A judge is not expected to give a pharmacist convicted of murder any time off his life term.
“Why should a judge put himself in the position of being a 13th juror when we have entrusted 12 citizens of the community to make that decision?” the judge said last month at a sentencing in another murder case.
“Why should a judge usurp the jury's authority by placing him or herself in the position of being the 13th juror?” Oklahoma County District Judge Ray C. Elliott said.
Jurors in May chose the life term as the punishment for pharmacist Jerome Jay Ersland, 59, of Chickasha. Their only other option was a life term without the possibility of parole.
Jurors found Ersland guilty of first-degree murder for shooting a wounded, unarmed robber five more times inside a south Oklahoma City pharmacy in 2009. They rejected Ersland's self-defense claim.
Under the law, the judge has the discretion to suspend all or part of Ersland's life term. Formal sentencing for Ersland is set for July 11.
In the other murder case, Elliott indicated his philosophy is not to show leniency on punishment when a defendant chooses to have a jury trial.
The judge said he was quoting what “a brilliant trial lawyer,” the late Barry Albert, said to him years ago. He said Albert was writing a law review article titled, “The 13th Juror.”
The judge pointed out that a defendant can have the judge alone determine punishment by pleading guilty or by asking for a nonjury trial.
The judge rejected a defense attorney's request to suspend part of a 71-year-old convicted murderer's life term.
“I choose not to be the 13th juror,” the judge said at the sentencing in June.
In a telephone interview June 3 from jail, Ersland told The Oklahoman he does not expect the judge to show him leniency.
He said then he believes Elliott would give him a death sentence if the judge could.
“I don't have any faith in him at all,” Ersland said.
Ersland chose not to cooperate in the preparation of a presentence report ordered by the judge.
“Mr. Ersland refused to speak with this officer without his attorney present,” a Corrections Department employee wrote about a June 3 contact with Ersland in the jail. “Mr. Ersland's words were mumbled and inarticulate. He stepped away from this officer shaking his head.”
Ersland will not be eligible for parole for 38 years if ordered to serve the life term.
The pharmacist's supporters say they hope Gov. Mary Fallin eventually will free Ersland by commuting his life term or pardoning him.
Many have signed petitions that state “our Justice System has let us down.”
An organizer of the support effort, Karen Monahan, said she will take petitions signed by more than 20,000 people to the governor's office at noon Thursday.
Some Oklahoma County judges have cut time off life terms in murder cases. Last week, District Judge Jerry Bass ruled a Mustang man should go to prison for only 35 years of his life term.
Bass said he was showing mercy to Morgan Cline, 21, because of the young man's mental illness. “It takes a lot of courage as a judge to do that,” said Cline's attorney, John Coyle. “He has a terrific sense of justice. … It is unusual.”
A jury in May found Cline guilty of first-degree murder for fatally shooting his father in bed at the oilman's Oklahoma City home. Cline had sought to be acquitted on an insanity ground.