DA seeks to disqualify judge

By PATRICK FORD

Okmulgee Times Editor

 

A motion filed this week in district court seeks to disqualify a county judge.

Court records show that Okmulgee County District Attorney O.R. Barris III filed the motion on Monday to disqualify District Judge Ken Adair from hearing all cases prosecuted by the DA’s office.

Adair was elected to office in 2010 and re-elected in 2014.

The court filing came after an in-camera request was asked for and made by the district attorney on Aug. 3.

The reason for the request to disqualify was “based upon partiality, bias and/or prejudice against the Okmulgee County District Attorney’s Office and law enforcement operating in Okmulgee County.”  

The following day, Judge Adair denied the request.

It was indicated by the court that a request to recuse would have to be made on a case-by-case basis since there was no mechanism in place for a ‘global request.’

The district attorney then asked for an in camera hearing presenting a list of all criminal and civil forfeiture cases pending before the court. A petition was made to recuse or transfer the cases to another judge.

That request was also denied.

Finally, a motion for stay of proceedings was filed,  but the request was also denied.

The DA’s office then filed the Motion to Disqualify on Monday.

In the court documents,  three reasons listed for the motion:

Ground One  -  The judge, through conduct and statements on the record, has established circumstances in which the judge's impartiality might reasonably be questioned.

“Judge Adair, through conduct and statements made on the record in multiple criminal proceedings has established circumstances in which his impartiality might reasonably be questioned,” the motion states.  “As set forth specifically in this Motion, Judge Adair has made statements, findings and rulings on the record which have stated that various law enforcement officers' testimony has been untruthful and has used such findings and statements in reaching his decisions in those cases.

“Specifically, the Judge has, in the cases noted hereinafter, made statements, findings and rulings on the Record which indicate that he has determined that two different Oklahoma Highway Patrol Officers, one Oklahoma Bureau of Narcotics and Dangerous Drugs Agent, one Okmulgee Police Officer, the Office of the District Attorney of Okmulgee County and specifically the District Attorney's Chief Investigator as being involved in the presentation of false or untrue evidence to the Court. Such statements, findings and rulings indicate a pattern of statements and/or conduct which give rise to circumstances concerning the Okmulgee County District Attorney's Office and multiple law enforcement agencies in which the Judge's impartiality might reasonably be questioned,” the motion states.

The motion lists several cases as example of the claim:

CF-14-543 State v. Mario Alexander

CF-2013-501 State v. Isaac Caviness

CF-2016-75 State v. Kelly Strawn

CF-2016-18 State v. Michaelle Johnson

Ground Two  -  The judge, through rulings in on-going cases and statements made extrajudicially to members of court staff, district attorney personnel and/or law enforcement personnel, has established circumstances in which the judge's impartiality might reasonably be questioned

“Judge Adair, on various occasions, has made statements concerning pending criminal cases wherein he has expressed his lack of confidence in the truthfulness of law enforcement officers and members of the District Attorney's Office of Okmulgee County. He has also made specific findings on the record in four criminal cases that the officer involved was untruthful in his testimony,” the motion states.  “Judge Adair has also made comments and statements out of court to others which imply his suspicion of law enforcement, partiality, bias and prejudice, as listed below,” the motion states.

“On July 10, 2017, Deputy Sheriff Duston Todd was in the chambers of Judge Pandee Ramirez signing returns on search warrants. Judge Adair entered and made the statement to Deputy Todd that law enforcement will not call him for search warrants because they do not trust him,” the motion states.

“Attorney Kenneth Butler reports that Judge Adair has made comments to him about calling police officers liars from the bench,” the motion states.

“The Judge has also, on more than one occasion, made extrajudicial statements to District Attorney Office personnel that a different Okmulgee Police Officer and an Okmulgee County Sheriff Deputy have made false statements in his opinion in cases in which he was the Defense counsel. Specific references as to this information are as set forth below:” the motion states.

The motion  alleges, “Judge Adair has made comments to First Assistant Carol Iski that Okmulgee Police Officer Charles Reed is untruthful. Judge has made this comment on several different occasions. The comments centered on a case in which Officer Reed was involved and either testified or wrote in a report that the vehicle in question was driving left of center. Judge Adair claimed he refuted this information by showing the road lacked a center line. As a result, Judge Adair has repeatedly stated that Officer Reed will not look at him when they see each other. On other occasions, Judge Adair has made similar types of statements to Carol Iski claiming that former deputy sheriff Mark Dawson is a liar. He did not relate the specific instance from which he formed this opinion.” 

“Judge Adair has made numerous statements to Special Judge Pandee Ramirez regarding police officers and in his opinion, their lack of veracity. He told Judge Ramirez that he believes that the Okmulgee Police Department promotes lies, and that this problem is systemic. He has stated that he knows for a fact that officers talk about their lies in the locker rooms of the police department and call this "testilying',” the motion states.  “When Judge Ramirez questioned how he would know this, he stated his brother told him. It should be noted his brother was a Henryetta Police Officer but has not worked for that department for approximately seventeen years. Judge Ramirez reports that when she expressed her concern over his belief that he needed to 'fix' law enforcement by calling them liars from the bench, he replied that he 'had to start somewhere.' This implies to the State that the Court has some sort of an agenda, rather than maintaining a fair and impartial position as required by law and the judicial canons,” the motion states.

“Lastly, when Judge Ramirez pointed out that First Assistant Carol Iski was not an attorney that would ever promote perjured testimony, Judge Adair replied that she had "succumbed to the pressure.”

Ground Three  -  The judge in his violation of canon of judicial ethics rule 2.9 has created further circumstances in which the judge's impartiality might reasonably be questioned.

“In the case of State vs. Michealle Johnson, Okmulgee County case number CF-2016-18, and previously discussed in GROUNDS ONE AND TWO, the Judge went to the physical scene of the events involved in that case.,” the motion said. 

“The Judge did so in the midst of the hearing and did so alone. The Judge then made observations and took what he observed into account when he made his findings and rulings in that case,” the motion said.

“The Judge did these acts initially on April 6, 2017, and referred to those observations at that hearing in making findings that the testimony of Officer Fuqua was not believable and used his observations to support, at least partially, his ultimate ruling to grant the Defense Motion to Suppress.,” the motion said.

“It should be noted that the events which were the subject of this action occurred December 31, 2015 at approximately 9:00 p.m., a time in which it is dark outside. The Judge visited the scene some sixteen months later in broad daylight without the benefit of having vehicles staged in the locations as testified to by Fuqua, and without knowledge as to how much the considerable vegetation which was present in this area had changed in the interim growing seasons,” the motion states.

“Subsequent to the adverse ruling being announced and reference being made by the Judge to his observations and conclusions from his scene visit, the State filed a Motion to Re-Open the Record in this case based on the action taken by the Judge and the "facts" gathered by the Court on its own without the benefit of either counsel being present. A hearing on that Motion was held on June 5, 2017 and a record made,” the motion states.

“During that hearing, the Judge again referred to the scene visit and his conclusions from it and denied the Motion to Re-Open the Record filed by the State. In so doing, he again acknowledged that he had in fact gone to the scene alone to acquire information he subsequently used in the decision-making process in the case,” the motion states.

The motion argues that the visit  is a violation of Rule 2.9 of the Canon of Judicial Ethics, which states in pertinent part at (C):

"A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may be properly judicially noticed.

"In Comment (6) to this Rule, this prohibition of independent investigation of facts includes "all mediums, including electronic means."

“The Record in the Johnson proceeding is clear that the information obtained by the Judge outside the presence of the State and the Defendant was used by the Judge to reach his conclusions as to the lack of believability of Officer Fuqua's testimony and the ultimate disposition of the Motion being heard,” the motion states.

 Exhibit A of the filed motion shows over 190 cases that are set before Judge Adair from Aug. 9 through Jan. 31, 2018.

Several defense lawyers of Wirth Law Office, who are representing cases that are set before Judge Adair, issued a press release Monday expressing their displeasure with the district attorney’s motion.  

“I’m outraged that the DA did not get what the rulings they wanted in some of these cases and they moved to remove him because they do not like the results that he returned,”    attorney Justin Mosteller said.

Tulsa Attorney James Wirth, who also practices in Okmulgee County, pointed out that  Oklahoma courts have mechanisms to challenge a judge’s procedures and findings in individual cases.  

“If Adair impeached a witness’ credibility based on something other than evidence presented during a hearing, his finding could be challenged on appeal,” Wirth said.

Mosteller represents numerous clients with cases pending before Judge Adair, including some with jury trials set to begin in September. To change judges would cause delays and disruptions that could undermine his clients’ right to a fair and speedy trial, he said.

In Monday's filing, the DA alleged Adair’s impartiality could reasonably be questioned. Mosteller said it is the DA whose impartiality might be questioned.  Mosteller said he has observed the Okmulgee District Attorney’s Office being “overly protective” of police officers who testify in cases the DA brings to court.

“It seems to me they are trying to move to disqualify him because of his healthy skepticism of officers,” Mosteller said. “To me, that establishes his impartiality. “

Mosteller also said Adair frequently questions the credibility of defense witnesses as well.  

“He is treating officers like any other witness in his courtroom,” he said.

A District Attorney’s move to disqualify a judge from all cases brought by that District Attorney seizes the power of citizens who elected the judge in free and fair elections and places that power in the hands of a prosecutor, Mosteller concluded.

District Attorney Barris said Wednesday that due to the motion filed, there is a stay on any further proceedings until Dec. 17. Some cases may be disposed of if the state and defense meet to discuss and come to an agreement..

The motion is scheduled to be heard at 1:30 p.m. on Aug. 28 in Okmulgee County district court.

The Okmulgee Times reached out to Judge Adair, but did not receive a comment by press time.

 

 

 

 

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