Russell Phillips is still incarcerated in West Virginia. 

He asked that this message be posted.

"TODAY, 42 YEARS AGO MY FRIEND TIMMY ROBERTS PASSED AWAY. I OFTEN WONDER WHAT HE WOULD HAVE BEEN LIKE TODAY. TODAY 42 YEARS AGO TIMMY'S FATHER WAS KILLED. HIS CASE REMAINS TO THIS DAY A COLD CASE FILE. PLEASE PUT THIS POSTING ON THE WEB SITE."

Looking for more information on this case? Check out my web site.

margaretstoddart.wix.com/chaparral

"Circumstantial evidence is a very tricky thing...; it may point very straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different."  Sherlock Holmes

Let's back up a little as I missed sharing some important parts of this ongoing saga.

The West Virginia University Clinical Law Program didn't immediately give up on Rusty's case when the West Virginia State Police Crime Lab failed to find DNA on the crime scene evidence. In April 2011 law students Jenny Hayhurst and Katherine Charonko, under the supervision of professor Michael Aloi, made a motion to reopen the murder case arguing manner of death was founded in error by Forensic Examiner James Frost. They stated in their motion that Dr Daniel Spitz, Chief County Medical Examiner, Macomb County, Michigan had offered to render an expert opinion on manner of death but a court order was required to release the necessary autopsy photos and xrays. Judge Jordan refused saying the case ended June 4 2010 with the failure to find DNA.

Frost had testified at Rusty's 1983 trial that the span of damage to the victim's spinal vertebra was too wide to have been caused by a contact or near contact shotgun shot thereby ruling out suicide. Spitz was prepared to explain that this is not necessarily true and such a shot could not be ruled out without examining the soft tissue which of course was absent due to decomposition.

On April 21 2011 WVU Clinical Law Program students wrote to Rusty to tell him Judge Jordan had refused their motion to re-open his case and his only recourse was via a Post Conviction Habeas Corpus proceeding through his court appointed attorney, Chad Cissel. They were aware Rusty had filed Disciplinary Charges against Cissel and advised him to request a new attorney via Jordan. They further advised that they were closing his file with the Clinical Law Program and offered to send information on his file to the new attorney.

During the two years that Cissel had been assigned to Rusty's case he never corresponded with Rusty or visited him. Rusty wasn't the only client he ignored. The law students were unable to get him to respond to them either. 

Judge Jordan denied Rusty's request for a new lawyer in his June 9 2011 order stating, "This court is very upset that Mr. Phillips would attempt to create an artificial conflict of interest by filing an ethics complaint against Mr. Cissel." "What lawyer wants to take Mr. Phillips' case after he has filed such a complaint against Mr. Cissel?" 

A few weeks later on July 26 2011 Jordan reversed his ruling agreeing to assign a new attorney after Cissel ignored his order to contact Rusty. In doing so he stated he had difficulty finding anyone willing to take the case until Mr. Hoosier agreed. 

The following year Cissel was administratively suspended from practicing law following a 7 count statement of charges by the Lawyer Disciplinary Board.

On September 30 2013 Chad Cissel, age 38, died suddenly. The Disciplinary Counsel dismissed all complaints against him.

I will bring us up to date in the next installment.

 

 

WV Justice Failure

Repeated failures of the WV justice system have left me pulling out my hair and speechless. I expected that the experience would have been similar to what the various Innocence Projects have gone through but I wasn't prepared for how emotionally draining it would be.

So the WV University Innocence Project was stonewalled into giving up. They dropped the case after receiving no cooperation from the WV State Police Crime Lab. Autopsy results and crime photographs were denied. Lab work was said to have been done but revealed results that could not be believed. Note that the Crime Lab is part of the State Police. !!!

Judge Jordan assigned  attorney Chad Cissel to work on Russell's habeas corpus petition. Cissel completely ignored the case for years. He had a habit of doing that with clients and was cited for his alleged repeated failure to communicate with clients by the Lawyer Disciplinary Board. The West Virginia Record printed an article on this in their December 27 2012 edition, written by Lawrence Smith.

http://wvrecord.com/news/256560-mineral-county-attorney-charged-with-failing-to-communicate-with-clients

Russell is now being represented by attorney Adrian Hoosier. We will see if Mr. Hoosier is capable of making any progress towards justice and truth in this toxic entanglement.

WV Police Crime Lab finds No DNA On Blood Soaked Clothing

A news item in the Parsons Advocate on June 16 2010 written by Heidi Pitzer reads, Lack of DNA means no new trial for Phillips. A Tucker County Circuit judge dismissed a motion filed on behalf of Russell “Rusty” Phillips after no results were found during new DNA testing. A Court order filed by Circuit Judge Phil Jordan with the Mineral County Circuit Clerk on June 4 reads, “Because no DNA evidence was found that would raise reasonable probability, the defendant’s verdict or sentence would be more favorable. The court hereby dismisses this matter from the docket of this court."

I have waited before updating this blog in the hopes of obtaining a copy of Judge Jordan's ruling. So far not even Russell Phillips has seen anything from the court. In fact Russell didn't even know about this until I mailed him a copy of the Parson's Advocate article weeks after it was published.

If this story is true, it raises several questions. How could the West Virginia State Police Crime Lab find no DNA at all on several blood soaked items of clothing? How bad do the conditions in the State Police Evidence locker have to be to degrade all that blood evidence to the point where a modern forensic laboratory can find NO DNA at all!

Judge Jordan’s order granting the motion for testing dated November 4, 2009 stated that the results should be provided to the court within 120 days. That translates to mid March 2010. According to the Parson’s Advocate the test results were dated May 3 but not received by Prosecutor Mont Miller until June 3. Judge Jordan’s court order dismissing the motion was apparently made the very next day, June 4. Was the defendant's attorney advised of the lab results, given an opportunity to question them or make any representations before the court before the June 4 ruling? It doesn't appear so as Russell wasn't aware of any of this as late as mid August.

Still waiting for the DNA Results

The DNA results ordered by the Tucker County Court in November 2009 should have been returned to Judge Jordan in March 2010. Almost three months after that we still have heard nothing. This is not to say that nothing is happening. The student attorneys with the Clinical Law program at the University of West Virginia have worked hard on this case and continue to do so with a new set of students likely taking over in the fall. The Tucker County prosecutor continues to play his role of defending his original prosecution. Justice must wait in the sidelines until the timing is right. We hope that will be soon.