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Wednesday, May 25, 2016

City to seeks special prosecutor
in case against new councilor

District attorney declines to prosecute Bency;
Police chief denies allegation or improper conduct


Rio Rancho will proceed with a misdemeanor charge against newly-elected city councilor Dave Bency and will seek an outside attorney to prosecute the case.

Bency is accused of filing a false a false police report accusing his runoff election opponent, Lonnie Clayton, accusing him of tampering with a Bency political sign at Meadowlark Senior Center, typically the polling place that attracts the most voters.

The charge was filed on Thursday, April 7 in Magistrate Court, days before the April 12 runoff election for the District 6 city council.

By law, the city is limited to prosecuting cases in its own municipal court. Magistrate cases are handled by the district court system and prosecuted by the district attorney’s office.

Lemuel Martinez, the D.A. for 13th District that includes Sandoval County, confirmed Tuesday afternoon that his office will not prosecute the case. But because the city wants to continue the case, Martinez confirmed that he appointed Rio Rancho city attorney Jennifer Vega-Brown as a special prosecutor on the matter.

But Vega-Brown has a conflict of interest since she already represents Bency on city business, so she requested and received a continuance of the case while the city seeks to hire outside legal counsel.

Benny's attorney, William J. Tryon, said he questions whether Vega-Brown has the authority in her role of a special prosecutor to appoint a replacement special prosecutor. That appointment power is given to the district attorney by statute, but will be up to the court to decide whether the D.A.’s appointment has the same power by extension.

Tryon, a long-time defense attorney in Sandoval County, said it was unusual for the city attorney’s office to involve itself in a misdemeanor case.

“It is strange,” Tryon said. “The point of the matter in her motion is that she is looking to appoint somebody else. But she can’t appoint somebody else.”

Vega-Brown declined to comment on the specifics of the case in a telephone interview Tuesday because it is an ongoing court matter.

According to court documents, Vega-Brown was appointed special prosecutor on May 17 and received official notification two days later. Recognizing the conflict of interest, Vega-Brown filed the continuance request.

The continuance was granted by Magistrate Judge Delilah Montano-Baca, who has been assigned the case.

Tryon, Bency and three reporters were at ate Court early Tuesday expecting a preliminary hearing, only to discover the case had been removed from Montano-Baca’s posted docket (list of cases) and had instead been delayed to an unspecified date.

Both the motion for continuance filed by Vega-Brown and the order granted by Judge Montano-Baca state "the counsel for the defense was out of his office and not available" when the documents were filed.

Tryon said he was not going to "make a big deal" of the notification issue. But he did have plenty of other things to say, accusing Police Chief Mike Geyer directed Officer Gregory Herrera to file the charge.

“What they should do is dismiss it because it shouldn’t have been filed in the first place. The officer ended up having to file the charges, and that’s very unusual,” Tryon said. “It would have to come through a chain of command decision, and that would be the chief of police.

“That’s what I am saying publicly and out loud: The chief of police is involved with this in an improper way. “

Geyer responded to Tryon’s allegations Wednesday night during a break in Wednesday’s city council meeting.

“We have an established procedure that we use for consistency, and I do not see charges or reports when they are filed,” Geyer said. “When a complaint is filed it is turned over to an officer for investigation. In this case, by luck of the draw for lack of a better term, it went to Officer Herrera.

“An officer will investigate a complaint and decide if there is   enough evidence on whether to proceed. On some complaints on more serious charges like murder, rape or robbery, detectives who specialize in investigating those crimes may become involved in the investigation.

“We meet weekly and I receive a status report on those higher-profile cases, and I do not intercede unless there is something that looks incorrect,” Geyer said. “I did not direct anyone or give any direction on this case, and I did not receive any input from the city administration on this matter. They do not work that way. I would not be able to do my job properly if they did.”

Tryon said his office contacted the chief of police twice in an attempt to schedule a deposition out of court, but the chief did not respond. Geyer denied he had been contacted by Tryon.

“There has not been any communication to my office from Mr. Tryon,” Geyer said. “I have not received any phone calls or phone messages on my office phone or cell phone, nor have I seen any letters or written communication from him on this matter.”

Typically a pre-trial hearing includes the legal process of discovery, defined by Wikipedia as a procedure where “each party can obtain evidence from the other party or parties by means of discovery devices such as a request for answers to interrogatories, request for production of documents, request for admissions and depositions.” An exchange of witness lists is generally part of the process.

Tryon has submitted his witness list that includes officer Herrera, Chief Geyer and Rio Rancho Mayor Gregg Hull. Bency has suggested in previous comments that the charge is politically motivated and was being orchestrated from the “fourth floor of city hall,” where the mayor and city administrator have offices.

Informed that his name was on Tryon’s witness list after Wednesday’s council meeting, Hull declined to comment because the matter is part of ongoing litigation.

Geyer said he would testify if subpoenaed.

Tryon’s witness also states that the “defense may call anyone listed on the plaintiff’s witness list” and “anyone named in any of the discovery of the case.”

That would include Joe Nieto, a retired Intel worker who told Bency that he had seen the sign being tampered with. Based on that information, Bency filed his report.

The police statement filed as part of the charge said Nieto could not positively identify the individual who was tampering with the sign. Bency’s naming of Clayton, based on what he was told by Nieto, is the basis for the charge.

Tryon disputes the police statement on their interview with the witness.

“We met with Mr. Nieto twice after he met with the police and he said he was misquoted,” Tryon said. “The description he was trying to give the police got pushed away and not particularly honored.

“If the matter dos go to court he will be a witness.”

Asked if he believed the case bordered on malicious prosecution, Tryon said, “I personally would stop short of using those words, but it is unusual for sure. Malicious is a legal term and it catches people who are functionaries who were simply doing what they were told.”
In a previous case involving election charges filed by the city two years ago, charges against former Mayor Mike Williams was turned over to a special prosecutor and moved from Sandoval County Magistrate Court to Valencia County Magistrate Court, which is also part of the 13th Judicial District. That case was dismissed before any witnesses could be called.

Tryon represented Williams in that case.

“Frankly, if they were smart they would dismiss it because it never should have been filed in the first place,” Tryon said.

“David was running for office when he was notified by a reputable witness we have, Joe Nieto, indicating somebody is tearing down one of Councilor Bency’s signs. So David got as much information as he could and filed a complaint – not a charge but a complaint, and there is a big difference.

“We don’t want out people out in the middle of (Highway) 528 with dueling pistols, so we have a process where they can file a complaint. That’s what David Bency did.

“They (the police) would not meet with us prior to the election. We offered to meet with them after the election and they wouldn’t do it.”

“We had a meeting scheduled with them on Wednesday, April 13 at 2 p.m. (six days after the charges were filed),” Bency said.  “And they told my attorney ‘That’s not good enough.’ ”
Said Tryon: “David won the election handily anyway. The whole thing is that charges were filed anyway which is very unusual.”

Bency reiterated his previous statements on Tuesday, saying, “I have nothing against the officer. He was simply doing what he was told to do.

“I look forward to my day in court.” 


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