ALBUQUERQUE, N.M. — Charges against Albuquerque criminal defense attorney David “Chip” Venie, accused of aggravated battery against a homeless man in a shooting incident at his law office, have been dismissed based on a judge’s finding that the prosecution violated Venie’s rights in the grand jury process.
State District Judge Carl Butkus canceled the trial, which had been scheduled for next week, saying Venie is entitled to “another, properly conducted, grand jury proceeding.”
“It is the conclusion of the court that substantial rights of target defendant Venie explicit in New Mexico’s grand jury process have been circumvented and rendered meaningless,” Butkus wrote in a May opinion dismissing the indictment. Venie had asked for dismissal in documents filed in May of 2013.
One count of the indictment had been dismissed earlier.
Venie was indicted in February 2013 on charges including aggravated battery with a firearm, receiving stolen property, aggravated assault with a deadly weapon and tampering with evidence. Butkus, a former judge in the District Court’s criminal division before moving to the civil division, was assigned to the case after other criminal division judges recused.
Under a procedure established through a 2009 court case and a subsequent rule, the target of a grand jury investigation may present evidence showing lack of culpability. The rule is intended to avoid the filing of cases that should not be indicted.
Before the case was indicted, Venie informed the prosecution he had witnesses willing to testify that, on the morning of Aug. 28, 2012, a stranger – Stephen Anthony Biddinger – was yelling, screaming and waving his hands as he entered Venie’s office on Lomas three times.
Venie said the witnesses would testify that Biddinger was “acting kinda crazy,” assaulted witnesses and refused to leave before Venie fired a gun. Biddinger told police afterward that he was “tweaking” on “ice,” according to Venie’s filing.
Venie, who has been representing himself, wanted the witnesses to be called or their statements read to the grand jury. Court rules say the target must give 24 hours’ notice about such evidence and Venie had done that.
The 5th District Attorney’s Office in southeast New Mexico, which took the case after Bernalillo County prosecutors stepped aside when Venie challenged their involvement, asked the grand jury judge for permission not to present the evidence, which included witnesses, witness statements and several dozen proposed instructions, and 911 tapes.
Chief Deputy District Attorney Davis Ruark of Carlsbad, who presented the case, sent his motion to the grand jury judge on the morning of the grand jury presentation. Venie wasn’t given a copy and had no opportunity to contest it.
Butkus cited the prosecution’s failure to notify Venie in his order dismissing the remaining counts in the indictment without prejudice, meaning they could be refiled.
The judge said the failure to notify Venie prevented him from challenging the prosecution’s request.
“This is not merely a technical violation,” Butkus wrote in his 18-page opinion, “but is a substantial violation.”
The judge also said the prosecutor didn’t comply with the grand jury judge’s order dealing with how the grand jurors were to be informed of the evidence Venie wanted them to hear, particularly dealing with the immediate availability of the witnesses.
Butkus said the problems “short-circuited the procedure” set up by the Supreme Court to preserve the structural integrity of the grand jury process.
Neither Venie nor Ruark could be reached for comment.