Pharmacist Jerome Jay Ersland is asking a judge to kick Oklahoma County District Attorney David Prater off his murder case.
Ersland's defense attorneys contended Friday that Prater has made this prosecution personal and has acted unethically. In a legal motion, the attorneys described Prater as "a man driven by a desire to have a conviction at any cost; not justice."
They also claim Prater has an emotional personal stake in the outcome.
"Both Mr. Ersland and the public have a right to a prosecutor who is guided by principles of justice and an appropriate ethical compass, not one blinded by the media spotlight and his own animosity," the attorneys wrote.
The attorneys are asking that Prater and all his assistants be disqualified.
Prater told The Oklahoman, "This case is no different to me than any other."
The district attorney also said the disqualification request "is void of any truthful allegations or applicable law."
Ersland, 58, 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 "Speedy" Parker, 16, of Oklahoma City.
Ersland 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 robber who was no longer a threat.
The murder trial is set for Dec. 6.
District Judge Ray Elliott will hear the request, probably this month. The trial might be delayed — however the judge rules.
Defense attorneys can appeal if the judge rules against disqualification. The attorney general would have to pick a replacement to handle the trial if the judge agreed to the disqualification.
The defense attorneys specifically criticize Prater for making public a video of the shooting when he announced he was filing charges. They contend Prater violated rules of professional conduct.
The case attracted national attention because of the release of the video from surveillance cameras at the pharmacy.
The recording shows two robbers coming inside the store. One, later identified as Jevontai Ingram, points a gun as Parker pulls on a ski mask. The pharmacist shoots Parker in the head and chases Ingram out of the store. Parker falls to the floor. The pharmacist then returns to the store, gets a second gun and shoots Parker five more times.
Defense attorneys contended: "There was no legitimate purpose for the release of the video other than to stir public sentiment against Mr. Ersland. The release of the video did nothing to further the administration of justice."
Ersland is being defended by Irven Box and three other attorneys. Box declined further comment Friday.
Prater said Friday that he was justified in releasing the video. The district attorney said he had to explain to the public that they have a right to defend themselves but that there is a line they can't cross if there is no longer an imminent threat. He said the video release had a legitimate law enforcement purpose.
Defense attorneys also criticized prosecutors' efforts to remove the original trial judge from the case. They complain they were not allowed to participate in prosecutors' initial meetings with that judge.
District Judge Tammy Bass-LeSure took herself off the case Aug. 31.
Prosecutors were upset with Bass-LeSure after learning she had in July given the names of three attorneys to a gym trainer with a pending drug case assigned to her. One of the names was Joe Brett Reynolds, one of the pharmacist's attorneys.
In their request, defense attorneys also questioned why it took so long for prosecutors to ask Bass-LeSure to quit the case. The attorneys said prosecutors first learned of a problem on July 12 then confirmed it July 22 when prosecutors had the trainer secretly record a meeting with the judge.
Defense attorneys suggested — but did not directly allege — that prosecutors waited until Elliott was next in line to get a murder case. Elliott is a former prosecutor who has a reputation for toughness.
Prater said he did not know who would get the case if Bass-LeSure stepped aside. The district attorney also said he acted against Bass-LeSure when he did because he had to complete an investigation.
The other robber inside the pharmacy, Ingram, pleaded guilty in January to first-degree murder for Parker's death. Ingram, now 16, is being held in a juvenile detention center.
In a related development Friday, District Judge Kenneth Watson refused to dismiss a first-degree murder charge against a man accused of coercing the two teenagers into doing the robbery.
Anthony D. Morrison, 44, is charged under Oklahoma's felony murder law, which allows a robber to be charged with murder if an accomplice dies during the crime. His attorneys argued the robbery was over by the time the pharmacist fired the fatal shots so the felony murder law does not apply.
Watson, though, ruled Morrison is properly charged. The judge said he feels the felony murder law is overly broad but it is up to the Legislature or Oklahoma Court of Criminal Appeals to correct it.