Oklahoma County District Court Presiding Judge Ray Elliott recused himself this morning from considering the application for a citizen-called grand jury to investigate District Attorney David Prater. Elliott’s recusal is the first action taken on the application — filed Oct. 6 by five local activists — but it comes two days after state statute says the judge should have approved or denied the request.
Elliott said his office missed the statutory deadline because no one alerted them to the filing and that they only learned of it Wednesday afternoon.
“I had no official notice of the existence of it until 4:15 yesterday,” Elliott told NonDoc this morning, acknowledging that state statute required action on the application four days after its filing — Tuesday, Oct. 12. “You’re right, it does say that. But obviously, again, there has got to be some common sense applied there. Because there are probably thousands of things filed every day in the court clerk’s office.”
The judge’s statement sat poorly with the activists seeking to impanel the investigative body to search for evidence that Prater has abused his power.
“Given the urgency of the matter at hand, petitioners hoped that not only would the court adhere to the statutory timeline, but that the request would be met with the same urgency offered by Judge Elliott to District Attorney David Prater,” said Freedom Oklahoma executive director Nicole McAfee.
Prater’s office is scheduled to begin the process of seating his own Oklahoma County grand jury Monday. While Prater declined to comment today on the citizen-led petition for a grand jury to investigate him, he did confirm that he hand-delivered a file-stamped copy of his application to Elliott the day he filed it, Sept. 29.
Elliott approved Prater’s application for a grand jury and has assigned District Judge Don Andrews to oversee the investigative body.
In his request, Prater wrote that he intends to investigate — among other public entities — the Oklahoma County Criminal Justice Authority and the state Pardon and Parole Board, with which Prater has clashed over the erroneous re-docketing of at least two people previously denied commutation and the case of death-row inmate Julius Jones, who was convicted in the 1999 murder of Edmond insurance agent Paul Howell.
Jones’ case is of particular interest to McAfee, activist Jess Eddy and others who applied for the citizen-led grand jury. Applicants argue that Prater is attempting to intimidate Pardon and Parole Board members into upholding Jones’ death sentence. Jones and a myriad of local and high-profile national activists argue he was wrongfully convicted, postulating other theories of the crime and purported alibis.
Prater and the Howell family argue that Jones lost his formal appeals of his conviction and that court documents and investigative records disprove Jones’ claim of innocence.
Jones’ supporters say Prater is racist and that he is acting improperly in asserting that Jones is guilty and alleging that Pardon and Parole Board members have conflicts of interest.
“He is targeting Julius Jones because he is targeting Julius Jones’ community base of supporters,” Eddy said Oct. 6 during a press conference announcing the application.
Prater said in a statement after the Oct. 6 press conference that he will not be intimidated by the threat of a grand jury investigation.
“I will never cease advocating for justice in every case that I am responsible for. That is my duty and I will continue to be aggressive in the pursuit of justice,” Prater said Oct. 6. “I am proud to advocate for the Paul Howell family and all innocent victims and families who have been targeted by brutal killers like Julius Jones. I will not be intimidated by any person or group of people threatening me with a grand jury. I am never afraid of the truth. Those who advocate for these coldblooded killers can’t say the same. ”
Jones was prosecuted by then-Oklahoma County Assistant District Attorney Sandy Elliott, who is married to Judge Elliott. The judge told NonDoc he decided to recuse on the citizen application for a grand jury after reading it Wednesday night.
“After reading it last evening, I entered an order this morning recusing,” Ray Elliott said. “It should be obvious, but officially I can’t and don’t have to give a reason why I recused. But it should be very obvious.”
Elliott said Oklahoma County court rules require lawyers to notify judges when they file a motion before them, but he said he did not know whether a lawyer was involved in filing the citizen application for a grand jury.
“The court rules say when a lawyer files a motion, they’re supposed to serve the court. Now, again, I don’t think a lawyer actually filed this,” Elliott said. “But, again, using common sense — no judge, me or any judge — would have any way of knowing what is filed without being served a notice.”
Elliott said “some young man” called his office around noon Wednesday inquiring into the grand jury application. Elliott said his office thought the man was referring to Prater’s grand jury and directed him to Andrews’ office. The man called back, Elliott said, and clarified that he was asking about a second grand jury application.
Around 4:15 p.m., Elliott said, Eddy delivered a copy of the application to his office.
Title 38, Section 102 lays out the timeline for consideration of the citizen-petition application:
Within four (4) days, excluding Saturdays, Sundays and holidays, following the initial filing of any petition calling for the impaneling of a grand jury, the presiding district judge shall enter an order stating whether the face of the petition contains a reasonably specific identification of areas to be inquired into and sufficient general allegations to warrant a finding that such inquiry may lead to information which, if true, would warrant a true bill of indictment or action for removal. An order determining such petition to be deficient shall quash said petition, and shall set forth clearly in writing each and every deficiency found by said judge. Petitioners shall have two (2) days to amend the petition to conform to the district judge’s order. Upon the filing of said amended petition, the district judge shall enter an order within two (2) days stating whether the face of the amended petition contains the requirements set forth in this section. Any such order quashing an amended petition shall be appealable when entered. An order determining such petition or amended petition to be sufficient shall not be appealable.
Title 38, Section 101 specifies the threshold for approval of an application:
Any such petition, upon its face, shall state the subject matter or matters of the prospective grand jury and shall state a reasonably specific identification of areas to be inquired into and sufficient general allegations to warrant a finding that such inquiry may lead to information which, if true, would warrant a true bill of indictment or action for removal of a particular public official.
If the citizen-requested grand jury application is approved, applicants will have 45 days to collect 5,000 valid signatures from Oklahoma County voters. Because the grand jury would be investigating Prater, the judge overseeing the body would appoint a special prosecutor.