DA may lose eyewitness to dad's murder

BELEN, N.M. (KRQE) - There’s a major roadblock for prosecutors in the case of a little boy accused of killing his father.

The suspect, Benjamin Hilburn, was just 9 years old when the shooting happened in Belen in August 2009.

On Friday, prosecutors learned the Attorney General’s Office is refusing to fight to have his sister testify.

She was only 6 at the time of the shooting and is the only eyewitness.

Last year a District Court judge found the girl was not competent to testify.

The AG’s office was appealing the case to the state Supreme Court on behalf of the 13th Judicial District Attorney's Office. That’s standard practice.

But prosecutors say the AG has backed out by saying the lower court made a sound decision.

“I don't know if it makes it harder to prosecute other than the fact that we may have to take a different tactic or go through a different process on how to proceed with the case,” Chief Deputy District Attorney Ron Lopez told KRQE News 13.

Now, the prosecution may ask that the sister, turning 10 this year, goes through a competency hearing again.

“The witness has been under medical treatment with medication, etc., so we are contemplating whether to file for another competency hearing to determine whether she is now competent to stand trial,” Lopez said.

Filing for another competency hearing could push the trial down the road. It’s currently scheduled for May.