The Times West Virginian

September 24, 2013

Bush still scheduled for trial in November

Judge denies attorney’s request to change date

By Mary Wade Burnside
Times West Virginian

FAIRMONT — In spite of his attorney’s attempt to get his trial moved to a separate date in the October term of court, accused murderer Phillip Reese Bush is still scheduled to go on trial the same day as Eddie Jack Washington, who will be tried separately for the same 1974 triple homicide, Marion County Circuit Judge Michael Aloi ruled Monday.

That means that if Washington’s trial goes on as scheduled, without a continuance, dismissal or a guilty plea, then Bush’s trial probably will be moved to the February term of court because it would be impossible to try the two complex cases in the same week.

Both men are scheduled to go to trial Nov. 20, said Bush’s attorney, Scott Shough.

Shough asked Aloi to move Bush’s trial to another date within the October term of court so that he would be tried before the start of the February court term.

However, Aloi and prosecuting attorney Pat Wilson noted a crowded docket for the October term, with plans to try both Washington as well as Kristyn and Michael Palmer, who are accused of killing her father, Everett “Ed” Wilson, in December 2011 and who will be tried separately.

“As Mr. Wilson indicated, as far as the court’s schedule, we have trials scheduled in November with Mr. Washington, we have trials scheduled for the first two weeks of January, the Palmer cases, so it just limits our choices,” Aloi said.

The Washington case should go first, Aloi added, because unlike Bush, he is only incarcerated on the charge of the triple homicide of Guy Lester Phillips, 20; his wife, Wanda June Phillips, 19; and Billy Ray Cobb, 27, all of Fairmont’s Montgomery Avenue area, on Aug. 2, 1974. The bodies were found, shot execution style, at Windmill Park.

Bush, however, already was in custody and serving time at the Mount Olive Correctional Complex for the 1983 convictions of the felony murders of Kathleen Jane Williams and Charles Dale Goff in Fairmont.

Bush appeared in court Monday from the Mount Olive Correctional Complex via video conference.

Washington and Bush both were indicted in February by a special Marion County grand jury on three counts of first-degree murder and one count of conspiracy to commit a felony in the nearly 40-year-old case. Bush already was at Mount Olive but Washington had to be extradited from Florida, where he was living at the time.

If Washington is tried and found innocent of the crimes, then he would be a free man.

If Bush is tried and found innocent, however, he would remain incarcerated on the previous convictions.

That scenario could change, however, if the West Virginia Supreme Court of Appeals were to rule in Bush’s favor on a writ of habeas corpus that was granted on Feb. 15, 2013, by Ohio County Circuit Judge James P. Mazzone.

The 1983 case was moved to Ohio County because of pretrial publicity. Bush’s attorneys petitioned for a writ of habeas corpus to set aside the 1983 convictions based on “ineffective representation of counsel” and awarded him a new trial. The state has appealed that reversal and the matter is before the state Supreme Court.

The basis for that lies in the changing of the wording of “rape” to “sexual assault” in the West Virginia State Code in 1976 as a condition for grounds to charge a defendant with felony murder. However, the felony murder statute was not amended to reflect the change in language. So when the jury at Bush’s trial for the 1983 murders was instructed they could find Bush guilty on felony murder committed by rape, it was for a crime that legally no longer existed.

Presiding Judge Arthur M. Recht picked up on this, saying on record that he did not think the Legislature had amended the statute.

“But this was not objected to by (Bush’s) lawyers,” Wheeling attorney Donald Tennant, Bush’s lawyer in this case, has stated.

On Monday, a short pretrial hearing was held so that Shough could ask Aloi to move his client’s trial to a separate trial week within the same October hearing.

“We’re simply asking for a separate and apart trial week to be set by the court separate from Mr. Washington so if in fact we do proceed to trial, which we anticipate doing, there is the same possibility of getting his trial done in the October term of court,” Shough said Monday. “If they’re both set for the same trial week and Mr. Washington proceeds to trial, there just simply isn’t enough time to then do Mr. Bush’s trial that same week.”

At that point, the likelihood would be that Bush’s trial then would be scheduled for the February court term, and Shough made a case that his client deserved a speedy trial.

“Your honor, although we have not filed specifically for a speedy trial, we don’t know the date of Mr. Bush’s habeas for the ’83 case,” Shough said. “If a decision favorable to him is returned, this charge is the only thing keeping him incarcerated. So obviously he would have an interest in proceeding to trial as soon as possible.”

Aloi noted that if Washington’s trial is continued, then Bush’s trial would proceed on the Nov. 20 date.

“If Mr. Washington goes and Mr. Bush would get a result from the Supreme Court that would be favorable to him ... his attorneys could say we would like to have a trial and maybe we could give him a trial date in the October term,” Aloi responded. “At this point, I don’t see it necessarily prejudicial to him if we don’t set a separate trial date and it certainly doesn’t preclude the possibility of a trial in the October term if we would set it for the same time.”

Another issue is a potential change of venue. According to a sample poll using 20 questions given to 20 Marion County residents on behalf of the defense team, only five or six of them “had already determined what they believe the outcome was or the guilt or innocence,” Shough said.

However, if Bush is to be tried after the Washington case, the publicity surrounding that trial could change that, and so after Washington’s trial, the defense wants to conduct a new poll, this time asking more people to respond, to see if the public’s view of Bush has changed.

Aloi indicated that the defense’s desire for additional polling would work well with a later trial date.

“I can understand you want to have a look at another poll after the Washington trial,” Aloi said. “I just don’t know how that can be done and happen within this term of court. I don’t know how quick their turnaround can be. How do you know the effect of the Washington trial until you have your polling done?”

Shough replied, “Your honor, that type of concern is alleviated if we’re given a later trial date within the same term. That would be a trade-off on our side between if the polling can be quick enough versus a continuance so the polling could be done.”

If the polling indicated that a change of venue was in order and it was granted, Aloi said, then the desire for an earlier court date would be out of the hands of the Marion County Circuit Court altogether.

However, Shough said, if Aloi were to grant a later court date within the October term, “At least we would have a deadline to work toward and we would have a deadline that would theoretically allow him to go to trial this term.”

Aloi denied the motion and noted Shough’s objection.

“So you need to be ready to go to trial if Mr. Washington gets it resolved,” Aloi added. “If not, then Mr. Wilson, I expect you to identify along in discussion with counsel the earliest available time in the February term of court.”

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