The Times West Virginian

Local News

April 9, 2014

Pretrial motions filed in Bush case

Change of venue one of three arguments

FAIRMONT — Phillip Reese Bush attended a pretrial motions session in the Marion County Court House.

Bush was not physically present in the courtroom due to medical reasons, but he was on live video during the pretrial motions. Marion County Prosecuting Attorney Patrick Wilson did not have any motions.

“I have a motion to preclude state from calling defendant as a witness, a motion for dismissal due to unnecessary pre-indictment delay, and then an amended motion for a change of venue,” Marion County Circuit Judge Michael Aloi said.

David Grunau and Scott Shough are Bush’s defense counsels. Grunau spoke first and told the court room to not hear the first motion because it was intended for the Eddie Washington trial, which concluded in November after Washington accepted a plea deal for his part in the 1974 triple Windmill Park homicides.

“The motion to dismiss due to unnecessary indictment delay is a motion that is going to require testimony and the presentation of evidence for which we do not have enough time for today,” Grunau said. “Today is going to be the presentation of our motion for our change of venue.”

Shough then presented the reasoning for the motion for change of motion, which was primarily based up on a survey taken by an expert.

“Quite frankly, your honor, the most striking element, for me, is the fact that 30 percent of the Marion County participants in the survey indicated that they believe that Mr. Bush was either definitely guilty or probably guilty,” Shough said. “So, that’s one out of every three individuals contacted (has) already made their mind up as to his guilt or innocence and we have not gotten to voir dire or (make a) selection of any kind.”

Shough also cited surveyed individuals who made references to Bush’s previous cases.

“Did your expert have an opinion on what he or she would consider a significant percentage in a community?” Aloi asked the defense.

According to the defense, the expert did not provide a number that was specific.

“He does state that the level of discussion among the community, among the people who were sampled, is significant given the county's overall population,” Shough said.

Wilson rebutted the defense’s motion by quoting from a ruling in a 1983 case, State v. Williams.

“(It says) the mere existence of widespread publicity is not in of itself sufficient for required change of venue, nor is mere proof of prejudice against the accused,” Wilson said.

Wilson also commented on the questions and information on the survey. According to Wilson, one such question indicated that one of the two accused men had pleaded guilty.

Aloi pointed out that there was very little recollection of the events for jurors in the related Eddie Jack Washington case.

“I think we can pick a jury in Marion County, your honor,” Wilson said. “If we can panel 75-80 people, and we cannot (find a jury), the state will not object to a change of venue.”

Shough pointed out that the survey followed state-recognized rules for gathering data and that the survey showed surveyed people, not the publicity, were biased. Shough also agreed that two previous trials involving Bush were held outside Marion County.

“I will have at least two witnesses and it will be safe to schedule between an hour and two hours,” Grunau said. “There is an amended motion that is forthcoming that includes testimony from the state’s detectives and some others from the Washington case.”

Bush is currently serving life in prison at Mt. Olive Correctional Facility for conviction in two unrelated homicides from 1982, although there is a chance that he may receive a new trial for that decision.

“Mr. Bush has a petition for habeas corpus granted for an unrelated case ... that resulted in his incarceration in Mt. Olive for life,” Grunau said. “That matter is now pending before the West Virginia Supreme Court of Appeals. The oral argument has been heard. We are awaiting  a decision from the West Virginia Supreme Court.”

Wilson says he would drop the Marion County case if Mr. Bush’s life sentence becomes a re-trial.

The West Virginia Supreme Court is expected to make a decision by June 18, Wilson said.

The trial is expected to continue during the June term of court.

Bush is currently serving two life sentences for a double murder in Fairmont in 1982. He is currently facing charges in connection to the 1974 triple Windmill Park homicides.

Email Richard Babich at rbabich@timeswv.com or follow him on Twitter @rbabichTWV.

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