A former pharmacist convicted of murder may have a mental disorder that affected his judgment when he fatally shot a robber, his new attorney revealed Wednesday.
The attorney, Doug Friesen, said Jerome Jay Ersland may have Asperger's syndrome.
The syndrome is a kind of pervasive developmental disorder that is similar to high-functioning autism.
Ersland, 60, is serving a life term in prison for killing the wounded robber in 2009 inside the Reliable Discount Pharmacy in south Oklahoma City. His first-degree murder conviction last year renewed a public debate about his actions.
“When you're confronted with a very unusual, startling situation, the mind immediately goes into a fugue state ... where it is impossible ... to form any kind of conscious thoughts,” Friesen said of those with Asperger's syndrome.
He said if Ersland does have the disorder “it would have been impossible for him, during the time frame here, to form the necessary intent for a first-degree murder charge.”
Friesen is working on Ersland's appeal. He has until Aug. 8 to file a legal brief with the Oklahoma Court of Criminal Appeals.
Oklahoma County District Attorney David Prater, who prosecuted Ersland, said Wednesday evening the issue was explored by Ersland's trial attorneys.
At a news conference outside the pharmacy, Friesen told reporters he will contend in the appeal that Ersland did not get a fair trial because of mistakes by the trial attorneys.
Friesen specifically complained that lead trial attorney Irven Box never checked out the possibility “at all” that Ersland had Asperger's syndrome. The attorney told reporters that Box was told within a week of being hired there was a strong possibility Ersland had the disorder.
Ersland didn't testify
The new attorney also criticized Box for not letting Ersland testify in his own defense at the trial.
The attorney told reporters Ersland “has told me that he was told that he simply wasn't going to be allowed to testify, wasn't going to be allowed to tell his story and that was a decision made by trial counsel. Well, that's a decision that is always up to the client.”
Contacted after the news conference, Box said he worked extremely hard in trying to persuade the jury Ersland was justified “in what he did.”
About Asperger's syndrome, Box said, “There were suggestions that Mr. Ersland had a lot of problems. We sought medical and professional advice in regards to this. ... We used every tool we thought was available to us to assist in his defense.”
Box acknowledged he did not want Ersland to testify at trial because Ersland had given so many different versions of what happened inside the pharmacy.
An Oklahoma County jury in May 2011 found Ersland guilty of first-degree murder for fatally shooting Antwun Parker, 16, inside the pharmacy.
Parker and a friend, Jevontai Ingram, then 14, went into the drugstore in south Oklahoma City near closing time May 19, 2009, at the urging of two men.
The men gave Ingram a gun, according to testimony in the criminal case. Parker was unarmed.
Ersland shot Parker in the head as the boy pulled on a mask inside the store, according to surveillance recordings. He then chased after Ingram, who ran outside. He then came back inside the store, got a second gun and shot Parker five more times.
Ersland admitted to the shooting but gave statements about what happened that did not match what can be seen on the surveillance recordings.
Prosecutors at his trial contended he went too far when he shot Parker again because the unarmed robber by then was unconscious from the head wound and not moving on the floor.
Box told jurors at trial that Ersland was a hero who defended two female co-workers and himself.
Jurors afterward said the recordings from the security cameras proved Ersland was not in fear of the fallen robber when he came back inside the drugstore and got the second gun.
Ersland's pharmacy license expired after he went to prison.
Box had been helping Ersland in his appeal. Ersland fired Box in April and hired Friesen, who focuses in his law practice on gun rights issues.