On Thursday afternoon, the New Mexico Attorney General charged former LCPD officer Chris Smelser with 2nd degree murder and took the case away from the District Attorney in Las Cruces.
Smelser was charged with involuntary manslaughter by the DAs office more than three months after the in-custody death of Antonio Valenzuela. Originally, Chief Deputy DA Gerald Byers told other LCPD officers, after watching Smelser's interrogation by the multi-agency panel that investigates officer-involved deaths, that Smelser's actions were justified. Then George Floyd died at the hands of Derek Chauvin and voila! Smelser suddenly finds himself terminated and facing felony charges.
The question no one is answering is why the NMAG took the case away from the Third Judicial District Attorney (or did the DA ask the AG to take it?). Obviously, this upgraded charge gives more ammunition to the prosecution when they offer a plea deal to Smelser (remember how I phrased that as this case moves along: not IF they offer Smelser a plea, but WHEN). If the NM AG had pursued involuntary manslaughter, the only plea that could be offered is a misdemeanor. With 2nd degree murder, the AGs office can offer a plea to voluntary manslaughter (a 3rd degree felony) or involuntary manslaughter (4th degree felony). But why did they take the case from the DAs office in the first place?
I have a couple of theories, but first let me vent.
I've written extensively on how unfair I feel this whole process has been for Chris Smelser. I was a cop for 22 years, I retired as a deputy chief, and I get pissed off when I see command staff throw officers under the bus and terminate them for use-of-force techniques that they approved and authorized to be taught. You can tell me that Smelser applied the Vascular Neck Restraint wrongly, which is why Valenzuela died and why the charges are justified, and I will tell you that in a violent struggle things don't always go the way the instructor said they would when you were on that mat in the gymnasium practicing the VNR on your fellow cadet years earlier. I want to see the use-of-force "expert" foolish enough to take the stand and testify that when VNR is correctly applied nobody ever dies from it, or suffers any neck injuries. On top of that, the Office of the Medical Investigator has already said that the drugs Valenzuela ingested contributed to his death, so why would any prosecutor charge this case?
Okay, back to my theories. Mark D'Antonio is the DA and Byers' boss, so ultimately it is he who authorized the involuntary manslaughter charges against Smelser, but the rumors swirling through Cruces are that D'Antonio and Byers clashed over this. I'm hearing that D'Antonio did not want to bring the charges and Byers insisted on them, and D'Antonio acquiesced. And the reason he acquiesced is that Byers is the next DA (he is running unopposed), and come January 2021 D'Antonio will need a job and he wants the Chief Deputy DA vacancy. I haven't been able to verify that information, but if true it's sad. I suspect, too, that D'Antonio took heat locally for this case and wanted very badly to dump it.
That could be why the NM AGs office is now prosecuting it. Or is it? If you're not from New Mexico here is some recent political history. The attorney representing the Valenzuela family in their civil lawsuit against the City of Las Cruces for wrongful death is Sam Bregman, a Democrat. He has been screaming for 2nd degree murder charges against Smelser since he took the civil case. Hector Balderas is a Democrat. In 2014 Balderas was running for his second term for State Auditor; Bregman was the New Mexico Democratic Party Chairman. I'm pretty sure they know each other. And what a coincidence that the state has decided to not only take over this prosecution (and I can't remember the last time the state took a homicide prosecution away from a local DA), but also upgraded the charges to 2nd degree murder!
But the Democratic Party wouldn't stoop to that level, would it? No, of course not. They're a bunch of stand up guys and girls, and everything I'm seeing at the state and national level has convinced me of their sincerity in protecting the interests of the American people.
Hector Balderas wouldn't be the first attorney general to pursue the prosecution of a cop in the hopes that it elevates him to the Democratic ticket for governor sometime in the future. We all have our aspirations, I suppose. I wrote an article applauding Balderas for petitioning the legislature to eliminate VNR because it can cause death, and had LCPD Chief Gallagher taken the initiative when he took over the helm in Las Cruces and banned it, none of this would be happening (Gallagher has since resigned).
Whatever the real issues regarding the takeaway of the case by the AG, it stinks. The prosecution knows by reading the death certificate that drugs ingested by Valenzuela contributed to his death, and what reasonable person sitting on a jury is going to be convinced beyond a reasonable doubt that a VNR was the sole reason he died? Hence, the upgraded charges and the hopes for a plea. That offer is coming, just wait and see. And I hope Smelser tells them to stick it where the sun doesn't shine.
By the way, I have no connection to anyone involved in this case. I've never met Chris Smelser, I'd never even heard of him until Valenzuela died, and if I thought he had the intent to kill Valenzuela I would applaud his prosecution. But that's not the case. Smelser is not being prosecuted, he is being persecuted, and it is all because of the current anti-law enforcement atmosphere in this country and the political aspirations of politicians more than willing to take full advantage of an opportunity for self-advancement.