Elliott declined to comment Thursday.
Johnson, 43, is a criminal defense attorney in Oklahoma City. He won an acquittal in 2009 for a former Oklahoma County detention officer blamed in a federal criminal case for an inmate's death.
Johnson said the judge criticized the roofers Aug. 30 during a conversation in the judge's outer office. He said he had asked if the judge had any hail damage and if it had been fixed. Johnson was representing a murder defendant whose trial was set to begin that morning before Elliott. The trial ended up being postponed because the air conditioning had not been turned on and the courtroom was too hot.
Johnson said he did not hear the judge say “wetback.” He said Elliott appeared to be “very angry” about his courtroom being hot and the shoddy workmanship on his roof.
District Attorney David Prater said he checked with his prosecutors who were around Elliott the morning of Aug. 30. He said he also checked with the judge's bailiff and court reporter. He said they did not hear the judge say anything like what Johnson is claiming.
Prater also said the affidavit “is completely unreliable in my mind.” The prosecutor said Johnson has made conflicting statements about where in the courthouse the judge spoke.
Ersland, 59, was charged with first-degree murder after he shot a masked robber six times in May 2009 inside Reliable Discount Pharmacy in south Oklahoma City.
Ersland, who lives in Chickasha, has said he acted to defend himself and two female co-workers. Prosecutors say Ersland went too far when he fired the last five shots, in effect executing an unconscious, unarmed robber.
Prosecutors say Elliott is fair. They wrote in a court brief: “Judges, as imperfect people, are permitted to have and voice opinions, even controversial ones … this alone is not grounds for disqualification … unless and until it can reasonably be said to call into question his … impartiality in a specific case.”