Ex-cop faces trial in chokehold death; DA ducks out
One day last week, Christopher Smelser was a former Las Cruces police officer charged with involuntary manslaughter in the asphyxiation of a prisoner.
A conviction would forever end his career in law enforcement, but the charge carried relatively little time. The maximum penalty for involuntary manslaughter is 18 months in prison.
The next day, Doña Ana County District Attorney Mark D’Antonio withdrew from the case.
Instead, Smelser will face new prosecutors from the state Attorney General’s Office. And they have upgraded the charge against Smelser to second-degree murder.
At once the stakes became higher for Smelser and lower for D’Antonio.
Smelser could serve nine years in prison if he’s found guilty of murdering Antonio Valenzuela with a chokehold. D’Antonio no longer has to worry about prosecuting a cop in his own jurisdiction.
But D’Antonio should be embarrassed. A case he was happy to hand off is now a prosecution for murder.
Rather than doing his job, D’Antonio will let someone else do it for him.
All too often, district attorneys don’t want to be adversarial with police officers. Prosecutors rely on cops to obtain convictions, and convictions are the statistic district attorneys use most often in their reelection campaigns.
Farming out high-profile cases in which a police officer is the defendant is the politically expedient course of inaction. Let someone from afar handle the case so as not to anger or alienate the hometown police force.
While Smelser digested the latest development in his case, D’Antonio and state Attorney General Hector Balderas teamed up for a news statement.
Balderas gave a no-nonsense explanation of his staff ’s role.
“We are taking over prosecution and focusing on appropriate charges for violent and dangerous chokeholds,” he said.
By comparison, D’Antonio’s stated reasons for giving up the case were windy and dense.
“My office maintains the integrity of the fair trial process, in the continuation of our efforts to insure justice is served for the victims and defendants. Since this incident occurred, Attorney General Hector Balderas and his staff have been in contact with my office regarding this case, as well as police and law enforcement reforms and accountability for the use of deadly force including the ban placed on chokehold restraint techniques. In the pursuit for justice and given the seriousness of the charges against Las Cruces Police Officer Smelser, we agreed that this case be adopted and prosecuted by the New Mexico Attorney General.”
I asked D’Antonio’s spokeswoman for clarity on why the district attorney turned the case over to another prosecutor.
She responded in writing: “The 3rd District Attorney’s office must maintain the integrity of a Fair Trial Process and continue efforts to insure justice is served for the Defendant, Las Cruces Police Officer Smelser, and the Victim, Antonio Valenzuela, in this homicide case.”
I followed up, asking how the integrity of a trial would have been harmed if D’Antonio had stayed on the case.
His spokeswoman replied: “Christopher Smelser is/was an officer for the Las Cruces Police Department. Our office has several cases in which Officer Smelser is a potential witness in the prosecution of those cases, it is by that determination that the integrity of the trial process be fair and impartial.”
Everyone knows it’s unlikely Smelser will be called as a prosecution witness while he is facing a homicide charge. Even if he wanted to cooperate, a good defense
attorney would undercut his testimony.
From a political standpoint, the district attorney’s job becomes easier by bowing out of prosecuting Smelser.
But this approach damages public confidence in the system. It’s one reason many people are reluctant to file a complaint against an abusive police officer. Unless someone is dead or maimed, a prosecutor might not move against a cop named in a citizen complaint.
Someone had to prosecute Smelser, given video evidence of his conduct.
Outdoors on the night of Feb. 29, Smelser and other officers struggled to handcuff 40-year-old Valenzuela. Tensions escalated.
Then Smelser said: “I’m going to [expletive] choke you out, bro.”
About two minutes later, Smelser announced to other officers, “Yeah, he’s out,” meaning unconscious.
Valenzuela died on the spot of what a medical examiner called “asphyxial injuries.”
D’Antonio would not have abandoned a similar case with civilian combatants. Only because Smelser was a police officer did D’Antonio want out.
In the clichéd world of politics, district attorneys like to say they will be tough but fair.
In the real world of courthouses, campaign promises are forgotten or discarded, like last year’s indictments.