By Ben Lane, TSB Staff
David Russell’s trial may be over, but his legal battle is far from complete. The convicted sex offender and former McKinney chiropractor has filed a motion for appeal of his convictions as well as a motion for a new trial.
In the motion for a new trial, Russell’s attorney, Rafael De La Garza, claims that the prosecutors withheld vital evidence from Russell’s defense council during the trial.
The motion claims that if this evidence had come to light during the trial, it may have led to an innocent verdict in all of the counts against Russell. Therefore, Russell is requesting all of the guilty verdicts against him be thrown out and a new trial be granted.
During Russell’s trial, one of his named victims testified that she had seen Russell for treatment due to injuries sustained in a car accident in 2005. The timeline of these events was a point of serious contention during the woman’s testimony.
She stated that she saw Russell perhaps as many as 20 times in 2005. At issue during the trial was whether there was actually record of those visits or not.
Her medical file, seized by the McKinney Police when they served the search warrant of Russell’s office and discussed at length during the trial, did not show record of any of the woman’s visits in 2005. It was during this time that she says much of Russell’s abuse of her took place, but the records from Russell’s office showed no such thing.
Under cross-examination from Russell’s attorney Todd Shapiro, the woman suggested that the records might have been tampered with. Russell’s office manager Valerie Anderson later testified that it’s possible that the car accident file may have been kept separately from the woman’s main file.
Russell’s motion for a new trial, obtained by TownSquareBuzz.com, states that during the trial the prosecutors reached out to Judge Lance Baxter, of County Court at Law Number 3. According the court documents, Baxter served as the legal representation for the woman during 2005 in the aftermath of her car accident.
According the Baxter’s affidavit, also obtained by TSB, Baxter states that he represented the woman in her claims against the insurance company of the person who caused her accident. Russell’s motion for a new trial states that the prosecutors reached out to Baxter to try to obtain the woman’s medical records from the 2005 car accident to corroborate the timeline of events and prove that she saw Russell for treatment during that time.
Baxter’s affidavit states that he was not able to provide the woman’s medical records but did provide the prosecutors with a copy of a letter that he sent to the insurance company of the person who caused the accident. The letter that Baxter sent, also obtained by TSB, requests payment from the insurance company for the medical bills and other bills as a result of the accident.
There is no mention of the woman having been treated by David Russell in that letter. Russell’s attorney is now claiming that the lack of Russell’s name in the letter and the absence of conclusive medical records prove that the woman did not see Russell during the time of the alleged offenses.
According to Russell’s motion for a new trial, Baxter provided all of this information to the prosecution during Russell’s trial. The motion claims prosecutorial misconduct was committed when they prosecutors did not provide this information to the defense during the trial. Shapiro’s affidavit, also obtained by TSB, states that he was not made aware of Baxter’s letter until after the trial when he happened to be speaking with Baxter and Baxter mentioned the letter to him in a casual conversation.
Russell’s motion states “the prosecutorial misconduct by failing to disclose the exculpatory evidence in this case was to such a degree that it tainted the entire trial process and thus, constitutes structural or fundamental error that is not subject to a harm analysis. The State’s failure to disclose the evidence undermines confidence in the jury’s verdict.”
The motion goes on to say that if the evidence had been provided to the defense, they would have been able to prove that the woman did not see Russell during the time of the alleged offense and that evidence “would make a difference between conviction and acquittal.”
Therefore, Russell is requesting that all of the guilty verdicts be thrown out and that he is granted a new trial.
The motion is currently under consideration by Judge John Roach, Jr.