The pharmacist's trial is set to begin Dec. 6.
Ersland, 59, was charged with first-degree murder after he shot a masked robber six times in May 2009 inside the 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 he went too far when he fired the last five shots, in effect executing an unconscious, unarmed robber who was no longer a threat.
Box disclosed in Friday's legal brief he personally heard some of the judge's remarks. He wrote that he approached the judge two weeks ago about the issues. Box wrote that the judge said â€œâ€˜Wetbacks' is just another word for illegal aliens and that he really didn't have anything against Mexicans, just illegal aliens.â€
Box also wrote the judge has often done mocking imitations of Hispanic laborers who have done work on the judge's properties.
Box suggested in the legal brief that the judge tried to head off the removal effort by ruling in his favor on two criminal cases involving a Hispanic defendant.
Box wrote that another defense attorney, who has raised campaign funds for the judge, showed up at his office to talk about the judge's ethnic comments. Box wrote that the attorney, Ron Wallace, told him not to worry about the Hispanic defendant's cases and that the judge would take care of it. He wrote Wallace later called from the judge's chambers and told him the cases were â€œtaken care of.â€
Elliott plans to meet with prosecutors and defense attorneys Monday to schedule a hearing on the defense request for him to step down.
If he refuses to quit the case at that hearing, the pharmacist can ask Oklahoma County's chief judge to remove Elliott. If the chief judges rules against removal, the pharmacist then can ask the Oklahoma Court of Criminal Appeals.
The removal effort is likely to result in a delay in the trial.
Elliott took over Aug. 31 after the first trial judge, Tammy Bass-LeSure, took herself off the case because prosecutors said she couldn't be fair.