Web Posted: 05/13/2008 10:28 PM CDT
By Zeke MacCormack
BOERNE — Kendall County Court-at-Law Judge Bill Palmer on Tuesday stood by his decision to make available grand jury testimony about the 2003 death of Air Force Col. Philip Shue for use in a lawsuit.
The litigants, USAA Life Insurance Co. and Shue's widow, Tracy, sought access to tapes of grand jury witnesses for use as evidence in their dispute, which goes to trial June 9.
Grand jury proceedings are done in secret, and the release was opposed by District Attorney Bruce Curry, whose lawyer said an appeal was likely after Palmer's refusal to vacate his April 21 order for Curry to hand over the recordings.
Shue, 54, died when his car crashed into a tree beside Interstate 10 on April 16, 2003, in Kendall County.
Then-Justice of the Peace Nancy White ruled it a suicide, as did military investigators and the medical examiner.
Tracy Shue contends her husband fell victim to foul play after leaving home that morning for work as a psychiatrist at Wilford Hall Medical Center. His nipples had been cut off, and duct tape was on his ankles and wrists.
Her lawsuit says USAA should have investigated and canceled a $500,000 policy on Shue's life from 1999, when he first told the insurer that his ex-wife — the policy's beneficiary — was possibly plotting his demise.
USAA denies liability, saying it advised Shue to contact law enforcement authorities.
An attorney for Shue's ex-wife, Nancy Shue, has said she had no role in the death.
Representing District Attorney Curry at Tuesday's hearing, Assistant Attorney General Angela Goodwin told Judge Palmer that only state District Judge Steve Ables, who convened the grand jury, could clear the release of its tapes.
A release, she said, could have “a chilling effect” on the candor of witnesses at other grand juries and hinder any future investigation of Shue's death, should one occur.
Goodwin said those seeking the tapes hadn't met the legal threshold of showing “a particularized need,” noting the witnesses are alive and available to testify at the lawsuit trial.
But Jason Davis, Tracy Shue's lawyer, said time's passage has dimmed the memories of former Bexar County Medical Examiner Vincent DiMaio and law officers who testified to the grand jury.
“This will be a means to both refresh their memory and impeach,” he said of the tapes.
Davis called the grand jury review of Shue's death “kind of a sham,” asserting investigators asked Curry to delay presenting the case so they could gather more facts and that information subsequently surfaced that contradicted evidence grand jurors heard.
He said trial jurors should hear the evidence behind the grand jury's Nov. 24, 2003, finding that it saw no evidence of criminal activity in Shue's death, which USAA likely will cite in its defense of the lawsuit.
“We know that incomplete testimony was given to the grand jury,” Davis said. “We suspect inaccurate testimony.”
Curry wasn't at the hearing and later declined comment.
--submitted by Tracy Shue