Why Northern New Mexico’s mass shooting case remains in limbo

Damian Herrera first appeared in a New Mexico court to be arraigned on five counts of murder in June 2017. Four of those murder charges were resolved in district court in Santa Fe early last year, giving Herrera four life sentences. But five-and-a-half years after his arraignment, Herrera’s name is still appearing on court dockets in the 8th Judicial District, where his final homicide case has been set and reset for trial a total of 10 times — most recently on Jan. 3.

For many of those delays, the reason has stemmed from concerns about Herrera’s competency, the legal term that refers to whether a defendant is mentally fit to stand trial. A defense attorney will often raise concerns regarding competency from the outset of a case if their client won’t speak to them or shows obvious signs he or she doesn’t understand the charges filed against them.

Competency is one of the central reasons why mass shooting cases in the United States drag on for so long, prolonging the suffering experienced by survivors and loved ones of victims who wait for justice and have to relive their trauma in court. One exception is when a defendant takes their own life or is killed during the shooting. Another other is when a defendant pleads guilty, such as the case against the shooter who murdered 17 people and injured 17 others at Marjory Stoneman Douglas High School in Parkland, Florida, in February 2018.

But even by standards set by high-profile mass shootings in other states, the Herrera case is taking inordinately long to be adjudicated.

It took two-and-a-half years for the Aurora, Colorado, movie theater shooter case to be resolved after the defendant pleaded not guilty by reason of insanity, for example. In that case, the state sought the death penalty. Colorado Public Radio published a story in October last year about frustration felt by victims in the Boulder King Soopers shooting when the accused shooter in that case was also deemed incompetent to stand trial. That case is less than half as old as the one Herrera still faces in Taos County.

New Mexico laws dictate that state mental health professionals determine whether a defendant is competent through medical evaluations at the state’s mental health facility located in Las Vegas, where Herrera was ordered to return last week. If a defendant is found incompetent, those mental health professionals are required to make efforts to restore competency through mental health therapy and often through the use of medication. Despite the fact that Herrera was finally deemed competent for his jury trial to move forward in Santa Fe last year, it appears that his condition changed, according to the state’s mental health experts, leaving his remaining case in limbo. State statute allows for that to continue until competency is achieved — with one exception.

According to Section 31-9-1.5 (D) of New Mexico Criminal Procedure, which states that a district court may hold an “evidentiary hearing” for cases where a defendant charged with a violent crime causing great bodily harm is found incompetent and the court has found him or her to be dangerous. If “clear and convincing” evidence is presented to show the defendant committed the crime, he or she is then detained at the state mental health facility for the duration of their sentence, with reviews of competency and the defendant’s dangerousness every two years.

In short, Herrera’s case could remain in this judicial limbo indefinitely.

For the sake of the family members and friends of the victim in this final case, we hope it doesn’t. We hope they will receive the same closure those involved in the Santa Fe case did last year through a complete jury trial. It’s time Northern New Mexico moved on from this case.