A judge, saying â€œI am not a racist,â€ refused Monday to step down from a pharmacist's murder case and nine other criminal cases.
Oklahoma County District Judge Ray C. Elliott ruled allegations made by the pharmacist's defense attorneys against him are baseless. He also said the pharmacist's lead defense attorney, Irven Box, failed to follow procedures to recuse a judge in the other cases.
Box said he will appeal.
Elliott, 59, is the second judge to be assigned to preside over the trial of Jerome Jay Ersland, the pharmacist who shot a robber last year. The first trial judge, Tammy Bass-LeSure, left the case Aug. 31 because of prosecutors' concerns.
Defense attorneys argued Elliott is so biased against Hispanics that he cannot be trusted to be fair to anyone. They also argued his wife, a prosecutor, improperly gave him legal research on the pharmacist's case.
The judge has acknowledged that on Aug. 30, in a moment of anger, he described roofers who damaged his home as â€œwetbacks.â€ He has explained he did not consider the remark an ethnic slur because a general contractor told him the roofers were in the country illegally.
He has denied making other racial remarks attributed to him.
â€œI regret making the one comment. I apologize for making the one comment. I am not a racist,â€ Elliott said Monday.
He also has acknowledged that on Sept. 1 he asked his wife, an assistant district attorney, for an Oklahoma Court of Criminal Appeals decision against cameras in the courtroom. He said he left his copy at home.
Elliott said Monday a judge can have personal beliefs. He said there has been no credible evidence that his personal beliefs influence his rulings in court. He said he has a pattern of being fair and consistent regardless of a defendant's race.
He specifically noted that there has been no evidence indicating any personal prejudice toward â€œthe defendant, Jerome Ersland, a white male.â€
The decision Monday was not a surprise. The judge refused Nov. 9 during a private hearing to step down. He was required to rule again after holding a public hearing.
The judge suggested Monday that Box manufactured the allegations against him for personal reasons, not because of genuine concerns about his fairness.
Box and the judge had been longtime friends. Also, Box's wife, Isla, worked until September as a deputy court clerk in the judge's courtroom.
The judge suggested the allegations were made because he directed Isla Box to tell her husband not to call her so much during work hours. The judge noted he also ruled against televising the pharmacist's trial. Box had pushed for it to be televised.
The judge pointed out Monday that Irven Box made a $500 donation in April to his re-election campaign. The judge also pointed out that Irven Box on Nov. 1 let a Hispanic drug offender â€œblind pleaâ€ to him. In a blind plea, the judge decides the punishment.
â€œNeither of these actions reflects any actual concern,â€ the judge said.
During the public hearing last week, Isla Box testified the judge on Aug. 30 also said about his roofers, â€œIf they needed somebody to hold a shotgun to their heads to get them back across the border, he'd be the first to volunteer.â€
The judge has denied making that statement. After the ruling, Irven Box told reporters the judge â€œwasn't telling the truth.â€
Irven Box told reporters another attorney came forward this weekend who is now willing to say he overheard the judge make the shotgun statement and other vile remarks about Hispanics.
Irven Box asked Elliott on Monday to let him put on more evidence. The judge refused. The Oklahoman learned the attorney is Michael S. Johnson of Oklahoma City. Johnson told The Oklahoman he would not comment.
District Attorney David Prater called the judge's ruling â€œvery legally sound.â€ The prosecutor again said defense attorneys are playing games to delay the trial. Prater called Elliott â€œtough, but fair.â€
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. Killed was Antwun â€œSpeedyâ€ Parker, 16, of Oklahoma City.
Ersland, who lives in Chickasha, has said he acted to defend himself and two female employees. Prosecutors say Ersland went too far when he fired the last five shots, in effect executing an unconscious, unarmed robber.
His attorneys have five days to appeal to Oklahoma County's chief judge. Attorneys can appeal to the Court of Criminal Appeals if the chief judge refuses to remove Elliott.