Copyright Â© 2009 McALESTER — The 4-year-old girl who told her family and investigators she was sexually assaulted by David Harold Earls said he gave her ice cream and excused her from taking naps afterward. But the girl’s statements and evidence that she and her brother had injuries consistent with child sexual abuse wasn’t enough to take to trial, attorneys said. Earls, 64, pleaded no contest on May 13 to charges of rape and forcible sodomy of the girl, an agreement reached by prosecutors and his defense attorney. He was sentenced to a year in prison with 19 years suspended. Because the judge took into consideration time already served, Earls is scheduled to be released Sept. 24 from the Pittsburg County jail. The girl’s grandmother called law enforcement in September after the girl said Earls sexually abused her, court records show. Her 5-year-old brother told his grandmother he’d witnessed Earls touch his sister in appropriately. He said Earls had told him to do the same to his sister. "What he did to my grandchildren shouldn’t have been done to the meanest dog in town,” the children’s grandmother said Friday. Child abuse examiners testified in the preliminary hearing that both children had injuries. The children’s grandmother said her family hoped Earls would have received more jail time, but agreed with the sentence to spare the children any more trauma. "We were over a barrel because of the children’s inability to testify with any consistency,” the grandmother said. "One minute they would be OK with testifying, and the next minute they would want to play or be crying to get out of the courtroom.” She said her daughter and the children have moved out of state. "Their mother wants them to just move on,” the grandmother said. Earls declined to be interviewed on the advice of his attorney, Tim Mills. The sentence spurred a national uproar when Fox network’s "The O’Reilly Factor” broadcast segments criticizing everyone involved in the case, in particular District Judge Thomas Bartheld and Pittsburg County District Attorney J.B. Miller, whose assistant district attorneys tried the case. The children’s mother said Friday that she doesn’t blame the judge or the attorneys in the case for its outcome. She said she doesn’t think Bartheld deserves to be reprimanded. She said it became apparent her children were not capable of testifying. Each time they were questioned about the abuse, the children had behavioral problems. "For my children this was the best deal,” the mother said.
Victim as a witnessMills said those questioning the outcome don’t understand the legal system or the evidence code. "At first glance it started to be a strong case for the prosecution, but after they got the forensic report they found out it wasn’t as strong as they thought,” Mills said. He said a main witness for the prosecution, the girl’s 5-year-old brother, recanted earlier statements made to a social worker. When interviewed by a social worker, he became upset upon seeing anatomical drawings of boys. He then said he didn’t recall being touched and refused to talk any further when asked if he’d been made to do anything inappropriate, records show. Mills said the case was nearly ready for trial when the girl’s competency to testify was questioned. In a hearing to qualify the child as a witness, Bartheld tried as many as five times to administer the oath, he said. "She (the girl) was all over the courtroom,” Mills said. "But at no time was there any evidence she was distracted by my client.” Mills said the judge stopped the hearing but offered to allow the prosecution an opportunity to try again. He said on the eve of the trial both sides worked out an agreement. Mills said Earls has always maintained his innocence.
Prosecution’s burdenMiller echoed some of Mills’ observations but disagreed on the issue of Earl’s innocence. "There is not a question of what happened here, but there is a question of a 5-year-old being able to say that to a jury, even over closed-circuit TV. We protected these kids. We didn’t put them through any more trauma.” Assistant district attorneys worked on the case, but Miller said he would have handled it the same way. Further complicating the case was a lack of physical evidence. Injuries to the children were consistent with abuse, but there was nothing to link it to Earls. Miller said the attorneys knew they couldn’t prove their case beyond a reasonable doubt. "So if we take this to court and we lose, how do you tell a 5-year-old that it was because the jury didn’t believe her?” he said. They struck a deal, one which proved unpopular. State Attorney General Drew Edmondson’s office is investigating avenues that may get Earls more prison time or possible action against the judge, said Charlie Price, spokesman for the attorney general. Rep. Mike Reynolds, R-Oklahoma City, and Rep. Mike Ritz, R-Broken Arrow, sent a letter Thursday to the state Supreme Court requesting it get involved. They did it because neither Gov. Brad Henry nor Edmondson have, he said. Their request will not be official until it’s approved by the Legislature when it reconvenes in February. Bartheld told The Oklahoman last week he is surprised by the efforts. "The district attorney, child’s family, advocates and the defendant all agreed to this,” he said. The Oklahoma District Attorneys Council does not keep any statistics about how often judges reject plea deals, but assistant executive coordinator Trent Baggett said it doesn’t happen often.
Speaking outIn a court affidavit, Earls told investigators that he would baby-sit the girl and her brother on occasion at their mother’s home. Earls said he slept with the girl and allowed other neighborhood girls to sleep with him, as well. He admitted to investigators it was probably a bad idea and described himself as a "grandpa-type” figure. His daughter, Denise Earls, who is now 38, said her father is anything but. Denise Earls claims she was raped by him when she was a child and went public with her story last week in The Oklahoman. Denise Earls said she faxed Edmondson a detailed statement of the sexual assault Monday, but has had no response.
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Earls’ prior convictions1983: Received a five-year suspended sentence in Pushmataha County for shooting with intent to kill. 1992: Convicted in Pushmataha County for second-degree burglary. He was sentenced to five years in prison. 1996: Convicted of assault with a deadly weapon in Hughes County. There he stabbed a woman in the stomach with a pocket knife. He was sentenced to 20 years in prison but was released in 2003 for medical reasons.
AT A GLANCE
• Bartheld, 51, became an associate district judge in Pittsburg County in 1995. He won 61 percent of the vote. →Weeks after being sworn in, Bartheld presided over the placement hearing of Ryan Luke, the toddler whose death has since paved the way for more stringent child abuse laws. Bartheld granted custody of Ryan to his grandfather, Don Luke, while his mother and her boyfriend were under investigation for child abuse. Ryan died from injuries suffered after his grandfather returned him to the boy’s mother. →A 1995 case of Bartheld’s was overturned in 2009 by the 10th Circuit Court of Appeals. Judges ruled that a death row inmate, Charles Taylor, did not get a fair trial because of errors made by Bartheld and attorneys in the case. The Denver-based appellate judges called Bartheld’s instructions to jurors "legally defective” and determined that the instruction had an injurious effect on the jurors’ verdict. →In 2005, Gov. Brad Henry named Bartheld as the district judge in the 18th Judicial District that includes Pittsburg and McIntosh counties.
Miller, 49, worked in private practice as an attorney before being appointed as district attorney. He earned a bachelor’s degree in business management from the University of Oklahoma in 1982 and received his law degree from Oklahoma City University in 1989. 2002: Appointed by Gov. Frank Keating to fill vacated District 18 district attorney seat. Lost in the general election to Democrat Chris Wilson, 63 percent to 37 percent. 2006: Wilson left for a position with the U.S attorney for the Eastern District of Oklahoma. Gov. Brad Henry appointed Miller district attorney. Miller filed as a Democrat for the general election. His rival, George Burnett, was found by the state Election Board to not be a qualified resident, leaving Miller unopposed. 2009: In May, Miller testified before a state grand jury over allegations he improperly subpoenaed records from the Internet site McAlester Watercooler. Miller declined comment on the investigation, but previously told The Oklahoman he thought posts made to the site were criminally libelous.