Nearly 50 criminal-defense lawyers from across Texas packed into a Collin County courtroom last week as a show of support for a colleague whose law office was searched in February by police seeking evidence against the attorney's capital murder client.

The rare warrant that the Texas Rangers and the Frisco Police Department served on solo Keith Gore in his McKinney office has turned into two battles. The first involves a June 26 motion Gore and solo Steven Miears filed on behalf of client Mark Lyle Bell. The motion seeks to recuse 401st District Judge Mark Rusch, who signed the search warrant for Gore's office, because of evidence the judge allegedly has seen in Bell's case. The second is a July 17 motion the Collin County District Attorney's Office filed seeking to disqualify Gore from representing Bell, because Gore allegedly has become a fact witness in his client's case. [See the "Defendant's Amended and Second Motion to Recuse Trial Judge and Demand for Notice and an Evidentiary Hearing Before an Assigned Judge as Mandated By Law" and the "Motion to Disqualify Defense Counsel."]

On Aug. 5, defense lawyers showed up en masse in the 401st District Court for the hearing on the recusal motion. Senior Judge Gary Stephens was assigned to hear the motion.

"It's a tremendous concern regarding the government's ability to raid a lawyer's office," Rick Hagen, a partner in Denton's Jackson & Hagen who is president of the Texas Criminal Defense Lawyers Association, says in an interview. Hagen attended the recusal motion hearing Aug. 5 and filed an amicus brief on behalf of TCDLA with the 401st District Court in Texas v. Bell, arguing that the search violated the Fourth and 14th Amendments of the U.S. Constitution. "And you've got to understand this is not a case where Keith Gore is accused of any wrongdoing whatsoever."

"You don't see this," David Schulman, an Austin solo who also is on Bell's defense team, says in an interview. "I don't think anything like this has happened in this state."

But Gore had evidence that law enforcement needed for the prosecution of Bell, alleged Greg Davis, Collin County's first assistant district attorney, in an interview before the hearing.

"It was the last resort," Davis says of the search warrant. "We were concerned that the items would be destroyed or would be further concealed."

However, after spending nearly four hours in chambers with Bell's defense team and prosecutors on Aug. 5, Stephens did not rule on the recusal motion.

"I have not been assigned to determine whether or not a search warrant should have been issued." Stephens said during the hearing. "It has no effect on what I'm going to do."

Stephens announced he would rule on the recusal motion after Aug 15.

Gore declines comment.

The Warrant and Motions

According to the Feb. 29 search warrant, in February, police received a telephone call from a woman named "Shawna" who said she had accompanied Linda Bell - Mark Bell's wife - to a Collin County grand jury hearing. Shawna told police that Linda Bell stated that she had given the boots her husband allegedly wore at the time of the murder to Gore, along with letters her husband had sent her from jail, according to the search warrant. Police spoke with Linda Bell that same day, who said she had given the boots and letters to Gore, according to the search warrant. Linda Bell did not return a telephone call seeking comment before presstime on Aug. 7. Miears says Mark Bell denies the charge against him. [See the search warrant.]

The letters allegedly outlined Mark Bell's plans to escape from jail and urged his wife to retrieve items from their house that he considered evidence in the case, according to the DA's motion to disqualify Gore.

On Feb. 28, a grand jury subpoenaed Gore to testify and to produce documents and items contained within Bell's file. Gore filed a motion to quash the grand jury subpoena that same day before Judge Robert Dry of the 199th District Court in Collin County who impaneled the grand jury, according to the recusal motion.

In a conference before Dry on Feb. 28, Gore told the judge that "he would not produce the requested items even if ordered by the court to do so," as alleged in the DA's motion to disqualify.

But Gore disputes that, Schulman says, adding that Gore refused to turn over the items before a judge held a hearing on the matter.

Dry scheduled a hearing on the motion to quash for March 4.

After the Feb. 28 conference with Dry, Gore and Bonham solo Miears met with Rusch, the judge presiding over Bell's case who had appointed the two lawyers to represent Bell, according to the recusal motion. Gore and Miears advised Rusch of the grand jury subpoena and the motion-to-quash hearing, the recusal motion alleges.

On Feb. 29, law enforcement officers and representatives from the Collin County DA's office met with Rusch to ask him to authorize a search warrant for Gore's office, according to the recusal motion. Gore and Miears did not attend that meeting.

The search warrant assigned Eric Higgins, a partner in McKinney's Loughmiller ? Higgins, to serve as a court master to oversee the police officers' search for items specified in the warrant, including letters Bell allegedly sent from jail, a shoe box and a pair of men's boots. Items were to be sealed in envelopes and returned to Rusch for in camera inspection before they could be returned to law enforcement for further inspection, according to the search warrant.

Higgins did not return a telephone call seeking comment.

While police recovered letters and a shoe box, the boots were not found in the Feb. 29 search, according to the DA's motion to disqualify.

At the end of the Aug. 5 recusal hearing, the parties reached a stipulation that, if called to testify, Higgins would explain that Rusch inspected letters and unsealed a box of evidence taken from Gore's law office, among other things.

As alleged in the recusal motion, Rusch's inspection of the alleged evidence makes the judge a material witness in Bell's case, because Rusch is involved in the chain of custody. The motion also alleges the judge may be biased, because he has seen privileged attorney-client information.

The DA's motion to disqualify Gore also alleges Gore is a fact witness in Bell's case. "The state cannot call Linda Bell to testify in this case. The Texas Rules of Evidence Rule 504 (the husband-wife privilege) prohibits the state from calling defendant's wife to perform this function. Therefore, the state intends to call Gore about the source (Linda Bell) of these items, as well as any statements Linda Bell made regarding these items."

To Search or Not?

There were better ways for Rusch to handle the controversy short of signing a search warrant for Gore's office, Schulman says.

"The list is almost endless," he says. "Why didn't he just call Keith and say, 'Bring this stuff over?' Keith has also been appointed as a grand jury foreman [before]. We're not talking about someone who is untrustworthy. There is no reason to believe he would not comply with a lawful order."

And there is no reason for the DA's office to want to disqualify Gore from Bell's case, Schulman says. "I think it was just a way for them [prosecutors] to get their versions of the facts out in the press."

Hagen says TCDLA members are very interested in Bell's case. "If an accused person believes that the government is withholding information, we have no way of compelling the government to turn over that evidence unless we request a hearing. Here they [prosecutors] completely subverted the hearing process," Hagen says. "We're advocating that in these cases that the government subpoena information like this [in a way] to allow the lawyer to be heard. We have an ethical obligation to maintain and protect the integrity of evidence and to think that we would not do that is offensive."

But the situation is not as problematic as defense lawyers make it out to be, says Davis, Collin County's first assistant DA.

"The better choice would have been for Mr. Gore to turn that evidence over as soon as he came into possession of it," Davis says. "That evidence was not privileged, and he had a legal and ethical duty to turn it over. If he had done that, we would not be in the position that we are in today."

Adam Gershowitz, a law professor who teaches criminal procedure at South Texas College of Law, says Bell puts lawyers on both sides of the case in unusual positions.

"The first reaction is to say that everything is covered by the attorney-client privilege. But physical evidence of a crime is not privileged," says Gershowitz. Bell's "statements are protected. But you can't just take evidence to a lawyer and dump it."

Disagreements over how to handle evidence often boil down to the relationship the criminal-defense bar has with a prosecutor's office, he says.

"It may have been a faux pas by the DA's office to go multiple directions to get this information. It's an issue of collegiality on the one hand. We trust that lawyers are not going to destroy evidence," Gershowitz says.

"On the other hand - and this hand weighs more heavily - it's the job of the police and the DA to get evidence in a capital murder case, and they should go get it however they can lawfully get it. The process may seem unusual, but that doesn't mean it's inappropriate what the government did."

There are limits to what state judges can do when law enforcement presents them with search warrants, says Judge Sharen Wilson of Tarrant County Criminal District Court No. 1.

"When you sign a search warrant, you're bound to look at the four corners of the warrant itself and decide if there is probable cause to seize the evidence that they're seeking," she says.

"But there is no procedure in the warrant practice to call in the subject and say, 'Hey, would you want to bring this in?' And you wouldn't ask a person in a drug house, 'Hey would you bring this in?' " Wilson says.

"But the judge has the right to refuse to sign a warrant," Wilson says. "I don't know anything about the facts of this case, but under warrant law, the judge has the ability to sign or not sign a warrant."