Judge denies motion to remove defense attorney from murder trial

Clay Curtis

FRONT ROYAL — Circuit Judge Clifford J. Athey on Monday denied the prosecution’s motion to remove defense attorney John Bell from the Clay Marshall Curtis murder trial, upholding a ruling from a previous hearing.

Curtis, 64, is charged in the December 2014 shooting death of Front Royal cab driver Simon Funk. In a previous hearing, it had come to the court’s attention that Curtis may have confessed to the crime to another inmate Bell was also representing at the time.

Athey allowed Bell to withdraw from the other case, but not from this case, as the other inmate did not communicate that information directly to Bell but rather to a guard at Rappahannock-Shenandoah-Warren Regional Jail.

Athey said in Monday’s hearing, before jury selection in the trial began, that the commonwealth’s motion “warrants some consideration.” Athey asked Bell to state on the record that he did not learn about the alleged confession directly from the other inmate, and that he had not negotiated any deal with the prosecution on that inmate’s case with regard to testifying. Bell also stated that he did not communicate any information about the alleged confession to co-counsel, David Hensley.

Curtis was asked to state on the record that he wanted Bell to continue representing him, and that he waives any potential conflict regarding Bell during the trial.

Athey said that he did reconsider the issue but ultimately decided to deny the commonwealth’s motion to dismiss Bell from the trial. Athey also ordered that all cross-examination of the witness will be limited to Hensley.

Hensley added that he had just received a taped interview with that inmate from the prosecution that morning, and would like time to review it before trial began later that day, which the judge allowed.

After opening statements, there was argument over allowing the other inmate to testify. Deputy Commonwealth’s Attorney Bryan Layton said that Curtis had approached the other inmate’s cell, as the two were in the same pod. Curtis had allegedly come to talk about their “shared woes” dealing with relationship issues, and expressed issues involving a romantic triangle involving a woman.

Curtis allegedly passed a note to this inmate that said that he shot a man in the head and wrapped the man in a blanket. Layton described this letter as a “romantic overture” to the inmate, and that the inmate was not comfortable with receiving that letter so he brought it to the attention of a guard. The interaction between the two inmates was allegedly videotaped.

This alleged note, however, could not be retrieved by the prosecution, so Athey ruled that any reference to the note, as well as the video of their interaction which includes the note, could not be allowed as evidence in the trial.

Hensley also argued that he had not been given the jail records of the other inmate, even though he had asked for them. The records were brought over and Hensley was given time to review them before the other inmate would testify on Tuesday, the second day of trial.

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