Tuesday, June 10, 2008

The next phase

An interesting case and one that has been going on for quite a while. Although this is a new phase of the matter.

Jury set in AF colonel's death case
By Zeke MacCormack: Express-News

BOERNE — The facts surrounding Air Force Col. Philip Shue's death aren't the only unusual elements of a lawsuit his widow filed against USAA Life Insurance Co., which goes to trial today.
The presiding judge has ordered District Attorney Bruce Curry to reveal to attorneys for Tracy Shue and USAA testimony heard by grand jurors on Philip Shue's death, which was deemed a suicide by the medical examiner, the justice of the peace and investigators.

Tracy Shue contends her husband was abducted and tortured before his car crashed into a tree April 16, 2003, causing a fatal head injury. His nipples were cut off, his wallet was missing and tape hung from the wrists and ankles of the Wilford Hall psychiatrist.

Tracy Shue accuses USAA of negligence and wrongful death for refusing to cancel a $500,000 life insurance policy when Philip Shue told the insurer in 1999 that his ex-wife, the policy owner, might be plotting to kill him.

USAA denies any wrongdoing. It advised Shue to contact police and a lawyer, saying it couldn't cancel the policy owned by his ex-wife, Nancy Shue.

Nancy Shue, who denies any role in his death, was a defendant in the lawsuit but received the policy proceeds under a settlement reached with Tracy Shue.

Tracy Shue's attorneys say they want the grand jury evidence to impeach witnesses and refresh memories of those called to the stand in the trial, which is slated to last six weeks. A jury was picked Monday, and opening arguments will begin today.

But Curry and Assistant Attorney General Angela Goodwin say the litigants haven't met the legal threshold of showing “a particularized need,” noting the witnesses are alive and available to testify.

The 4th Court of Appeals last week refused to overrule Kendall County Court-at-Law Judge Bill Palmer's order for Curry to share the evidence that led the grand jury Nov. 24, 2003, to say it found no compelling evidence of criminal activity in Shue's death.

Noting the 4th Court cited no authority or rationale for its order, Curry plans to ask the court of criminal appeals to protect the grand jury secrecy.

“This is an important case from a jurisprudence point of view,” he said. “I want the highest court to tell me to give that up, and why.”

St. Mary's University law Professor Dave Schlueter said the need for evidence in civil cases sometimes trumps the traditional secrecy of grand jury proceedings.
He said the Shue case “represents a classic tension between the generous discovery of evidence in civil cases, against the general rule that grand jury testimony should remain secret.”

This is the latest Palmer ruling in the case to rile the legal community and survive appeal.
He sanctioned former Kendall County Justice of the Peace Nancy White $5,000 last year for refusing to testify on why she ruled Shue's death a suicide.

White cited a recognized “mental processes exemption” that precludes judges from being forced to explain the rationale behind rulings. But Palmer said that didn't apply to her work as a coroner, and he directed her to submit to a deposition.

As juror candidates were screened Monday for the long-awaited trial, Tracy Shue's lawyer, Jason Davis, asked the courtroom of candidates if they were familiar with the case he called “somewhat unusual.”

At least five said they knew enough to color their judgment. But, by day's end, six jurors and two alternates were seated.