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It was the day after Christmas in 2007 when police were called to a house just south of downtown Frisco.
A woman who had been shot had run to a neighbor's house and called for help. Upstairs in the house next door, the police found the body of 36 year old Craig Nail. He died of gunshot wounds before the police arrived. The woman who was shot was his girlfriend, Therisa Hofman. She was Care Flighted to a hospital, and later recovered.
|Mark Lyle Bell|
|Vera Elizabeth Guthrie-Nail|
|Thomas Edward Grace|
Two weeks later, the Frisco police announced they had made an arrest in the murder/shooting case. Arrested was Craig Nail's ex-wife, Vera Elizabeth Guthrie-Nail.
Later a Collin County Grand Jury indicted Guthrie-Nail, Thomas Edward Grace, and Mark Lyle Bell -- all on charges of capital murder. Guthrie-Nail was accused of using Thomas Grace as an intermediary to contract a murder for hire with Mark Bell, the triggerman.
During the grand jury investigation, prosecutors learned that Mark Bell's wife had given his attorney, Keith Gore, some letters and a sealed shoe box, which she told Gore contained evidence crucial to his defense, but which prosecutors allege contained evidence that would tie Bell to the murder.
The District Attorney's office then went to Judge Robert Dry, who was supervising the Grand Jury and asked for a subpoena for the box, letters and a pair of boots they believed were also given to Gore by Mrs. Bell. Dry scheduled a hearing on the request for 5 days later.
However later that same day, the DA and a Frisco police detective also filed a request for a search warrant on Keith Gore's office with a different judge. Judge Mark Rusch issued the warrant, and detectives seized some letters, a multi-page, stapled document, and a sealed shoe box. No boots were found.
The seized items were taken by police to Judge Rusch, who was at home at the time, and later to the Frisco police evidence room.
What happened next is in dispute.
The Collin County District Attorney's office and the Frisco police allege that Judge Rusch used a knife to open the seals of the shoe box and inspect its contents. Judge Rusch denies this and says he gave the box back to the prosecution team still sealed.
According to a motion filed with the appeals court by the defense, at a later court hearing officers involved in the search stated that the contents of the box had been switched out. They said the box originally contained a Wal Mart receipt, but later the receipt was missing and a business card from a Wal Mart security officer was substituted. The defense claims that the receipt was exculpatory evidence - that it would prove that the boots sought by police were purchased after the murder.
But the receipt is gone. Who done it?
Claiming that by inspecting the seized evidence, Judge Mark Rusch became a material witness, the defense team sought to have Judge Rusch recused. A hearing was held before an assigned judge who ordered that Rusch recuse himself from the case -- to be replaced by Judge Chris Oldner.
The defense also accused the Collin County District Attorney's office of prosecutorial misconduct and sought to question the First Assistant District Attorney, Greg Davis. Judge Oldner denied the request.
Oldner also denied a defense motion to disqualify the District Attorney's Office from the case.
Bell's attorneys appealed Oldner's decisions to the 5th Court of Appeals in Dallas, which also refused to force the DA off the case. Bell has now appealed again, this time to the Texas Court of Criminal Appeals, which earlier this month agreed to hear the case and has ordered that arguments be submitted.
So who is lying - The judge? The DA? The police?
Perhaps we'll never know who opened the shoe box, and what happened to the evidence. It does seem possible that misconduct and mishandling of evidence could make prosecution of Mr. Bell difficult if not impossible.
This 2 year old case is starting to look like something from a television detective story plot. Unfortunately it's unlikely that a super detective is going to come on the scene with his scientific tool kit and tell us who done it.
CSI:Frisco? Not hardly.
IN RE MARK LYLE BELL, Order holding in abeyance, Texas Court of Criminal Appeals, February 5, 2010
Appeals Court refuses to recuse DA in Bell case, CCO, December 9, 2009
Mark Bell's attorneys ask appeals court to force DA off the case, CCO - November 23, 2009
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
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
Mr. Keith Gore was subjected to the vile tactics used by these elected Judges and the DA just for representing his client.
Mr. Gore is an honorable man and hopefully the voters will elect him for the 296th Dist. Court tomorrow.
Once again, the main ADA in this whole mess was Chris Milner, the man behind dozens of bungled cases (Does the Sheriff Bowles fiasco ring a bell?) , dismissed indictments, and hundreds of thousands of taxpayer dollars spent on failed investigations. Like the old joke, the list is long but not distinguished.
Milner was the ADA who drafted the search warrant and ran to Rusch with this whole concealing evidence claim. Now Gore has been vindicated, a death penalty case has error built into it, and the county is much poorer, just so the DA's office can try and justify its wrongful conduct here.
When will DA Roach step up and admit his mistake in letting this unethical loose cannon ruin his former good name? Roach prides himself on his alleged brilliant mind, but most smart men know when to cut their losses and put the rabid dog down.
Prediction: When Roach is gone, and others (new DA, feds, civil juries, whomever) re-examine Milner's legacy of incompetence and vindictiveness, Roach will be held accountable by the judgment of history for his blind eye towards the perversion of justice.
The subpoena for Gore to produce the shoebox was already set for a hearing in aonther court when Milner ran down to Rusch saying how he had to sign the search warrant or Gore was going to destroy the boots. Rusch's mistake was in trusting Milner's word that this drastic action was immediately necessary. He tried to provide Gore a measure of protection (by appointing a special master) but that was like slamming the barn door shut after all the cows run out.
Once the overeager Frisco PD and Milner actually got into Gore's office, they violated both the scope and intent of the warrant, and of course, did not find what they so stridently claimed would be there. We still dont know exactly what happened during the search because so far the testimony is all conflicting about what they found and where they found it - which usually means somebody is not telling the truth.
As to the inspection of the boxes, Judges routinely inspect things in camera (meaning out of view of the parties) to try and ensure some protection for sensitive material. While I disagree that any first year law student would have known better, I do agree that it was another error in judgment by Rusch, and only further compounded his earlier error in signing the warrant.
I'm not trying to defend Rusch's actions. I think he made a hell of a mistake in judgment and he has rightly paid a price for it. I just wanted to set the record straight where this whole problem started - in the diabolical mind and hands of Chris Milner.
Believe me, there is plenty of blame to go around on all sides in this mess of a case.
Welcome to collin county Texas, we promise to grow our family by consuming yours :-)
Maybe these people are guilty. But convicting criminals requires that you do so all above board so there are no doubts or room for appeal.
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