Judge to decide whether to remove prosecutor

UPDATE:

An Osage County judge will rule next week on whether a special prosecutor accused of misconduct should be removed from the indecent-exposure case of a Tulsa judge.

District Judge M. John Kane IV listened to a day's worth of testimony on Wednesday, then took the case under advisement and said he would decide by 5 p.m. June 11.

Kane was appointed to preside over the initial trial phases in the case against Tulsa County District Judge Jesse Harris, who was charged April 24 with two counts of indecent exposure.

Harris is accused of exposing and fondling himself in front of his ex-girlfriend and another woman in the parking lot of an east Tulsa motel on March 9.

Washington County District Attorney Rick Esser was appointed as the special prosecutor in the case, but Harris' lawyers have accused him of leaking a graphic police affidavit before it was filed at the Tulsa County Court Clerk's office.

Defense attorneys Allen Smallwood and Joel Wohlgemuth questioned Esser and assistant district attorney Will Drake about two probable-cause affidavits that had been prepared against Harris in an effort to get him to retire.

One affidavit listed the two felony indecent exposure charges and detailed the alleged crimes. The other affidavit, an alternative one, was prepared with two misdemeanor charges of outraging public decency.

The jail term and fines would have been deferred in the latter option, with the condition that the judge retire from the bench within 30 days of charges being filed.

Esser defended the preparation of the affidavits and noted that the plea offer in return for retirement was not unlike one supposedly offered to former Creek County District Judge Donald Thompson, who was convicted of four counts of indecent exposure in June 2006.

Wohlgemuth said state law gives that kind of discretion to the Oklahoma Council on the Judiciary, not prosecutors.

The defense attorneys also criticized an April phone call from Esser's office to Harris' judicial chambers. Esser said his office was confused about who was representing Harris, so he called to find out the name of Harris' attorney, then Robert Butler.

The defense attorneys claimed that the phone call violated the state's professional rules of conduct.