(Update: On Oct. 22, Judge Richard Ogden approved an amended application authorizing the collection of signatures for the impaneling of a grand jury. The article below remains in its original form.)
Oklahoma County Judge Richard Ogden today quashed five citizens’ application to pursue an initiative petition for convening a grand jury to investigate allegations of abuse of power by District Attorney David Prater.
Ogden wrote that the citizens’ application “does not contain reasonably specific identification of areas to be inquired into” and that its allegations “are actions inherent to D.A. Prater’s prosecutorial functions.” Petitioners have two days to amend their application and refile.
Originally filed Oct. 6 by five local activists, the application was supposed to be approved or denied within four days, according to state statute. But Oklahoma County Presiding District Judge Ray Elliott said Oct. 14 that he was not formally notified of the filing.
Once he read the application Oct. 13, Elliott said he decided to recuse from the matter for reasons that “should be obvious.” Elliott’s wife, Sandra, is a former Oklahoma County assistant district attorney who prosecuted death-row inmate Julius Jones for the 1999 murder of Edmond father Paul Howell. Applicants alleged in their filing that Prater has been improperly targeting Jones and his supporters by publicly challenging those who believe Jones is innocent and alleging bias on behalf of Pardon and Parole Board members.
Consideration of the citizens’ grand jury application then fell to Ogden, who was appointed to the bench in 2017 by Gov. Mary Fallin.
“The petition on its face does not contain reasonably specific identification of areas to be inquired into or sufficient general allegations to warrant a finding that such an inquiry may lead to information which, if true, would warrant a true bill of indictment or action for removal,” Ogden wrote in his order quashing the application.
Ogden’s language mirrored the statutory guideline for approving such a grand jury application. Ogden then wrote that the court “hereby quashes the petition for the following deficiencies:
A. All alleged actions by D.A. Prater in the petition, even if taken as true, are actions inherent to D.A. Prater’s prosecutorial functions and therefore subject to sovereign immunity as well as the prerequisites of the Oklahoma Governmental Tort Claims Act.
B. The authority cited by the petitioners in the petition to remove D.A. Prater does not apply to him as D.A. Prater is an elected official.
C. The federal authority cited in the petition, “18 U.S.C. §241,” “18 U.S.C. §242, and “18 U.S.C. §245” and the allegations referenced in the sections of petition related to the federal authority, even if taken as true, are not jurisdictionally within the powers of an Oklahoma County grand jury to indict and charge D.A. Prater with federal crimes.
D. The state statutes cited in the petition, “21 O.S. §421”, “21 O.S. §455”, and “21 O.S. §551”, provide no remedy for the petition’s infirmity and inability to overcome the sovereign immunity and prosecutorial immunity defense or the pre-requisites of the Oklahoma Governmental Tort Claims Act as all actions alleged in the petition were inherent to the prosecutorial functions of the office of District Attorney for Oklahoma County.
The five citizens who filed the application are Oklahoma City Pride Alliance President Hannah Royce, activist Jess Eddy, NAACP chapter President Garland Pruitt, Freedom Oklahoma executive director Nicole McAfee and ACLU Oklahoma executive director Tamya Cox-Touré.
“We appreciate Judge Ogden giving the petitioners a timely order,” Eddy told NonDoc. “We are reviewing Judge Ogden’s order, and the petitioners will respond more fully as soon as possible.”
Under state statute, the petitioners “have two days to amend 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 days stating whether the face of the amended petition contains the requirements set forth in this section,” the statute reads. “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.”
Had the citizen-requested grand jury application been approved, applicants would have had 45 days to collect 5,000 valid signatures from Oklahoma County voters. Because the grand jury would have been investigating the district attorney, the judge overseeing the body would have appointed a special prosecutor.
Prater declined to comment on Ogden’s order Tuesday. Ogden’s full order can be viewed here.
Prater’s own grand jury scheduled to start in November
Prater’s office, meanwhile, selected citizens for its own Oklahoma County grand jury Monday. According to Nolan Clay of The Oklahoman, the grand jury is scheduled to meet Nov. 2-4, Nov. 16-18 and Dec. 14-16. Per Clay’s report:
Assistant District Attorney Charles Rogers told grand jurors on Monday they will need to be fair but tough-minded. He also said the investigation could last into next year.
Prater requested the grand jury to examine the administration of the Oklahoma County Jail and the erroneous re-docketing of multiple incarcerated people by the state Pardon and Parole Board. Once impaneled, a grand jury is not limited in the scope of alleged public corruption that it can be asked to investigate.
Supreme Court denies Prater request to disqualify Luck, Doyle
Earlier Tuesday, the Oklahoma Supreme Court unanimously denied Prater’s application to have Pardon and Parole Board members Adam Luck and Kelly Doyle disqualified from participating in the Oct. 26 clemency hearing for Julius Jones.
Asked to comment on the Supreme Court’s denial, Prater referenced a similar pending request from Oklahoma Attorney General John O’Connor.
“The attorney general has a disqualification motion pending before the Supreme Court regarding Adam Luck and Kelly Doyle, so I don’t believe it appropriate to comment,” Prater said in an emailed statement. “In our case, the Supreme Court did not file an opinion with the dismissal. Therefore, I do not know the court’s reasoning; nor will I speculate.”