Former pharmacist Jerome Jay Ersland has lost his first appeal of his murder conviction.
The Oklahoma Court of Criminal Appeals on Thursday unanimously rejected all of his complaints. Ersland will appeal next to Oklahoma City federal court.
Ersland, 61, is serving a life sentence for fatally shooting a teenage robber inside the Reliable Discount Pharmacy in south Oklahoma City on May 19, 2009. An Oklahoma County jury convicted him at a trial in 2011 of first-degree murder.
“Well, I guess the only shot then is federal court,” his appeals attorney, Doug Friesen, said. “I’m surprised … I still believe in the stuff I put down there … I think it’s a significantly longer shot now, significantly.”
The appeals court did reverse the first-degree murder conviction of one of the two longtime felons accused of planning the robbery.
In a 3-2 opinion, the appeals court on Thursday ordered a new trial for Emanuel D. “E Man” Mitchell, 35, because he was not allowed to represent himself. In a separate opinion, the appeals court upheld the first-degree murder conviction of his cousin, Anthony D. “Black” Morrison, 47.
The two men recruited Antwun “Speedy” Parker, 16, and Jevontai Ingram, then 14, to rob the drugstore, according to testimony at their trial. Morrison gave Ingram a gun and Mitchell waited outside in a stolen getaway car, according to the testimony.
Inside the drugstore, Ersland shot Parker in the head, knocking Parker to the floor. Surveillance videos show he then chased after a fleeing Ingram, came back inside the drugstore, got a second gun and shot Parker five more times.
The case sparked a national debate. Ersland claimed he was defending himself and two female co-workers, but prosecutors said he went too far.
The appeals court found the evidence presented at trial was sufficient to support the murder conviction.
“We conclude the physical and forensic evidence showed that, when Ersland returned to the pharmacy and shot Parker five times in the body, Parker was unarmed and unconscious but alive, and did not pose a threat to Ersland or anyone else in the pharmacy,” the judges wrote in the 39-page opinion.
“Evidence further showed that, in order to shoot Parker, Ersland stepped across Parker’s body, turned his back, went behind the counter, put down his empty revolver, opened a drawer, took out the Kel Tec, walked to where Parker lay on the floor, stood over him, and fired five shots almost straight down into Parker’s body, close together and in rapid succession. Ersland did not appear flustered or hurried, and acted in a deliberative manner,” they wrote.
Ersland’s chief complaint in his appeal was that his lead trial attorney, Irven Box, was inept and made mistakes that cost him a fair trial. The appeals court, though, wrote: “A painstaking review of the entire record shows that trial counsel zealously represented Ersland.”
Box said Thursday, “I’m glad that the Court of Criminal Appeals recognized how hard we worked in trying to defend Jerome.”
The appeals attorney, Friesen, revealed last year that Ersland may have Asperger’s syndrome, a developmental disorder. The attorney said then the disorder would have clouded Ersland’s judgment at the time of the robbery.
The appeals court wrote: “Ersland completely fails to explain how a diagnosis of … Asperger’s syndrome would be relevant to the issue of whether he intentionally shot and killed Parker.”
Ersland’s pharmacist license expired after he went to prison. His supporters have gathered thousands of signatures on petitions calling his conviction an outrage. He told The Oklahoman in 2011 he had a “lot of hope” Gov. Mary Fallin will pardon him.
His chances at a pardon were damaged in February when he was charged with possession of contraband in prison. A guard reported Ersland was caught with a powerful pain reliever. The felony case is pending.
Oklahoma County District Attorney David Prater said Thursday he was pleased with the decisions on Ersland’s and Morrison’s appeals. He said prosecutors stand ready to retry Mitchell.
Mitchell is charged under Oklahoma’s felony murder law, which allows a robber to be convicted of first-degree murder if an accomplice dies during the crime.
Mitchell was serving life in prison plus 45 more years. If convicted again, he could end up with a longer sentence.
Mitchell had clashed with his court-appointed attorney. He twice asked before trial to be appointed a different attorney.
On the second day of trial, during jury selection, Mitchell asked to represent himself. District Judge Kenneth Watson refused.
In Thursday’s opinion, three of the appeals court judges found Watson erred. Two of the appeals court judges concluded Watson handled the request appropriately.
One of the dissenting judges wrote Mitchell had lost his right to defend himself “by his disruptive, disorderly and obstructionist misconduct.”
As the end of the 2011 trial, Mitchell leapt from a chair in the courtroom and punched Prater in the face in front of the jury. The two fell to the floor where Prater and sheriff’s deputies subdued Mitchell.