Prosecutor Rocky Holmes addresses court as Judge David
Nibert dismisses murder charge against Thomas Husk
Judge David W. Nibert dismissed a 2nd degree murder charge against Thomas Lee Husk Tuesday morning, based on errors apparently made by Calhoun prosecutor Rocky Holmes during a grand jury presentment in March, 2011.
Husk had been charged with the shooting of John Dale Cyrus in June, 2011. The case was to go to trial before a jury Tuesday, with 41 potential jurors being called for selection.
Nibert reviewed the issues with all parties involved in his chambers prior to issuing his order, reviewing the grand jury transcript.
Nibert (right) said that the release order for Husk was to be in effect immediately, but could be refiled because the case was dismissed without prejudice.
Sources said the case would likely be brought back.
At issue was the late delivery of the Grand Jury transcript to Husk's attorney John Oshoway, just late last week. Judge Nibert said the delay was because of illness issues with the recording clerk.
Nibert called Holmes statements to the Grand Jury, "A serious matter, but not purposefully done."
He indicated the prosecutor gave "instructions to the Grand Jury," were not appropriate or in violation of statues.
Additionally, defense attorney John Oshoway said the grand jury presentment indicated an egregious miscarriage, because Prosecutor Holmes or the State Police failed to tell the grand jurors that John Cyrus had chased Husk and his family in a car from Arnoldsburg to Sugar Camp (near Big Bend) about 25 miles, before he chased Husk up a dead-end road where Husk shot Cyrus.
Oshoway called it "willful mispresentation...giving a false impression," to the grand jurors.
Oshoway also said statements given indicated Cyrus did not have a weapon, "when in fact he had a knife in a sheath on his person," and another knife was found on the ground.
Calhoun prosecutor Rocky Holmes told the Parkersburg News that Cyrus' death appeared to be premeditated, while Husk's defense attorney Oshoway said it was clearly a case of self defense.
Numbers of bloggers on regional newspaper and TV sites following the shooting defended Husk, indicating it was a 'stand your ground' case.
Thomas Husk (left) accused of murdering John Cyrus (right)
Prosecutor Holmes told the Parkersburg News that Husk made statements that implied he was planning to kill Cyrus. He also said an eyewitness saw the two men wrestling for the gun before Cyrus was shot.
The prosecutor told the paper there was a lack of physical evidence to support the claim that Husk was punched in the head by Cyrus several times.
Attorney Oshoway also raised an issue of lost transcripts of one or more witnesses by the State Police, saying the agency reported the transcripts had been lost when a computer crashed.
The shooting appeared to be linked to ill-feelings between the men after Cyrus' wife divorced him in 2005, she then began dating Husk, creating a negative climate between the men, allegedly involving Cyrus' children or grandchildren.
UPDATE: CALHOUN MAN MURDERED AFTER CHASE TO DEAD-END HOLLOW - Husk Charged With 2nd Degree Murder
HEARING SET FOR HUSK THURSDAY - Memorial Will Be Held For Cyrus
JOHN DALE CYRUS VICTIM OF CALHOUN SHOOTING - Complaint Describes Encounter, Husk Charged With 2nd Degree Murder
HUSK WAIVES PRELIMINARY HEARING - Murder Case Sent To Grand Jury, Placed On Home Confinement, "Clearly A Case Of Self Defense," Says Attorney
CALHOUN PROSECUTOR SAYS CYRUS MURDER APPEARS PREMEDITATED - Husk Made Statements Implying He Planned To Kill Cyrus, Says Holmes