Who's Got Your Back, LCPD?

I haven't posted anything on the Chris Smelser case because I wanted to wait until after the preliminary hearing for 2nd degree murder, a charge filed by the state attorney general's office following the death of Antonio Valenzuela. The AG added a charge of great bodily harm, which doesn't surprise me. In the event that a jury will not convict on 2nd degree murder they want to give them an alternative. I call it fishing for a conviction.


After two days of testimony Chris was bound over for jury trial, which should come as no surprise to anyone familiar with the criminal justice system. I fully expected it.


Being bound over is no indication of guilt. All it simply means is that enough probable cause exists to believe that a crime may have been committed. It is similar to an officer making an arrest based on information he or she receives in the field before taking a suspect into custody. It is not a conviction and it certainly doesn't mean that a jury of his peers will see the charges as the prosecution hopes they will. Had the case gone before a grand jury, which it would have in the absence of the COVID pandemic, the outcome would have been the same.


I found certain testimony interesting, particularly that of Shane Briscoe, an LCPD lieutenant in charge of defensive tactics instruction for the department. He is still clinging to the belief that vascular neck restraints are safe. Safer even than an arm bar takedown, according to his testimony. That is a preposterous statement. I've never heard of anyone dying from an arm bar takedown, but I do know that people die in situations that involve a combative suspect and an officer trying to control that suspect using the VNR. That is why so many departments dumped the VNR and forbid their officers from using it. In fact, the only department teaching it and authorizing its use in the state of New Mexico was LCPD. So the conclusion is this: either Shane Briscoe is right and all the other law enforcement agencies within the state and nationwide that refuse to teach VNR are wrong, or there is some seriously flawed thinking within the LCPD.


Briscoe testified that he twice petitioned former Chief Gallagher to authorize use of the VNR and on the second request was granted his wish. Gallagher came from NYPD, a department that forbid the use of VNRs sometime around 1993. The NYPD stopped teaching the technique and refused to authorize its use because people were dying and not necessarily from officers applying it wrongly, as Briscoe claims Smelser did. Briscoe said Smelser held the VNR on Valenzuela too long, as if an officer attempting to control a violent suspect who is possibly armed has no higher priority during a struggle than to count one-Mississippi, two-Mississippi...


If VNR is so safe, why did LCPD ban it the day after Antonio Valenzuela died? I'll give you the short answer: cover your ass. And if you have to throw an innocent cop to the wolves, so be it. In fact, Gallagher ordered Briscoe, according to Briscoe's testimony, to write a report on the incident but not until Chris Smelser was charged more than three months after Valenzuela's death. Whaaaaaaaat??? A man died and three months pass before the chief decided that a use of force review needed to be written? By then, Smelser had been fired and so Briscoe wrote his report without ever interviewing the very officer involved in the incident. Briscoe has no idea how many times Smelser had to readjust the VNR on Valenzuela because the suspect was fighting and squirming around on the ground, yet he testified that Smelser did not perform the technique correctly and held it too long. Briscoe also testified that although he teaches VNR, he has never actually used it in the field on a suspect.


The forensic pathologist who supervised the autopsy of Valenzuela was professional and to the point. Remember, the autopsy report concluded that Valenzuela died of asphyxiation, with the presence of methamphetamine a significant contributing factor. She gave a lot of good information, but two things stand out: (1) She cannot conclusively state that the compression injuries suffered by Valenzuela during the arrest would have caused his death in the absence of methamphetamine, and (2) she has done autopsies on methamphetamine overdoses that involved a lot less meth in the systems of the deceased persons she examined than what Valenzuela had in his system.


That is one hell of a statement, and it makes one wonder why Smelser was ever charged.


The prosecution's SME (subject matter expert) was a retired Sergeant from the Albuquerque Police Department. I won't mention his name because he isn't worth mentioning, but If he is the best the state can do for an SME, I want my tax dollars back. He hadn't read this report or that statement, or couldn't remember if he had, he was listening to the proceedings on his phone as he drove down from Albuquerque and in some spots he lost the connection so he didn't hear certain testimony. But he was sure that Chris Smelser was guilty. Like Briscoe, he never actually interviewed Smelser but he saw the video and read a couple of reports and drew his conclusion. Personally, I've watched a lot of videos involving police officers and use of force, and as all of us in law enforcement know there is a heck of a lot more to the story than what you see on a video clip.


I don't know what financial arrangement the state made with their hired gun, but I hope he invests in a haircut and a suit that doesn't look like it came off the rack at Goodwill (full disclosure: a few years back, two local prominent attorneys asked me if I would be open to the proposition of testifying against cops. I'd be expected to take the stand and say that based on my experience the officers did XYZ wrong in their handling of a case. Not just one case, but any case. They assured me it paid well. I said absolutely not, I do not testify against other cops. I'm nobody's whore and I have a low opinion of cops who make a living doing so. That is not The Thin Blue Line of protection. It is an understanding based on 22 years of experience that sometimes things go bad, and in less time than it takes to blink an eye an officer has to make the best choice available based on limited information).


I stand by what I wrote some months ago. The only reason Chris Smelser has been charged with a crime is because of the political nonsense going on in this country today. The DA's office initiated the criminal action against Smelser and then turned it over the the attorney generals office, and if I'm an LCPD officer I have to be thinking that between a police administration that doesn't back its own and a DA's office eager to prosecute cops, who the hell has my back?


Amy Orlando, Smelser's attorney, hit the nail on the head in her closing argument yesterday: she said that instead of the LCPD administration rallying around Chris Smelser and supporting him after Valenzuela died, they threw him under the bus.


Indeed.























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J.R. LONSWAY

AUTHOR | RETIRED DEPUTY CHIEF OF POLICE

J.R. Lonsway served 22 years with the Las Cruces, New Mexico, police department and retired as a Deputy Chief of Police. After retirement he served with the U.S. Department of State as a police advisor in Kosovo, Afghanistan, Liberia, Haiti, Lebanon, and South Sudan. He is a former U.S. Marine.

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