Legal roundup: Phil Albert release sped up, ‘chicken legs’ conviction affirmed, Greer County deputy charged

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Criminal justice can be a dirty business, and sometimes it spurs civil litigation.

Late Friday, an Oklahoma appellate court decision was released in a notable Open Records Act case. No, it was not NonDoc v. OU about the Jones Day reports. However, the recent recusal from a justice in that case could indicate a circulating opinion about whether District Court Judge Michael Tupper properly granted OU summary judgment last December.

If you keep reading this legal roundup, however, you’ll learn which open records case has been revived on appeal, and you’ll find peculiar criminal cases ruled upon by the 10th Circuit Court at the federal level. Speaking of criminal cases, 68 minutes of body camera footage embedded below offers the painful plight of a seemingly intoxicated deputy sheriff who had the right to remain silent but didn’t have the ability.

Former OU regent, state business leader prepares to leave prison

Phil Albert, the former Tulsa business leader, top political donor and University of Oklahoma regent, has seen his 30-month federal prison term whittled to less than 20 months and is preparing for a December release despite making only a handful of restitution payments to the family whose business he bilked for millions.

Albert, who pleaded guilty to evading $1 million in federal income tax on $2.6 million he took from Pelco Structural between 2014 and 2019, has apparently received multiple sentence or term reductions since entering prison in May 2024. With no motions or orders regarding Albert’s prison sentence filed in federal court, however, it’s not immediately clear how or why he would be released early, although factors like credit for good behavior and medical conditions can allow wardens and U.S. Bureau of Prisons officials to make some decisions outside of court.

Steve Parduhn, who called Albert “a sycophant and a liar of pathological proportion” in his victim impact statement, learned of Albert’s sentence reductions through a BOP notification program. Baffled by the former chief executive’s scant restitution payments and impending release, Parduhn said the situation “doesn’t seem quite right.”

“Phil Albert’s early release from federal prison is disappointing,” Parduhn said. “Like we have mentioned, family members were prevented from reading their victim impact statements aloud at Albert’s sentencing, but they were submitted to the court and summarize our thoughts and feelings.”

When he was sentenced by U.S. District Court Judge Terence Kern in March 2024, Albert was ordered to pay a combined restitution to Pelco and the IRS of $3.6 million. But according to court documents and correspondence provided by the Parduhn family, Albert only began making monthly payments of about $25 to Pelco in February 2025. A court document filed this fall notes only about $11,000 of the $3.6 million in ordered restitution has been paid. Correspondence with federal prosecutors indicates that former Pelco accountant Don Eagleton, whose plea agreement laid out much of the publicly known details of Albert’s embezzlement scheme, has provided the bulk of the payments so far.

In an effort to secure additional restitution from Albert, U.S. Department of Justice attorneys filed a motion in September to garnish a long-term disability insurance policy Albert holds with Guardian Life Insurance Company of America. A magistrate judge recommended that garnishment of the policy be granted, and Albert did not file an objection by an Oct. 20 deadline.

While his restitution obligations have languished, Albert relinquished ownership of a $400,000 Tulsa home by deeding it to his wife, Joan Albert. The transfer occurred about two weeks after Albert was sentenced and about a month before he entered prison. Joan Albert is the sister of the late David Chernicky, an oil magnate who helped pioneer hydraulic fracturing with his company, New Dominion LLC, for which Phil Albert served as a vice president.

Albert’s time with New Dominion and Pelco Structural overlapped his rise to prominence in Oklahoma. He served as chairman of the Tulsa Regional Chamber of Commerce in 2017, one year after Gov. Mary Fallin appointed him to the OU Board of Regents. During that time, he stood as one of the state’s most prolific donors to political campaigns. According to records from the Oklahoma Ethics Commission, Albert donated more than $105,000 to candidates and committees from Jan. 1, 2014, through Dec. 31, 2018.

Albert’s attorney, Paul DeMuro, told Kern at the March 2024 sentencing hearing that Albert was facing severe medical complications from diabetes and Parkinson’s disease, and the former state business leader was transferred to the BOP’s Federal Medical Center in Fort Worth after he began his incarceration.

Still, between the insurance policy and the Tulsa home, the Parduhn family believes Albert has assets that are not being used to make his court-ordered restitution payments. In his victim impact statement, Steve Parduhn said forensic accounting indicated that Albert perpetrated a “theft” of at least $10 million.

“I want to move on, but I also would like to get paid some of that, because he did wrong. They took a narrow window and convicted him on that. But the window is a lot bigger than that,” Parduhn said. “There’s no real consideration for victims. Everybody is worried about something else. But the victims are still out there.”

10th Circuit allows civil suit against Bartlesville officers to continue

Bartlesville Police Department officers William Lewis and Jessica Pitts are not entitled to qualified immunity in a civil rights lawsuit brought by the estate of Thomas Gay, the 10th Circuit Court of Appeals said by affirming a ruling from the U.S. District Court for the Northern District of Oklahoma. Gay was shocked with a Taser by Lewis and fatally shot by Pitts within four minutes of their response to a 911 call asking that Gay be removed from his father’s house.

When reviewing motions for summary judgement based on qualified immunity, courts assume conflicting facts in favor of the nonmoving party to determine if a reasonable jury could find for the plaintiff. The district court determined Gay’s estate alleged violations of his civil rights which were not protected by qualified immunity and described the the facts facing a potential jury.

On June 1, 2019, Pitts and Lewis responded to a 911 call from Gay’s father. When they arrived, he told them Gay was “unarmed,” “behaving erratically” and “may have been under the influence of drugs.” He requested help removing his son from the house. Upon entering the house, officers noticed Gay was “sweating profusely and bug-eyed” and ordered him to drop a ventriloquist doll he was holding, according to the opinion.

“At about the same time, Officer Lewis pointed his Taser at [Gay]. Without any further commands, Officer Lewis tased [Gay],” Senior Judge William P. Johnson wrote in the district court’s order. “And Officer Pitts unholstered and drew her service weapon.”

After being tased, Gay walked into a bedroom and started to lie on the ground before standing back up. Lewis tased Gay again and tried to grab him. After Gay pushed Lewis away and tried to move toward the door, Pitts shot him twice.

On appeal, the 10th Circuit found the officers were not entitled to qualified immunity for their alleged use of excessive force. Specifically, the court found:

• Lewis’ tasing violated the “clearly established” rule that “the use of a Taser without warning on a non-resisting misdemeanant violates the Fourth Amendment’s excessive force protections” by “repeatedly applying a Taser without warning, despite the fact that [Gay] was not resisting the officers and had not been advised that he was being detained”; and
• Pitts’ shooting violated the “clearly established” rule that “shooting a suspected misdemeanant who was moving but not holding a weapon and who did not pose an immediate threat violates the Fourth Amendment.”

The 10th Circuit’s ruling, written by Judge Scott Matheson, did not find Pitts, Lewis or the City of Bartlesville liable for Gay’s killing, but it does allow the case to continue to trial in the district court. While no video footage of the shooting exists because Bartlesville police were not equipped with body-worn cameras in 2019, The Frontier reported extensive details of Gay’s shooting that year.

‘Chicken legs’ insult in Choctaw does not allow heat of passion defense

The 10th Circuit Court of Appeals upheld the conviction of Isaac Sockey for the murder of Thurdis Tubby, finding a jury instruction that “‘words alone’ cannot ‘negate malice aforethought and create heat of passion'” was not “legally incorrect.” Sockey, a Choctaw Nation citizen, had argued the jury instruction given in the U.S. District Court for the Eastern District of Oklahoma had improperly influenced the jury.

Sockey admitted to killing Tubby, but he argued the killing was done in the heat of passion and therefore meant he was guilty of manslaughter instead of murder. In September 2023, Sockey was living in a home in Tahlequah with four other people, including Tubby. On Sept. 8, the roommates had spent the night drinking, and when Sockey went to bed one roommate called him “chicken legs” and a “crybaby.” After Sockey went to his room, the roommate who called Sockey “chicken legs” asked Tubby how to say the phrase in the Choctaw language.

Court records do not provide the Choctaw translation, but the language’s online dictionary indicates it is “aka̱ka hanali.” After calling Sockey by the term, Tubby began to riff and call Sockey various other names in Choctaw. Court records say that, five to 10 minutes later, Sockey emerged from his room with a knife, “held the knife to Mr. Tubby’s neck and told him to ‘keep talking crap, keep talking trash’ and to ‘say it again.'”

The two men struggled over the knife, and Sockey stabbed Tubby in the “head, neck, and shoulder,” and then called 911 to report himself. Tubby was pronounced dead at the hospital. Sockey was charged with murder, convicted and sentenced to life in prison.

The appellate court disagreed with Sockey’s claim that the jury instruction had been inappropriate.

“We agree with the government that name-calling has never been enough to justify a reasonable person losing self-control thereby permitting a heat of passion defense,” Judge Paul Kelly wrote for the three-judge panel.

While the court found the jury instruction did not influence Sockey’s case, the courts dicta did hint there may be a narrow circumstance where “words alone” may lead to a heat of passion defense.

“Mr. Sockey accurately identifies a nuance in the ‘words alone’ doctrine. There may be some situations in which words alone can be sufficient to negate malice aforethought — for example ‘a reasonable man may be provoked upon suddenly being told of his wife’s infidelity,” Kelly wrote. “This statement captures a modern development in heat of passion law, which is that although mere ‘insults’ or ‘abusive’ words are never sufficient on their own to provoke heat of passion, words that convey information of an actual fact or injury may be sufficient.”

10th Circuit upholds Johnson’s sentence for masturbation case

The 10th Circuit Court of Appeals affirmed the sentence of prisoner Jonathan Johnson in the U.S. District Court for the Western District of Oklahoma for indecent expose. Johnson was convicted for intentionally masturbating in front of a female guard and sentenced to three years in prison, but he appealed by arguing the sentence was too high and that the lower court improperly admitted reports of four prior incidents where he had been reported for publicly masturbating by prison authorities.

The court disagreed, upholding Johnson’s sentence and the admission of the reports.

“Johnson contends the evidence was inadmissible under Federal Rules of Evidence 404(b), 403, and 803(6). As for his sentence, Johnson argues that the district court committed procedural error by misapplying 18 U.S.C. Section 3553(a)(6), since it failed to consider that most states cap indecent-exposure offenses at one year,” Judge Timothy Tymkovich wrote for the three-judge panel. “We disagree.”

Johnson was charged with indecent exposure for an incident at the Federal Transfer Center in Oklahoma City in April 2023 where he used his cell’s distress call button to call a guard and then “grabbed a chair, stood on it so his genitals could be viewed through the cell door’s window, pulled his pants down, and started masturbating.” When a correction officer approached the cell, she witnessed him masturbating through the window and reported the incident.

Johnson had been reported for “public masturbation” on four prior occasions while at the United States Penitentiary Pollock in Louisiana, according to the court’s opinion, which contains specific descriptions of his onanism tactics, including one instance while Johnson was on suicide watch and another that ended when “he cut the lights off and went to sleep.”

The judges affirmed the district court’s finding the reports were admissible under 404(b) and  United State Supreme Court’s 1988 decision in Huddleston v. United States.

Tulsa DA responds to allegations in motion to disqualify

Attorneys representing April Wilkens have asked Tulsa County District Judge David Guten to disqualify the entire Tulsa County District Attorney’s Office from handing Wilkens’ resentencing application under the Oklahoma Survivors Act, which allows victims of domestic abuse to apply for reduced sentences based on domestic abuse as a mitigating factor. Wilkens is currently serving a life sentence for the murder of Terry Carlton, the son of the late Tulsa businessman Don Carlton.

Wilkens has argued domestic violence was a contributing factor in Carlton’s murder and argued for resentencing under the act. Guten denied her initial request for resentencing, but has yet to rule on a motion for a reconsideration or rehearing.

The motion to disqualify alleges that Tulsa County District Attorney Steve Kunzweiler is biased against the Oklahoma Survivors Act and has lied or misled the public about Wilkens’ case when talking to the media. The motion implies that two of his assistant district attorneys intentionally bought Wilkens’ former home to hold a Halloween wedding.

In a statement to media, Kunzweiler called the allegations “reckless and inappropriate,” and he indicated his office would not respond to the motion to disqualify.

We are aware that defense counsel is seeking to disqualify the Tulsa County District Attorney’s Office from further proceedings involving Ms. Wilkens’ case. This motion is more of smear campaign than it is a legal document, and our office has conducted itself with professionalism and integrity. These accusations of misconduct are reckless and inappropriate. The reality is that defense counsel is trying to circumvent the fact that they failed in their efforts to meet their burden of proof to obtain a modification of Ms. Wilkens’ sentence. We have responded to their request of Judge Guten to “reconsider” his earlier ruling denying sentence modification. We will await Judge Guten’s ruling based upon the pleadings which have been filed.”

The fact that Luke and Ashley Thompson bought Ms. Wilkens previous home (25 years later) is a fact that was unknown to them at the time of their acquisition. Luke and Ashley got married this past Friday and it was a lovely ceremony officiated by Tulsa County Presiding Judge Dawn Moody. The notion that they bought this house for any reason other than to enjoy their new union is absurd and insulting. Their original plans were to get married at the courthouse. However, the extensive courthouse renovations made that option unmanageable. I am frankly incensed that the marriage of Luke and Ashley has been maligned in this motion.

I have repeatedly stated that the Oklahoma Survivor’s Act is a good law as it is presently written. It has a process embedded within it, and litigants who are seeking sentence modification are obligated to abide by that process – which includes in some instances a hearing. Ms. Wilkens and her attorneys got the full benefit of the Survivor’s Act. They put their case on as they chose to and Judge Guten ruled against them. The next proper step in this process is to appeal Judge Guten’s decision to the Oklahoma Court of Criminal Appeals.

While the motion to disqualify argues the Thompsons’ Halloween wedding in Wilkens’ former home for alleged “creepy vibes” contributes to an appearance of impropriety, neither prosecutor was working on Wilkens’ resentencing case, according to an email from Kunzweiler to Wilkens’ attorneys.

Kunzweiler’s statement did not address allegations he misled the public by falsely claiming Carlton had a protective order against Wilkens and omitting the existence of a motion to reconsider in the case when he spoke to media. The Oklahoma Rules of Professional Conduct bar attorneys from making a comment to media they know “will have an imminent and materially prejudicial effect on the fact finding process in an adjudicatory proceeding,” but it offers little guidance on when that occurs.

Guten has not ruled on the motion to disqualify as of the publication of this article. If the motion is granted, Wilkens’ resentencing case would be handled by Attorney General Gentner Drummond’s office or by the office of another district attorney assigned the case.

Greer County deputy sheriff charged for boozy traffic stop

(Editor’s note: The video above and the article below include an off-duty law enforcement officer saying homophobic slurs and discussing domestic violence accusations.)

Greer County Deputy Sheriff Amber Espinosa has been charged by Comanche County District Attorney Kyle Cabelka with obstruction of a police officer, driving under the influence of alcohol and public intoxication in connection with a July 19 traffic stop by Mangum police.

The encounter, captured on more than an hour of body camera footage, happened after Mangum Police Department reserve officer Jamie Flatt observed Espinosa driving a late-model silver Corvette at a high rate of speed while the officer was putting gas in his patrol car.

Flatt followed Espinosa to her nearby residence, where the interaction became tense. Espinosa made a phone call to Greer County Sheriff Steve McMahan, who arrived at the scene about 15 minutes into the footage released by Cabelka’s office. While there, McMahan attempted to intervene in the officer’s investigation multiple times, initially attempting to convince Flatt that “neither one of you can finish a sentence.”

During the stop, Espinosa appeared to slur her words and became increasingly confrontational.

“I feel like this is just vindictive because your department doesn’t like the fact that we do our jobs,” she said. “And that is exactly what I will tell the DA and the judge and everybody else.”

At one point, Espinosa entered her residence and returned with an alcoholic beverage, which she consumed in front of the officer in an attempt to negate a potential DUI charge. While the encounter began calmly, Espinosa continuously lashed out at the officer, using a homophobic slur, making bigoted remarks and ranting semi-coherently.

“I went into my house and said, if you’re going to be a fucking douchebag, I’m going to go ahead and give you a fucking reason to fucking give me. So prove it, motherfucker,” Espinosa said to Flatt.

Minutes later, the officer mentioned the case of beer — which he said was Bud Light — in Espinosa’s passenger seat.

“Was it the Bud Light?” she responded. “Because I’ll tell you right now, I don’t drink that fucking nasty shit, f****t.”

She later referred to Bud Light as “the devil’s fuck hole drink.”

The body camera footage recorded 68 minutes of the incident, and it appears Espinosa was not arrested that evening but that Flatt considered seeking a search warrant for a blood test later. During the video, Flatt and his supervisor discussed the potential problems associated with arresting a deputy sheriff for DUI after she went inside to obtain a beverage, although the supervising Mangum PD officer repeatedly said “it doesn’t matter who she is” as Flatt expressed hesitation over how to proceed.

The case was referred to Cabelka’s office after District 3 District Attorney Dan Jacobsma recused from the case. Cabelka’s press release noted that Jacobsma had previously provided legal advice to the Greer County Sheriff’s Office, and at the 40-minute mark of the body camera footage, Espinosa suggests calling Jacobsma to ask whether field sobriety tests could be performed on her while she was at her house.

In the press release, Cabelka said Espinosa’s conduct was inappropriate.

“Her behavior was belligerent, manipulative, and entirely inconsistent with the integrity expected of any public servant,” Cabelka said. “The facts speak for themselves.”

Cabelka said McMahan, who was sworn in as sheriff in April 2023, exhibited “unprofessional and concerning” behavior by intervening in the traffic stop.

“While I am not filing criminal charges against Sheriff McMahan at this time, his behavior and demeanor during this stop fell short of the professional standards Oklahomans expect from law enforcement leadership,” Cabelka said.

Espinosa has worked in law enforcement since 2018, according to a post announcing her promotion to undersheriff in June. However, Cabelka’s press release referred to her as a “former undersheriff” for the county. Since joining the sheriff’s office in 2023, she has had duties as a school resource officer and a domestic violence and sexual assault investigator, which she noted during the traffic stop while accusing her partner of being abusive to her.

On appeal, Open Records Act case against DA Hicks revived

The Oklahoma Court of Civil Appeals has overturned a district judge’s granting of summary judgment to Stephens County District Attorney Jason Hicks in an Open Records Act lawsuit filed by Rep. Justin Humphrey (R-Lane) and former Rep. Kevin McDugle (R-Broken Arrow).

Humphrey and McDugle requested Hicks’ communications related to his involvement in an April 2023 clemency hearing for death-row inmate Richard Glossip. After Hicks initially refused to fulfill the lawmakers’ request, they filed suit in Stephens County District Court. Hicks ultimately released communications on the topic and moved for summary judgment, despite plaintiffs’ objection that not all responsive records may have been provided and their request for additional discovery in the lawsuit.

Associate District Judge G. Brent Russell granted Hicks’ motion for summary judgment, which requires a finding that no material facts are disputed by the parties. In her majority opinion in the 2-1 appellate court ruling, Judge Barbara Swinton reversed Russell’s decision and remanded the case for additional discovery because “the trial court should not have denied the request for discovery prior to granting summary judgment.”

“Plaintiffs submitted discovery requests to Defendant prior to the filing of the motion for summary judgment. Defendant did not answer the discovery requests, but instead, filed a motion to stay discovery along with his motion for summary judgment,” Swinton wrote. “In response to the motion for summary judgment, plaintiffs submitted a declaration pursuant to Rule 13 (d) of the Rules for District Courts of Oklahoma, asserting that plaintiffs’ response could be supported by additional discovery. Under this rule, the trial court has discretion to deny the motion for summary judgment where it appears that a party cannot present evidentiary material to support its opposition to the motion. Under the circumstances presented herein, it was an abuse of discretion for the trial court to deny relief under Rule 13 (d).”

In his dissent, Judge Thomas Prince questioned the motives of Humphrey and McDugle, who have advocated that Glossip was wrongfully convicted.

“The undisputed facts show that the District Attorney’s Office has produced all the requested text messages, although they were not produced until after the lawsuit had been filed,” Prince wrote. “The plaintiffs are now attempting to expand the case from an action about whether the plaintiffs are entitled to the requested text messages into an action about the adequacy of the search conducted by the DA’s Office.”

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