OKLAHOMA CITY — Is the pace of justice slowing in Oklahoma?
One Oklahoma judge believes it might be, at least in the county where he presides.
Oklahoma County District Judge Ray Elliott expressed concern about the speed at which criminal defendants are brought to trial during a hearing where he reluctantly granted a motion to postpone the blackmail and computer crimes trial of the co-founder of the Sooner Tea Party.
“I’m frustrated. I’m disappointed. I’m upset,” Elliott said while grilling attorneys for Al Gerhart, 55, about the timing of a motion they filed to postpone Gerhart’s trial. The motion was filed on Friday although jury selection was scheduled to begin for the trial on Monday.
“This is a serious case, as all cases are. It needs to be treated seriously,” Elliott told defense attorneys Mark Wilson and Brady Henderson, legal director of the American Civil Liberties Union of Oklahoma. “It’s embarrassing how many cases in this courthouse get continued.”
Elliott said procrastination and lack of preparation by attorneys is often the reason judges are repeatedly asked to postpone trial dates for the attorneys’ clients. And many defense attorneys assume that their requests will be routinely granted, the judge said.
“It’s a given without
anybody saying it,” Elliott said. “It’s an attitude that, in my opinion, needs to change.”
Wilson said the defense team had been negotiating with prosecutors to avoid the need for a trial at all but that it didn’t work out, making a delay necessary.
Elliott set a new trial date for May 5 and allowed Wilson and Henderson to withdraw from the case. The judge granted another motion naming defense attorney Kevin Adams of Tulsa as Gerhart’s new attorney.
The charges against Gerhart involve an email he allegedly sent to a state senator about legislation favored by his group, which supports conservative political candidates and causes. Gerhart has pleaded not guilty.
Gerhart has acknowledged that he sent an email to Republican Sen. Cliff Branan of Oklahoma City, chairman of the Senate Energy Committee, on March 26. Among other things, the email demanded that Branan give the House-passed legislation a hearing in his committee, “or I will make sure you regret not doing it.”
Branan testified at a preliminary hearing in September, when Gerhart’s trial date was set, that he felt threatened by the email. An affidavit of probable cause filed in the case says the email to Branan “was intended to threaten and intimidate him.”
Gerhart’s motion to delay his trial says he needed more time to obtain documents his attorneys had subpoenaed. Subpoenas issued to the state House, Senate and governor’s office request copies of emails or other communication that mention Gerhart, the Sooner Tea Party or the number of the bill that was the subject of the email.
But the subpoenas were not issued until Dec. 20, less than a month before Gerhart’s trial date, and were not actually served until Jan. 3, little more than a week before the trial date. Attorneys for the House are objecting to the subpoena because House staff was not given adequate time to retrieve the documents, and attorneys for the Senate and governor’s office have indicated they plan to ask the judge to throw out the other subpoenas.
Elliott said waiting three months after a trial date is set to issue subpoenas is not a valid reason to seek a new trial date and that it would not have been an issue if the subpoenas had been issued sooner. Wilson replied that he had been involved in plea negotiations with prosecutors on Gerhart’s behalf.
“There had been some discussion. We did not anticipate getting this far,” Wilson said. “We hoped to be able to work this case out.”
“It appears that it is not,” Elliott said. Following the hearing, First Assistant District Attorney Scott Rowland said prosecutors had made “a very fair offer” to Gerhart but provided no specifics.
Gerhart’s motion also says he would file a written waiver of his right to a speedy trial, but no waiver was prepared or signed by Gerhart prior to Friday’s hearing. Instead, Gerhart testified that he was willing to waive his speedy trial rights when Elliott questioned him under oath during the hearing.
Elliott said he expects trials to begin on the day they are set in his court and recalled that in the past serious murder cases involving possible death penalties would go to trial within nine months of when the defendant was charged.
“You can’t even get a preliminary hearing today within nine months,” the judge said. “What has changed?”
A former prosecutor, Elliott served as director of the criminal division of the Oklahoma County District Attorney’s Office before he was elected to the bench and said no one was better prepared to go to trial on a case than him.
“I expect other lawyers to be just as prepared as I was,” Elliott said.
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