Tulsa Attorney BlogOkmulgee District Attorney Wants Judge Disqualified

Alleges Judge Adair Biased Against Law Enforcement

Okmulgee County District Court If an Oklahoma prosecutor does not like voters’ choice of county judge, should a higher court second-guess voters’ choice?

An unusual motion to disqualify Okmulgee County District Judge Ken Adair from cases prosecuted by the Okmulgee County District Attorney’s office suggests one prosecutor thinks so. According to District Attorney O.R. Barris III’s Aug. 7, 2017 filing, Oklahoma courts should find somebody different to hear criminal cases.

Of course, the DA’s dislike for Judge Adair is more than a personality difference. Barris’ motion claims Adair should be disqualified because Adair said cops sometimes lie in court.

Specifically, Barris said Adair should be disqualified from all criminal cases because at various times the judge “stated that law enforcement officers’ testimony has been untruthful and has used such findings and statements in reaching decisions in those cases.”

Never mind that a court’s purpose is to determine the truth of a matter. Never mind that Lady Justice wears a blindfold so as to not be swayed by wealth, power or status. Never mind that police officers’ courtroom embellishments are so widespread, or at least so widely suspected, there is a word for it – they call it testilying.

Police perjury is not just the stuff of television drama. Google the terms “police perjury research.” You will find a wealth of academic research exploring the extent of police dishonesty in court.

DA Does Not Claim Cops Were Truthful

The Okmulgee District Attorney does not allege, however, that Judge Adair thinks cops always lie. Nor does the motion claim that police have always been truthful in court.

The motion to disqualify cites four specific circumstances over four years in which Adair found officers’ testimony to be embellished or untruthful. Yet in none of the cases does the DA’s motion claim the law enforcement testimony in question was entirely truthful.

In one instance, an officer saw a vehicle pull up alongside a parked vehicle on a dead-end street then, about 30 seconds later, back out. The officer assumed the driver interacted with someone in the parked vehicle then testified the driver in fact had an “encounter” with someone in the parked vehicle.

“It was clear that he was trying to exaggerate or embellish what he though he saw to justify his stop,’ Adair ruled.

In that case, Adair went beyond questioning the officer from the bench while the prosecutor directed testimony. Adair went to the location himself. We would agree, there could be a problem with that. But the remedy would be to seek appellate review in that case.

Following that ex parte judicial investigation, further controversy emerged surrounding whether additional witnesses could be called to address issues raised by the judge’s site visit. Those witnesses testimony was excluded. Again, the DA could appeal that ruling.

The gist of that case appears to involve whether, as a pretext to investigate a suspected drug deal, an officer stopped a driver for not staying in a lane. The judge’s visit addressed whether the roadway was too narrow for anyone to reasonably stay in a single lane.

Does Procedural Error Imply Bias?

If the site visit in fact violated a rule of judicial conduct, however, the rule is not the rule against bias. It would be a different rule – a procedural rule against independent judicial investigations.

Beyond the four cases in which the judge challenged police officers’ testimony in 2014 through 2017, the DA offers two other grounds on which he says Adair should be disqualified to hear criminal cases.

The third alleged basis for disqualification is more or less a restatement of the complaint that Adair visited the scene of a traffic stop to gather information to be used in his decision in a particular case. The motion alleges the visit violated rules of judicial conduct.

Oklahoma Canon of Judicial Ethics states that “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.”

To be fair, if the shoe were on the other foot, we might complain about that. Cases should be tried in court, based on evidence the parties present in court. We would question though – as we anticipate Judge Adair will – whether his ex parte site visit in one case is evidence of general bias toward police officers. His independent investigation could have as well vindicated the officer he had called dishonest based on courtroom testimony.

Does Judge’s Former Job Imply Bias?

The more likely basis for the DA’s perception of a biased judge comes out in the DA’s second alleged grounds for judicial disqualification. Judge Adair allegedly made several statements to various police officers and courthouse staff betraying a belief that cops sometimes lie in court. Some of those alleged statements involve police testimony Adair confronted as an attorney, before he was a judge.

Here’s the real catch. Judge Kenneth Adair was a criminal defense attorney before he was a judge. In one case, then-defense-attorney Adair refuted a cop’s testimony that a vehicle was driving left of the center line by showing the road did not have a center line. Then, after he was elected as judge, he allegedly talked with an assistant district attorney about his prior experience confronting police perjury.

It stands to reason a prosecutor would be wary of a former defense attorney now serving as a judge. It is far more common, at least nationwide, for prosecutors to move into judicial positions. According to Burris’ Motion to Disqualify, Adair has acknowledged — in the presence of another judge — he has not won the wholehearted trust of law enforcement officers.

Burris says Adair commented to a deputy sheriff – in the office of a different judge – that police officers do not trust him as a source for search warrants. Of course, noting that someone suspects bias is different than expressing a deeply held bias.

Do Private Conversations Among Judges Imply Bias?

Okmulgee County Judge Ken AdairThe only allegation in the DA’s motion that suggests systemic bias involve Adair’s alleged comments to Special Judge Pandee Rameriz. The DA alleges Adair told Rameriz he believes the Okmulgee police department promotes lies, and that officers talk among themselves in police locker rooms about “testilying.”

According to Burris’ filing, when Ramirez expressed concern about Adair’s perception that cops lie in court, he said he “had to start somewhere.” His starting place, Burris said, was to call out cops from the bench when they lied in court.

“This implies to the State that the court has some sort of agenda, rather than maintaining a fair and impartial position as required by law and the judicial canons,” Burris wrote.

It implies to us the court has an agenda, too, but not in the same way the upbraided Okmulgee District Attorney claims. It implies to us the court has an agenda to promote truthful testimony in court. It implies a court views all witnesses through the same blinder – without prejudice arising from a badge or uniform. A lie is a lie. If a cop’s testimony is not consistent, it is no less a lie than when a thief or drug dealer offers inconsistent testimony.

And if a judge calls out cops from the bench for lying, it comes as no surprise to us. It would not be the first time we have seen a judge admonish a witness. We sometimes see losing parties admonished from the bench for their poor excuses.

We would not expect anyone to seek a judge’s removal for talking to another judge about the nature and purpose of judicial admonishments. We expect judges to maintain a bias against perjury and to make that proper judicial bias known in their courtroom.

Adair Stays All Criminal Cases – For Now

UPDATE:

On Aug. 9, 2017, Judge Adair rescinded an order issued the previous day that reassigned all of his criminal cases to another judge.

The subsequent order stayed (stopped further activity in) all criminal cases on his docket until Dec. 13, 2017 “or until order of this Court,” pending resolution on the Motion to Disqualify.

For now, Judge Adair has stayed all criminal motions and proceedings pending on his dockets. He reassigned his cases to Associate Judge Cynthia Pickering pending a three-day hearing on the Motion to Disqualify, set for Aug. 28, 29 and 31, 2017

We consider it unfortunate that a district attorney would resort to such brash methods to confront a judge who does not rule in his favor. A better approach would be to prepare law enforcement witnesses to testify accurately, without embellishing facts to paint conclusions.

That is any attorney’s proper role – to prepare witnesses so they adhere to a court’s strict rules. An attorney can offer conclusions in arguments – before or after testimony and evidence inform the court as to factual circumstances.

The bottom line is the people of Okmulgee County elected a former Okmulgee criminal defense attorney as a judge. We can presume voters did so fully informed and aware of the candidate’s experience and qualifications. We can speculate that Okmulgee voters elected someone from the defense side to balance support for law enforcement with a need to keep law enforcement honest.

Free Consultation: Oklahoma Defense Attorney

If a police officer or other State witnesses have lied or drawn conclusions beyond those supported by facts in a case your are involved with, we want to know about it. For a free confidential consultation with an Oklahoma criminal defense attorney call Wirth Law Office at 918-879-1681.

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