Published: January 07, 2008 09:09 am         

'Tainted Situation'

Prosecutor asked to step aside

CUMBERLAND - An Oakland attorney acting on behalf of a dead man's family has asked the Garrett County state's attorney to step down from an ongoing murder case, citing his belief that the facts create "a tainted situation" and "a possible ethical problem."

Tom Dabney has not only asked State's Attorney Lisa Thayer Welch to step down, but in a Nov. 20 letter he requested the Office of the State Prosecutor to "impanel a grand jury to examine the facts and circumstances concerning the official conduct of ... Welch" and others involved in State v. Rush. The case involves the 2006 death of a former Garrett County resident who was killed at the home of a co-worker and friend near Friendsville.

Dabney has also recommended the Maryland State Police Homicide Unit open an investigation into 29-year-old David Lancaster's killing, because of "the very glaring conflict of the (Garrett County) sheriff supervising the only investigator who works for him and his close relationship to the shooter."

Dabney represents the victim's mother, Bertha Hale-Cooper, in her pursuit to "get justice for David." Hale-Cooper has filed a notification of intent with Garrett County Circuit Court to sue Thayer Welch and Sheriff Gary Berkebile for violation of civil rights and wrongful conduct in her son's death. Berkebile is a brother-in-law of Norris Rush, 52, the man facing second-degree murder charges in the Dec. 3, 2006, death of Lancaster.

Lead investigator Lt. J.D. Murphy said state police have been involved in the investigation since it began Dec. 3. "Evidence taken from the scene itself was collected by the Maryland State Police crime lab (technicians)" just a few hours after the shooting, he said.

"They normally transport that to the crime lab, where analyses are being done on different things," Murphy added. "I don't think we have any physical evidence whatsoever in this case, here at the office."

Murphy, who is with the Garrett Bureau of Investigation, said "the gun, the knife, everything that was collected at the scene itself was collected by ... their crime scene technicians, and it has been taken to the lab for analysis."

At the time of the slaying, GBI was composed of officers from both state police and the sheriff's office. The two state police officers were reassigned to other divisions as part of a restructuring decision last fall.

Murphy said other evidence from the crime scene, such as the clothing Lancaster was wearing when he was shot, was originally taken to the sheriff's office and packaged for preservation. "The victim was brought up here and we packaged it so that it can be taken to the crime lab for analysis." When the lab requested it, that evidence was sent, he added.

In addition to their involvement with evidence, Murphy said within two or three days of the shooting, "two officers from the Maryland State Police homicide unit met with me ... for two hours, in which I went over the complete investigation that I had done to that point, just ... to see if there's something I needed to do that wasn't being done ... They were satisfied with our investigation ... They didn't have any problem with what we did," he said.

Dabney has told the Times-News that Thayer Welch also failed to charge Rush with murder right away, and jeopardized the case by telling Lancaster's family the same day of the shooting that it occurred in self-defense.

In a Jan. 4 interview with the Times-News, Thayer Welch was asked about her communication with Lancaster's family when she met them at the McHenry state police barrack Dec. 3. Thayer Welch did not deny she told the family the shooting was an act of self-defense, or that two bullets from the handgun were not recovered because the kitchen was too dirty to find them.

"In the course of the investigation, I talk to all kinds of people ... family, too," Thayer Welch said.

"She said the kitchen was too dirty to find them, so they stopped looking," Lancaster's stepfather, Michael Hale-Cooper, said the state's attorney told them.

When asked if she believed her office has handled the case improperly, Thayer Welch replied, "This is a pending case and I'm obligated not to talk about it."

Murphy said he wasn't happy with how long it took Thayer Welch to file charges against Rush, but added, "it is her determination when to file, what to file."

"Officers charge every day, but when it comes down to ... a possible homicide case, we don't just go out and lock people up based on just our belief," Murphy said. "We always get the state's attorney involved, because she's the one that's gonna have to do the prosecution," he said. "So we always bounce ideas off of her ... and there's a point when she says, 'Yes, it's time to file charges,' then we file the charges."

After taking a statement from Rush the day of the killing, Murphy said Thayer Welch told him there was not probable cause to charge Rush. "At that time, the state's attorney had indicated she was not going to file charges," he said, adding that he was "under the impression" Thayer Welch was going to present the case to the grand jury in late February or March.

Dabney also faults the state's attorney because she "failed to exercise independent judgment in the face of otherwise overwhelming evidence." Thayer Welch also "announced to the victim's family it was a self-defense case," he wrote in a May 4, 2007, letter to the Federal Bureau of Investigation, asking the agency to investigate what he believes is a case of public corruption.

In addition, Dabney said Thayer Welch presented the case to a March 2007 grand jury, while it was still being investigated, which resulted in the grand jury's failure to return an indictment against Rush. "Why would you present a matter to the grand jury if it required further investigation?" Dabney wrote.

Finally, Dabney said Thayer Welch waited nearly a year before filing murder charges against Rush, and then she dropped those charges to second-degree murder - without telling Lancaster's family.

"We were supposed to have the papers filed by Dec. 3 for the first-degree (murder charge). When the charging papers came out on Nov. 29 ... when (Thayer Welch) finally filed the case from district to circuit (court), (Bertha) found out on the phone when they were reading it in the computer from the lawyer's office," Amber White, a close family friend, said.

It was purely by accident that Hale-Cooper even learned Rush was facing a lesser charge, which happened only because Dabney's paralegal was checking on some information for Hale-Cooper at the time, White added.

Under the Criminal Procedure Code, Maryland law requires a law enforcement officer or district court commissioner to give the victim or his representative a copy of a pamphlet explaining what rights a victim has.

That law also requires the state's attorney's office to provide a crime victim (or a victim's representative) with notification of their rights "within 10 days after the filing or the unsealing of an indictment or information in circuit court, whichever is later."

Thayer Welch filed a Bill of Information that resulted in the first-degree murder charges in circuit court Oct. 11, yet Hale-Cooper said she didn't receive anything from the state's attorney until Dec. 13, nearly two months later. That's when the Crime Victim Notification Request arrived in her mailbox - but by then Thayer Welch had already reduced the charges from first to second degree.

Court documents reflect the charges were amended to second degree Nov. 29, when the case was moved from district to circuit court.

"Nobody gave me anything," Hale-Cooper said. "Nobody explained anything to me at all."

Lancaster's family members said they are concerned with what they believe are errors by officials involved in the case, but care little about the reason for them. "From our standpoint it doesn't make any difference. If it interferes with ... getting justice for David," Michael Hale-Cooper said.

A plea hearing involving the charges of second-degree murder, reckless endangerment and using a handgun to commit a felony will be held Tuesday at 9:30 a.m. in Garrett County Circuit Court.

In spite of Dabney's requests for help from state and federal officials, both the FBI and Robert Rohrbaugh, the state prosecutor, have declined to get involved. "Based on the information which you provided and, considering the limited jurisdiction and resources of this office, we do not intend to initiate any investigation," Rohrbaugh wrote in a Dec. 11 letter.

Citing the continuing investigation, "FBI policy has been to let the local jurisdiction complete their investigation before initiating a preliminary case," William Chase, FBI special agent in charge, wrote in an April 26 letter to Dabney.

Contact Daleen Berry at dberry@times-news.com.