A conflict between the Comanche District Attorney's Office and a District Judge continues to rock the local judicial system and slow down due process, according to the prosecutor.
The Comanche District Attorney's Office recently filed its 24th petition in less than a month in the Oklahoma Court of Appeals to compel District Judge Irma Newburn to respond to a motion to self-recycle or transfer a case.
The most recent filing follows a series of petitions with the court in late August requesting 23 orders in other cases to move forward other cases. These records follow a nearly two-year dead end between District Attorney Fred Smith's office and Newburn.
First Assistant District Attorney Kyle Cabelka said in an interview with The Constitution that the situation is speeding up the judicial process.
Reaching for comment on the situation and before the warrant was issued, Newburn cited the Code of Conduct which prohibits judges from making public statements on ongoing cases.
"Well, I just have to say no comment," she said.
Cabelka offered court files to the jury showing that Newburn was conducting two trials in 2019 and none in the January / February files this year. In 2019, District Judge Gerald Neuwirth led five court cases. District Judge Scott D. Meaders, four; and District Judge Emmit Tayloe, four. In the January / February trial, Tayloe and Meaders oversaw two trials, and Neuwirth headed one.
In the 24th and final filing, Cabelka requested a ruling on an application for a bank order and forfeiture of the bond in the case of Marcus Jones, 41, from Tulsa.
Although the issuing of an arrest warrant on the case allowed progress, Smith said the Jones case has become a symbol of the stalemate within the Comanche County courthouse.
Jones was convicted of assault and battery in Comanche District Court in June 2017 after four previous criminal convictions – three for possession or intent to distribute a controlled hazardous substance, and the fourth for first degree manslaughter. He was sentenced to 23 years with seven years in prison.
According to Cabelka's report, on December 30, 2019, he filed a motion for the suspension of Jones' suspended sentence for a domestic violence arrest. Jones was given $ 10,000 bail and stayed at the Comanche County Detention Center until June 5, when he was on bail after Newburn continued the case through July 13.
Jones failed to pay his fines and failed to appear at the July 13 hearing. Cabelka asked for a bank order to be ordered and for the loan to be forfeited.
On August 19, Jones' probation officer filed a report to change Cabelka's filing and request that Jones be tried. The DA office modified the request for withdrawal on September 4, based on the request from the Oklahoma Department of Corrections (ODOC). Newburn did not decide on the amended motion until the day she responded to the Constitution to comment on the matter.
In its filing, the DA office requested an order to compel Newburn either to withdraw from the case or to have him referred to another judge. Newburn's failure to act in this case is "a simple legal obligation that does not involve the exercise of discretion," claims the DA office.
Smith said his office would first go through the appeals court regarding his complaints against Newburn. The Judicial Review Board could be the next point to seek relief. But first, he said, he wants to create the right legal basis for this option.
Newburn has served as the No. 3 District Office Judge since his appointment in 2016 by the then government. Mary Fallin. She was re-elected in 2018 without objection. Newburn served as the first assistant district attorney in Comanche County since 2008 before being appointed district judge.
Cabelka argued in his letter that Newburn had dismissed due process.
"The Judicial Code of Conduct states that a judge should handle any case that has been assigned to him. However, if there is the appearance of bias or prejudice, the law provides that a judge must disqualify," Cabelka told The Constitution. "Unfortunately, this law is not always obeyed."
Smith told The Constitution that the conflict between his office and Newburn began in late May 2019 with a case she was supposed to chair. It was learned that she refused to prosecute the case while serving as the assistant prosecutor. She then declined to withdraw from the case and was eventually excluded from overseeing the process.
Cabelka said that since asking for rejection, Newburn has shown "absolute bias and prejudice" towards the office and, in particular, towards Cabelka and Assistant District Attorney Jill Oliver.
"Things got more and more personal from that day on," said Smith.
Smith said he found it "obvious" that Newburn should refuse to monitor the case as it would lead to questioning during a possible appeal. He believes the Jones case was the time to take a stand.
"But that was the straw that broke the camel's back, so to speak," he said.
Cabelka told The Constitution he hoped the appeals court found his complaints valid. Finding a judicial complaint open, he cited a recent dismissal of an Oklahoma County judge for violating several codes of conduct from the bank.
After a three-week trial, Oklahoma County District Judge Kendra Coleman was removed from office by a 5-4 special court ruling for ethical violations and improper conduct at the bank. Newburn was among the judges who directed the case; she contradicted the majority.
It's a case, said Smith, that somewhat echoes the charges his office is making against Newburn.
With multiple lawsuits scheduled before Newburn in the jury's trial in September / October, Smith said there were concerns about the cases his office would have to try before Newburn.
"It makes things difficult," he said.