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Former city attorney files motion to dismiss indictment

By KBell
Oct. 27, 2010 at 5:27 a.m.
Updated Oct. 29, 2010 at 5:29 a.m.

David Smith

The latest move in the perjury cases filed by District Attorney Steve Tyler is a motion to dismiss the indictment against former city attorney David Atmar Smith.

The motion was filed by Smith's attorney, Randy Schaffer, on Monday. It calls for District Judge Stephen Williams to dismiss the indictment because Department of Public Safety Sgt. John Schlinger and FBI agent Greg Coons were present during Smith's testimony to the grand jury.

Schlinger was also present during the testimony of most, if not all, of the other witness testimonies to the grand jury, according to the motion.

The Texas Code of Criminal Procedure says the only people allowed in a grand jury room are the jurors, bailiffs, attorneys representing the state, interpreters, a stenographer and witnesses being examined or when necessary to assist the state's attorney in examining witnesses or presenting evidence.

Schaffer said it will be up to the judge to determine whether Schlinger and Coons fall under that last category.

"There was no indication that they were there for that purpose," Schaffer said.

Special prosecutor Terry McDonald said he hadn't reviewed the motion, but that it's not uncommon for investigators like those mentioned in the motion to be present during grand jury trials.

"My initial reaction would be that the investigators would be assisting the state in the presentation of evidence," McDonald said.

Tyler initially accused Smith, along with Police Chief Bruce Ure, Lt. Ralph Buentello and Mayor Will Armstrong, of leaking confidential information, interfering with an official case, conspiring against him and lying under oath in 2008.

All charges were dismissed.

The charges stemmed from an investigation of former Victoria County Sheriff Michael Ratcliff, once Tyler's chief of staff.

Tyler said Wednesday night he had not yet reviewed the motion and couldn't comment.

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