Open Secrets

Santa Fe DA pledges public, accountable reviews for possible criminal conduct in police shooting cases

Nearly four years had passed since local police or deputies fatally shot someone in Santa Fe.

That changed quickly last week, when Santa Fe Police officers opened fire on 29-year-old Francisco Javier Lino-Gutierrez, who was running alongside a tourist-packed downtown street. Twelve hours later, a Santa Fe County Sheriff’s deputy killed a man after a vehicle pursuit.

Details remain sparse.

Both agencies have said the men pointed guns at cops, but neither has answered further questions, aside from the Sheriff’s Department confirming that one of its deputies who fired last week killed another man in a previous police shooting.

New Mexico State Police, which is investigating the two shootings, has not identified the man killed by sheriff’s deputies or the cops who fired shots in either incident.

When that agency’s investigations conclude, authorities must decide whether the gunshots veered from legal on-duty actions into criminal conduct—and they’ll do so in an age of protest, tension and politics around the way police use force.

The choices will fall to First Judicial District Attorney Mary Carmack-Altwies, a first-term Democrat who ran last year on a progressive platform that included accountability for violent lawbreakers, even if they’re cops.

She inherited a system in tatters for reviewing police shooting cases that dates back decades.

From secretive, misleading “investigative grand juries” that were designed to clear police, to vague, responsibility-shifting “district attorney panels” composed of prosecutors from other districts whose poorly explained findings raised more questions than they answered, the result was always the same: Nothing to see here.

Carmack-Altwies proposes a more transparent path forward, one that diverges from previous DAs’ approaches and her own initial thinking during the campaign.

In her first public comments about police shooting reviews since taking office, Carmack-Altwies lays out her plan in a lengthy interview with SFR this week.

Here’s how it’ll work:

Once she receives a completed file from State Police, Carmack-Altwies promises a 30-day turnaround to make one of two announcements.

“If I think it’s justified, I will put together a memo with my reasoning, and I will release that to the public,” she tells SFR. “If I do not...that’s when I will bring in the special prosecutor, and that person will then get to re-review my decision. If they agree that it’s not justified, they will then be in charge of prosecuting it.”

Carmack-Altwies acknowledges the timeline could be tight in more complex cases.

Special prosecutors could include DAs from other districts or qualified, expert attorneys from the community, she says.

She plans to post a written policy on her official website within the next week. All records detailing her legal decisions will go online as well.

Carmack-Altwies says she’ll release police body camera video and other materials showing “pure facts” as soon as she receives them. Certain police reports, officer statements and other records with possible omissions or mistakes won’t come out until she’s finished her review.

In cases that end in police killings, “like the two most recent ones in Santa Fe, I will absolutely be meeting with the family,” she says. “Police shootings have become a huge deal in this country, and one of the main complaints has been that the families never hear from anyone in authority that they’re sorry that life is lost.”

Leon Howard, a longtime observer of police shooting reviews and the legal director for the American Civil Liberties Union of New Mexico, applauds Carmack-Altwies for abandoning the broken systems used by her predecessors—and for her transparency pledge.

However, the DA’s is just one role in ensuring justice when police commit crimes behind the badge, Howard tells SFR. State Police investigate police shootings in Santa Fe, as opposed to the agency that employs the cop who fired, as is done in some other districts. That creates one layer of needed distance, he adds, but police investigators are often biased in favor of one another, regardless of where they work.

Loaded investigations can hamstring prosecutors who later review them, Howard says.

He favors a model similar to a recently created bureau within the New Jersey Attorney General’s Office—an independent outfit that investigates and reviews shootings, eliminating the inherent conflict that arises when local DAs consider charging the officers they rely on as court witnesses.

New Mexico AG Hector Balderas and some lawmakers have supported that idea, but recent legislative efforts have foundered.

“The reality is that New Mexico keeps ranking No. 1 or No. 2 in police shootings every year,” Howard says. “Our lawmakers should prioritize figuring out this issue by funding an independent agency. Whatever type of independence you can create, the more you’re going to build community trust...I understand why Mary believes this is her job and she needs to make these decisions. But it’s hard to think of how this doesn’t put her office in a bad place if she determines there is criminal conduct in a police shooting.”

First, she must clear an 11-case backlog of non-fatal police shooting cases left by former DA Marco Serna. She has quietly resolved four of them, penning “relatively short” memos describing her decisions not to pursue charges.

The DA says her new policy won’t apply to shootings that occurred before she took office.

Among the unresolved cases is SFPD officer Brandon Deets’ non-fatal shooting of Joseph Galassini—in a questionable incident last June—outside the Big R farm and ranch store on St. Michael’s Drive.

And then there’s the 2017 fatal SFPD shooting of 24-year-old Anthony Benavidez, a man who lived with serious mental illness and died in one of the city’s most violent police encounters in recent memory. Publicly, Serna offered conflicting statements about the case’s status.

But internally, Carmack-Altwies tells SFR, he closed the case. She won’t commit to reopening it, but says she’ll “have some conversations, review some memos and see if that’s something that I need to do a review of.”

In addition to the two cases arising from last week’s shootings in Santa Fe, Carmack-Altwies says her new policy will cover the Española Police Department’s killing of 38-year-old Luis Nathan Leyba on June 8—and all other fatal police encounters from the time she took office in November forward.

It’s her job, the DA says, to answer to those who elected her.

“If it’s justice to indict a cop, I’m going to indict a cop,” she says. “If it’s justice to stand up in front of the community who’s mad about it and say, ‘Sorry, guys, this was justified,’ I’m gonna say that.”

Letters to the Editor

Mail letters to PO Box 4910 Santa Fe, NM 87502 or email them to editor[at] Letters (no more than 200 words) should refer to specific articles in the Reporter. Letters will be edited for space and clarity.

We also welcome you to follow SFR on social media (on Facebook, Instagram and Twitter) and comment there. You can also email specific staff members from our contact page.