The Masturbating Judge – Part 2
The following is a time-line of events as we covered them here at Bubbaworld as the trail of the Masturbating Judge took place. These were updates to our original article on the scandal and were written in the present tense as the events took place.
Trial Day #1 – June 12:
Jury selection began in the morning with 169 prospective jurors showing up for jury duty. The morning was devoted to hearing from those potential jurors with medical or job related hardships. A total of 40 prospective jurors were excused, leaving the available jury pool at 129.
The notoriety of the case which has been the butt of jokes by Jay Leno and other comedians prompted Judge McCall to warn that jury selection would be extensive. As the day wore on a total of 12 potential jurors were called and extensively questioned. Of those all but one said they were familiar with the accusations against former judge Thompson. All 12 indicated they had no preconceived opinions of the case and could render a fair verdict based solely on the evidence presented at trial.
Chief prosecutor Pattye High of Oklahoma County asked potential jurors whether they could handle testimony about a penis pump, erectile dysfunction, DNA tests and other sexually graphic testimony and whether they would be comfortable discussing sexual matters pertaining to the case when they are deliberating it. None of the potential jurors indicated they would have a problem with these issues.
Lead defense attorney Clark Brewster of Tulsa filed another challenge Monday morning to the misdemeanor charge of misuse of state property. He failed last Wednesday in a bid to have that charge severed from the case. Brewster maintains that the law has never been interpreted in a judge’s recorded ruling and that the law is unconstitutionally vague. Brewster claims statute would arguably prohibit any state employee or person with access to state acquired property from sending an e-mail to a spouse or relative. A hearing on this motion is set for early Tuesday outside the presence of the potential jurors. Jury selection is expected to be completed by the end of the court day on Tuesday.
Trial Day #2 – June 13:
Day two of the trial started with a ‘bang’ of sorts when defense attorney Clark Brewster requested that Comanche County District Judge Allen McCall recuse himself from overseeing a charge of misuse of a state computer.
Brewster took advantage of a comment by Judge McCall in a motion hearing earlier that friends had placed material related to Bass Pro Shops on his office computer, possibly violating the language of the statute pertaining to misuse of a state computer.
Brewster said McCall admitted to violation of the law in open court, thereby demonstrating the law’s vagueness and prosecutorial discretion. Brewster maintained that “every judge in the state would be in violation of this law as it’s written”.
Judge McCall over-ruled Brewster’s motion and told him to take his seat. McCall said the law is subject to prosecutorial discretion but did not feel the need to recuse himself in light of the Bass Pro Shops material on his computer. McCall told Brewster, “I don’t know how to use a computer, barely know how to turn it on. If that’s a violation, maybe I’ll come hire you.”
Brewster requested a hearing on the judge’s ability to hear the case further and an opportunity to question McCall under oath about his use of a state computer. Judge McCall said he would not delay the trial for this issue.
This entire drama played out inside the courtroom while more than 100 prospective jurors waited to enter the room to continue the selection process. The prospective jurors did not hear any of this exchange between the judge and lawyers. They simply waited as it played out.
The second-half of the trial day was consumed with jury selection. Ultimately a jury of five men and seven women was picked to hear the case against the retired judge. Once jury selection was complete, Judge McCall sent them home for the day indicating that testimony would begin on Wednesday morning.
After jury selection was completed and the jury dismissed for the day, defense attorneys Brewster and Nigh once again raised the motion challenging the constitutionality of the law pertaining to misuse of state property and also renewed their bid for Judge McCall to recuse himself from the misdemeanor charge or at least sever it from the four felony charges. Richard Smothermon, a special prosecutor, weighed in on the arguments, telling the judge “it’s all or nothing.” Smothermon told the judge the misdemeanor charge factors heavily on the state’s case involving the indecent exposure charges as that charge centers on photograph’s found on the judge’s computer and allegedly showing the former judge engaged in sexual activity with a woman other than his wife.
Judge McCall rejected the defense motion, telling the lawyers he didn’t think he could rule on the constitutionality of the law, nor did he think it would be proper for him to set aside the misdemeanor charge. Defense attorneys indicated they intended to appeal McCall’s ruling and the judge indicated that he would delay the trial until the appeals are settled.
Trial Day #3 – June 14:
On Wednesday morning court was called into session and the trial delayed when Judge McCall excused one juror and sent the remaining 11 home until Monday while attorneys wrangle over two legal issues.
Defense attorneys asked the Oklahoma Court of Criminal Appeals to rule as unconstitutional a statute on misuse of state property under which Thompson is charged. They also are asking the Supreme Court to appoint a judge to hear a request to have Judge McCall recused from the case. Defense attorney Brewster indicated that the hoped to have a judge hear the recusal by noon on Wednesday and that he also hoped the Court of Criminal Appeals could take up the statute dispute by Friday.
Further developments as they, well, as they develop.
