The Oklahoma Court of Criminal Appeals is being asked to reject a former pharmacist's complaints about his lead trial attorney.
Jerome Jay Ersland, 61, claims he was convicted of first-degree murder in 2011 because attorney Irven Box made a series of mistakes.
Ersland is serving a life sentence for fatally shooting a wounded robber at a south Oklahoma City drugstore in 2009.
He is asking the appeals court to overturn his conviction on grounds Box was ineffective.
“It is all too easy to Monday morning quarterback months or years after the trial and attempt to pick apart defense counsel's trial strategy,” Assistant Attorney General Donald Self wrote in a response that argued all of Ersland's complaints have no merit.
“The defendant was represented by four experienced attorneys,” Self told the appeals court in a legal brief filed Oct. 31.
“Trial counsel faced an uphill battle considering the overwhelming evidence of the defendant's guilt ... The video recording of the shooting — along with the forensic evidence that showed the victim was never a threat to the defendant or anyone else after the victim was shot in the head — provided overwhelming evidence of the defendant's guilt.”
Ersland said at a hearing in 2010 he was “quite well pleased” with his defense attorneys and usually met with them once a week, Self also told the appeals court.
“It is not surprising that the defendant, like most defendants, is unhappy with his trial counsel after being convicted. That does not, however, show that trial counsel was ineffective,” Self argued.
One of Ersland's key complaints is that Box refused to let him testify at trial in his own defense.
Ersland stated in an affidavit on Sept. 26, “Irven Box never discussed with me or gave me the option to testify at trial. He simply told me I would not be testifying.”
In the response, the assistant attorney general called the complaint “simply untrue.”
Self said the trial judge asked Ersland in detail about testifying and that Ersland responded he had discussed the issue with his attorneys and decided not to testify and that no one had forced him not to testify.
“The defendant is a well-educated man,” Self wrote. “There was no question that he understood his right to testify.”
Self also wrote that prosecutors would have completely impeached Ersland at trial with his many conflicting statements about the shooting.
“The defendant would no doubt now be claiming trial counsel was ineffective for allowing him to testify if he had in fact testified,” Self wrote in the state's response.
In surveillance recordings admitted as evidence at trial, then-pharmacist Jerome Jay Ersland can be seen shooting the unarmed robber, Antwun Parker, 16, in the head inside the Reliable Discount Pharmacy. Ersland then chases away another robber, comes back inside the store, gets a second gun and shoots Parker five more times. Jurors at trial rejected his self-defense claim. Ersland's pharmacist license expired after he went to prison last year.