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E-mail This StoryJudge Mark Rusch will not oversee a capital murder trial after a presiding judge removed him from the case at the request of the defense.
Presiding Judge Gary Stephens approved a motion to recuse Rusch from the Mark Lyle Bell capital murder trial last Thursday, according to Collin County court records.
Attorneys for Bell, of McKinney, filed a brief earlier this month in the 401st District Court asking Stephens to force Rusch to step down from his chair for Bell's capital murder trial claiming that his handling of possible evidence obtained from Bell's defense attorney's office made him a "material witness" in the case.
Stephen's ruling on Rusch's status in the trial gives the defense the chance to subpoena Rusch as a witness in the trial.
Steven Miears, Bell's lead defense counsel, said they were very pleased with Stephens' decision.
"This decision confirms that Keith Gore did nothing wrong in seeking to lawfully protect and guard the attorney-client privilege," Miears said by email. "It is disappointing that Collin County's lead prosecutors, [Assistant District Attorney Greg Davis and Chris Milner], put a respected District Judge in the position of issuing an obviously illegal search warrant."
Bell was arrested last January and charged with capital murder in connection with the Dec. 26, 2007, murder of Craig Nail. Also arrested were the deceased's estranged wife, Vera Elizabeth Guthrie-Nail of Frisco, and Thomas Edward Grace of Carrollton. Allegations have been made that Guthrie-Nail hired Bell as a hit man to kill her estranged husband.
Rusch signed a search warrant in February for Gore's office, one of the attorneys representing Bell. The Collin County District Attorney's office submitted the request for Gore's office on W. Virginia Parkway after staffers learned Gore may have received evidence from Bell's wife, Linda, including a pair of shoes that he allegedly wore during the initial murder and letters detailing escape plans and suicide attempts, according to the warrant affidavit.
Defense attorneys claim after the search warrant was executed, the overseer of the search, attorney Eric Higgins, and two Frisco police detectives returned some of the seized materials to Rusch's home including a sealed box. They claim if the detectives were called to testify, they would recall that they left Rusch and Higgins alone with the materials and then later saw Rusch open the sealed box with a knife, according to the brief.
Defense attorneys believe that Rusch made himself a witness in the case when he inspected the materials in his home.
"Unfortunately, we anticipate having to call Judge Rusch as a witness in regards to various motions to suppress that will be heard in the future," Miears said. "We definitely want to know his thoughts on why the Frisco (Police) detectives dispute his version of the facts on how our evidence was handled."
A letter sent to the presiding judge by Collin County Assistant District Attorney Bill Dobiyanski claims the defense's allegations are false. He said Rusch was "at no time" alone with any of the seized materials and all the items were reviewed in the presence of Higgins and the police detectives.
The defense also claims that bias exists whether Rusch opened the box or not since Rusch had knowledge of the possible identity of certain pieces of evidence from the letter that Bell wrote to his wife that was included in the search warrant's affidavit.
"A reasonable man would know from this writing that Judge Rusch could only expect the sealed box to contain exculpatory evidence - a receipt for shoes purchased two or three days after the killing - giving rise to the instant prosecution," the briefing said.
Dobiyanski said Rusch does not meet the legal definition of a material witness.
"He has no personal knowledge of any disputed issues and he cannot testify regarding the defendant's mental state," according to the letter. "Thus, he is not a material witness."
Tim Wyatt, Collin County spokesman, said the DA's office declined to comment on Stephens' most recent ruling saying they could not offer direct comments on an ongoing case.
Contact Danny Gallagher at dgallagher@acnpapers.com.
