The Collin County Observer

Charging First Assistant District Attorney Greg Davis with "prosecutorial misconduct", attorneys for accused murderer Mark Bell have petitioned a Dallas appeals court to issue a "writ of mandamus" that would force District Attorney John Roach and his entire office to recuse themselves from the case against Bell.

If the DA's office was recused, an outside prosecutor would be brought in to conduct the investigation and capital murder trial against Bell, who is accused of the 2007 murder for hire killing of Craig Nail in Frisco.

The legal wrangling began in March of 2008, after Judge Mark Rusch issued an unprecedented search warrant allowing Frisco police to search the files of Bell's defense attorney, Keith Gore. According to papers filed with the court, the police seized a shoe box, some papers and took pictures of papers and files in Gore's office. In his filing before the appeals court, Gore alleges that pictures were taken of papers and files not in the warrant, that an important document is missing and presumed lost, and that the police also search the offices of other attorneys who shared the same building with Gore.

In their arguments before the court of appeals, Gore and Miears complain that the DA's office not only has copies of the defense files, but is actually using those files in an attempt to blunt defense strategy.

Gore had already been served with a grand jury subpoena and a hearing had been scheduled by Judge Robert Dry on a motion to quash the subpeonas when the police executed the warrant against Gore. The defense accuses the District Attorney of unethical "forum shopping" for a sympathetic judge since the DA went to Judge Rusch for the warrant while Judge Dry was working the case.

In their petition before the court of appeals, Gore and co-counsel Steven Miears ask the court to decide 5 issues:

Already, a visiting judge has ruled that Judge Mark Rusch remove himself from the case after Rusch had verbally assured the defense that "no judge would issue a search warrant for the offices of a defense counsel" and then 2 days later, signing that warrant.

The Texas Criminal Defense Association had earlier filed an amicus curiae brief which in strong terms, condemned the "raid on lawyer's office" as being "offensive to the Texas Constitutional and the Constitution of the United States" and called it "reprehensible".

Now the Texas 5th Court of Appeals will weigh into the whole sordid mess caused by prosecutors who decided to "raid" a defense attorney's office.

Bill

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Notes:

Application for Writs of Mandamus and/or Prohibition with Incorporated Brief in Support and Motion for Stay of Proceedings Below, by Steven Miears and Keith Gore before the Texas 5th Court of Appeals, November 20, 2009

Case 401-80353-08 Texas vs. Mark Bell, case history -- Collin County 401st District Court

Judge Rusch recused from Bell murder trial, McKinney Courier-Gazette, August 27, 2008

Hearing on "raid" of attorney office rescheduled CCO - August 7, 2008

Amicus Curiae brief of the TCDA, August 5, 2008

Defense attorney search warrant motion hearing moved - McKinney Courier-Gazette, Aug. 6, 2008

One of these days these boots are going to walk all over your attorney-client privilege - Grits for Breakfast, Aug. 3, 2008

Where are the boots?: Details from the Gore warrant, affidavit and return - CCO, July 31, 2008

The Warrant, affidavit and return and more

The Defense motion in Response to the State's Motion to Disqualify Defense Counsel

MCG - AG opposes subpoenas of Rusch and Dry - CCO, July 23, 2008

Not Judge Rusch's first controversial warrant - CCO, July 21, 2008

NBC5 - Detectives Seize Documents From Murder-For-Hire Suspect's Attorney - CCO, July 18, 2008