision," Carmack-Altwies tells SFR.

She would stick with the DA panels, she says, but with a twist: Instead of three prosecutors looking at the case file, Carmack-Altwies favors a prosecutor, a retired judge and a public defender.

"I think that way, it could be looked at through a variety of perspectives in the legal system," she says. "I think that would be the fairest and most trustworthy way to look at that kind of killing."

So long as the panel provides a detailed rationale for its findings—a point of contention in the Benavidez case—Carmack-Altwies says she "would take the recommendation, and it would be over."

In the so-far unprecedented event that the panel recommends charges against an officer, she would hire a special prosecutor to move forward.

"I think somebody that's of the caliber of a Randi McGinn is needed to ensure that we're not sweeping something under the rug if it's deemed to be serious and criminal," Carmack-Altwies says, referring to the well-known lawyer who was brought on as special prosecutor in a criminal case against two Albuquerque officers who killed a homeless man.

Carmack-Altwies says the panels should decide as quickly as possible—"I would say a year is OK-ish"—but the rest of the process needs to move faster.
"I would think that anyone who believes, just because you have a badge, you can't commit a homicide?" she says. "That makes absolutely no sense. … When they do something that is wrong, we have to hold them accountable."

Fuqua, 44, grew up in Portales and finished law school at the University of Chicago. He went to work for then-Attorney General Gary King in 2007, ultimately running the office's litigation division before moving into private practice and focusing on predatory lenders.

He tells SFR he's not wholly conversant in how decisions on police shootings are being made in the district.

"It's been kind of an opaque process for me, and not even really the easiest to research," Fuqua says, adding: "If these panels, with DAs or their representatives, are approaching this in good faith, and if it's transparent, and the results of the recommendations are available to the public, it sounds like a reasonable process."

Fuqua believes the public will always question whether a local DA is biased either in favor of or against an officer who shoots someone in his or her district. That's why he says it's a good idea to have an outside set of eyes conduct the review.

"There has got to be a prosecutorial presence on that panel," he says. "Should it be the only voice? I'd have to think about that."

Fuqua criticizes the lengthy delays in reaching and announcing findings in police shooting cases, saying he might approach the DAs Association about establishing guidelines for at least an aspirational time table if he wins the office.

Whatever the panel decides, however, the final decision rests with the DA, Fuqua says.

"You can't cede your prosecutorial discretion to a panel," he says.