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Search stops at teen's skull

The bullet in a suspect's head may link him to a shootout, but Texas police are blocked from retrieving the slug.

January 10, 2007|Miguel Bustillo | Times Staff Writer

HOUSTON — A Texas teenager has a bullet in the middle of his forehead -- and some prosecutors would love to have a look at it.

But the lawyer for the teen -- who could face life in prison if convicted of attempted capital murder for his alleged role in a burglary and shootout last year -- is refusing to allow surgeons to remove the potential evidence in the case, which is lodged 2 inches above his client's eyes.

The lawyer argues that taking out the bullet without his client's consent would violate his civil rights.

The bizarre fight over the stuck slug has raised ethical questions about whether patients can have an expectation of privacy when their bodies contain something that might help solve a crime. The case has also raised questions about how far prosecutors can search to obtain evidence.

"I think it's inappropriate that these doctors would become an arm [of] the state," said defense attorney Rife Kimler, who has succeeded thus far in persuading hospitals not to remove the bullet. "If you are a doctor, and value the rights of your patient, why would you want to be a part of this?"

Jefferson County prosecutors allege that Joshua Bush, a 17-year-old from Port Arthur in East Texas near the border with Louisiana, was one of several gang members who attempted to rob a used-car lot in July. Port Arthur police investigators concluded that Bush tried to shoot the lot's owner, Alan Olive, as the gang tried to steal his cars.

Olive is the wrong man to engage in a gunfight -- he is a competitive target shooter -- and police and prosecutors are convinced that the 9-millimeter bullet lodged in Bush's head came from Olive's gun, which would tie Bush to the scene of the crime.

Two suspects were caught at the scene, and police found bullet casings from weapons other than Olive's. Police suspected Bush was also involved because he was an acquaintance of the suspects, and when they interviewed him afterward, they noticed he had a large bump on his head. He claimed he got it from being whacked with a baseball bat in a street fight.

Several days later, Bush checked into a hospital more than an hour away in Galveston, telling doctors there that a stray bullet had struck him in the head as he was sitting on the couch in his apartment. The hospital notified Port Arthur police, who "put two and two together," police Lt. Troy LeBouef said.

"He's lucky to have a hard enough head that it stopped the bullet, because he got shot right between the eyes," LeBouef said.

Bush later admitted to taking part in the burglary, police said, and is being held in a local jail. But Kimler, who was not present at the alleged confession, contends that Bush did not admit to the burglary, and also maintains that he was not involved in any shooting.

Prosecutors disagree, and plan to charge Bush with attempted capital murder -- a felony that carries a potential 99-year prison sentence in Texas.

Kimler offered this week to allow prosecutors to remove the bullet -- if they agreed not to pursue the attempted capital murder charges and also picked up Bush's medical costs. Prosecutors declined to discuss the case Friday but said they were debating Kimler's offer.

Kimler has been fighting search warrants obtained by police to extract the bullet. It is sitting just underneath Bush's skin, and both the prosecution and defense initially agreed that removing it would not threaten his life. But Kimler now contends that surgeons say there could be some risk in removing the bullet because bone has grown around it.

Finding a hospital willing to perform the extraction has proved difficult, in part because Kimler has warned attorneys for the medical institutions that they could be exposing themselves to lawsuits.

After a judge granted a search warrant in October to remove the bullet from Bush's head, police immediately took the suspect to a hospital for an emergency procedure, angering his family. But a Beaumont surgeon concluded that removing the bullet was more complex than first thought and decided not to proceed. Kimler claimed the hospital then sent the bill to Bush's mother.

A judge granted a second warrant, and the operation was scheduled to take place last month in a University of Texas hospital in Galveston. But that hospital later decided not to take part in the operation. The search warrants have now expired.

Though he has done all he could to stop the bullet from being removed, Kimler argued that it would probably not incriminate Bush anyway. He declined to elaborate.

"You think I'd be dumb enough to offer to let them take that bullet out if I thought it might connect him to something?" the lawyer argued.

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miguel.bustillo@latimes.com

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