By BOB SHERRILL
Herald Staff Writer
BRISTOW –– The trial of former judge Donald Thompson has once again been delayed.
Shortly after 9 a.m. this morning, Comanche County District Judge C. Allen McCall dismissed jurors until 1:30 p.m. Monday while a judge appointed by the Oklahoma Supreme Court decides whether McCall will hear arguments on the fifth count against Thompson, misuse of a state computer.
Pottawatomie County District Attorney Richard Smothermon continued to argue that McCall should hear all five counts against Thompson, but he admitted if the trial has to continue with only four counts, he is ready to proceed.
Smothermon called today’s events “another delay tactic by the defense.”
“I’m tired. The delay by counsel has cost the state well over $10,000, and that doesn’t include our time, as well,” Smothermon said, adding the case needs to be resolved.
Defense attorney Clark Brewster maintains the fifth count is “nothing more than pure character assassination of Judge Thompson.”
The second issue that arose Tuesday concerning the constitutionality of the fifth count is before the state Appeals Court. That decision could take several days.
The often delayed trial hit another glitch Tuesday. Following a heated exchange with McCall, Brewster filed a motion requesting McCall disqualify or recuse himself from hearing the fifth charge, which is a misdemeanor offense.
McCall said since the Oklahoma Supreme Court appointed him to the case, the motion should be heard by possibly the Oklahoma State Court of Criminal Appeals.
The defense then scrambled out of the courtroom and headed for the phones to contact the administrative offices of the state Appeals Court for a ruling.
Late Tuesday, McCall said he intended to proceed with opening statements at 9 a.m. today unless he had word from the Appeals Court to stop.
“If I get a call to hold up, we will wait,” he said. “That could be a delay of just hours or a day or something longer.”
Smothermon argued the judge could not separate the misdemeanor count from the four felony counts. He said McCall did not have the option to try the misdemeanor count separately and that McCall must try either all five or none of the charges.
Smothermon said it was his role as district attorney to decide whether the infraction was of such a nature that it would call for criminal charges.
“That is where my office steps in. We have to determine if the offense reaches a level where charges should be filed,” Smothermon said. “That’s our job.”
Smothermon said prosecutors are not going to file charges against a state worker simply because he had used the computer to e-mail a message to a friend.
Brewster claimed in his motion McCall was biased and was not qualified to hear the fifth count because of the anger the judge displayed in a hearing earlier Tuesday.
In that hearing, McCall took exception to Brewster’s claim that every Oklahoma judge was in violation of the law, and McCall abruptly told the attorney he was overruling the motion and to sit down.
Brewster continues to claim the law about misuse of a state computer is vague and unconstitutional. He said any private use of the state computer was a violation –– even the fact McCall had the Bass Pro Shop Web site on his state computer in Lawton.
Despite the clouds of doubt over the trial, a five-man, seven-woman jury and two alternates were selected and were instructed to return to the courtroom at 9 a.m. today.
“I am a trial judge, and I do believe it is my job to try cases and not to determine if a law is constitutional,” McCall said.
Thompson also is charged with four counts of indecent exposure stemming basically from two chief witnesses.
The defense has been protesting the filing of the misdemeanor count almost from the time it was first filed in 2005.
But the defense has filed a parade of motions designed to block prosecution of the misuse of state computer charge and up to now all have been overruled.
Since the original three counts of indecent exposure were filed, the defense has been successful postponing a jury trial at least twice.
Initially the trial was scheduled for September 2005 and was delayed once again in November 2005.
Brewster also was successful in delaying a preliminary hearing from December 2005 to January 2006 with the selection of a new associate district judge by the Oklahoma Supreme Court.
Prosecutors have stated in court documents the introduction of evidence in the fifth count –– which includes photographs and e-mail messages with Thompson’s female business partner –– were vital by providing collaborating evidence.
Brewster said the salacious photographs of the judge found on the state computer would create a bias against Thompson in the minds of jurors.
Without the misuse of state computer count, Brewster believes the state would have a difficult time getting the obscene photographs introduced into the indecent exposure trial.
Source:
Sapulpa Daily Herald
