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In an unsealed transcript of a September criminal hearing, Oklahoma County District Judge Tammy Bass-Lesure says she would step down from the case because she refused to hear any more cases prosecuted by the district attorney and his top two assistants.
Assistant prosecutors had asked Bass-Lesure to step down from the criminal case on Sept. 8 because the defense attorney was one of three attorneys the judge had recommended to a criminal defendant with a pending case assigned to her.
After what appears to have been a heated exchange with the prosecutors, Bass-LeSure ordered the transcript of the hearing sealed. On Sept. 20, Judge Lisa Davis signed an order releasing the transcript "to the State of Oklahoma."
FOX 25 News in Oklahoma City reported last week on the transcript being sealed. Even though the transcript had been unsealed, the news station was not able to obtain a copy until Friday.
As the station noted Monday night, the transcript reveals hard feelings between the judge and the district attorney's office.
At one point, Bass-Lesure accused Assistant District Attorney Jennifer Chance of having verbally attacked her after Bass-Lesure was asked to step down from the high-profile murder trial of an Oklahoma City pharmacist.
Chance pointed out to Bass-Lesure that she was out of town when that occurred. It was Chance's boss, District Attorney David Prater, who had made the comments Bass-Lesure complained about.
An investigation by Prater's office had found that Bass-Lesure gave a defendant the names of three attorneys even though he had a drug case assigned to her. The Oklahoman reported:
Prosecutors had the gym trainer wear a hidden microphone July 22 to record a conversation with the judge. Prosecutors told the judge this week they would file a judicial complaint against her, sources have said. One attorney listed by the judge is representing the pharmacist.
A group of black pastors and community leaders then called for a civil rights investigation of Prater for "going after" Bass-Lesure and another black judge.
In response to that criticism, Prater said of Bass-Lesure:
What became obvious to us is that the State of Oklahoma was not going to be able to get a fair trial due to some alleged activities by the judge in [the murder trial of the pharmacist]. It's incredibly unfortunate that this judge did this. It's incredibly irresponsible, it's immoral and it's corrupt. And it's her fault -- her fault, no one else's -- that we're in this situation right now.
A week after the Sept. 8 hearing, it was announced that Bass-Lesure would no longer hear criminal cases as of Jan. 1. Instead, she will take over probate, guardianship and adoption cases.
During the hearing Sept. 8, Bass-Lesure seemed to imply that Chance was incompetent, questioning why every time she appeared before the judge she was accompanied by either Prater or First Assistant District Attorney Scott Rowland.
Chance said they accompanied her only in cases involving the particular defense attorney because he had yelled at her. The defense attorney then interjected that he had yelled her name in a courthouse hallway only after she had been rude and then walked away without acknowledging his request.
As for the argument with Chance and Rowland on Sept. 8, Bass-Lesure told FOX 25 News that she didn't say or do anything inappropriate but wouldn't explain why she sealed the transcript.
The transcript should never have been sealed, and her order doing so would not have survived a legal challenge. Federal courts have said judicial documents are presumptively open to the public and may be sealed only if that right to access is outweighed by the compelling need to protect higher interests. No compelling reason existed in this situation.
Instead, reading the transcript reminded me of Daniel Tosh's parody of a childish insult, "I'm
better than you, na-na, na-na, boo-boo, go stick your head in doo-doo."
Better behavior is expected of those responsible for administering justice in our courtrooms.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
Oklahoma County District Judge Tammy Bass-LeSure sealed the transcript of an open court hearing in September in which she had a heated argument with prosecutors, FOX 25 in Oklahoma City reported Wednesday.
Bass-LeSure yelled at prosecutors after they asked her to step down from a criminal trial in which the defense attorney was one of three attorneys the judge had recommended to a criminal defendant with a pending case assigned to her, the television station reported.
The district attorney’s complaint about that recommendation led to Bass-LeSure recusing herself in late August from the murder trial of an Oklahoma City pharmacist because one of his defense attorneys also was among those three.
In mid-September, Bass-LeSure announced she would no longer hear criminal cases as of Jan. 1.
Bass-LeSure was presiding over a criminal hearing on Sept. 8 when prosecutors asked that she remove herself from that case as well, FOX 25 reported.
After a heated exchange with the prosecutors, Bass-LeSure ordered the transcript of the hearing sealed, the station reported.
On Sept. 20, a court order was issued releasing the transcript “to the State of Oklahoma.” The order was signed by Oklahoma County District Judge Lisa Davis on behalf of Judge Ray C. Elliott, according to the court document.
FOX 25 was not able to obtain a copy of the transcript Wednesday.
Bass-LeSure’s order sealing the transcript – and a court order releasing it to only the district attorney's office – would seem unlikely to survive a legal challenge.
Federal courts have said judicial documents are presumptively open to the public and may be sealed only if that right to access is outweighed by the compelling need to protect higher interests. (See, e.g., Nixon v. Warner Communications. Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978))
As open government attorney Bob Nelon told FOX 25:
The reason for excluding public access to the transcript of what happened in open court is so rare as to almost be unjustifiable. It is essential that the public be able to watch the justice system under way.
Perhaps someone at the Oklahoma County Courthouse or at the district attorney's office will agree and avoid the need for litigation at taxpayer expense.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
Oklahoma television stations and a newspaper's Web site will be allowed to have cameras in the courtroom during the trial of a pharmacist charged with killing a would-be robber, an Oklahoma County district judge ruled today.
Judge Tammy Bass-LeSure granted a request from KWTV and KFOR in Oklahoma City and KOTV in Tulsa to televise Jerome Jay Erlsand's murder trial after the jury is selected.
The Oklahoman and NewsOK.com also will be allowed to take photos inside the courtroom and to show the trial on the newspaper's Web site, the judge said.
No trial date has been set.
"Permitting news coverage with the assistance of video and audio recording will provide citizens far and wide the chance to observe with their own eyes and ears the proper conduct of an important judicial proceeding which they would be entitled to attend and observe in person, but for the limitations of space and work schedules," the news organizations contended in their motion to the judge.
Neither the prosecution nor the defense objected to televising the trial, according to the motion filed by the news outlets.
Under Oklahoma law, the initial decision to allow the cameras into the courtroom rested with Bass-LeSure, who is presiding over the trial.
In 1958, some 20 years before the U.S. Supreme Court adopted the same philosophy, the Oklahoma Court of Criminal Appeals reasoned that the mere presence of cameras in a courtroom does not inherently interfere with the defendant’s right to a fair trial. (Lyles v. State, 1958 OK CR 79, ¶¶ 21-23, 330 P.2d 734, 742)
Noting that it had allowed television cameras in its courtroom, the state court said, “Our experience is that when properly supervised by the court, there is neither disturbance, distraction, nor lack of dignity or decorum.”
The court contended that television cameras educate the public about the judicial system, explaining:
“There is no field of government about which the people know so little as they do about the courts. There is no field of government about which they should know as much, as about their courts. Those institutions of justice engaged in construing constitutional rights and interpreting legislative acts which will determine our enjoyment of life and liberty and our pursuit of happiness. What is more vital to the people? Many members of the legal profession who advocate the dissemination of knowledge for every purpose in all other fields rebel at the thought of the people being informed concerning the operations of the lawyers’ legal preserve. The courts do not belong to the lawyers but are institutions by, of, and for the people. In this modern age, it is well that the veil of mysticism surrounding our courts be removed and the people be confronted with reality. We are not afraid or ashamed and we must be consistent.”
However, the current standard for permitting cameras in Oklahoma courtrooms came about in 1997 when the Oklahoma Supreme Court adopted Judicial Canon 3(B)(10), which states:
“Except as permitted by the individual judge, the use of cameras, television or other recording or broadcasting equipment is prohibited in a courtroom or in the immediate vicinity of a courtroom.”
Even if the judge allows cameras, Canon 3(B)(10) permits the defendant to nix their use in the courtroom. As recently as 2000, Oklahoma and Alabama were the only states that required the consent of criminal defendants to televise their trials.
Oklahoma law also prohibits the photographing or broadcasting of any witness or juror who objects to the judge in advance.
Here is the rest of Canon 3(B)(10)’s wording:
• Before cameras, television or other recordings or broadcasting equipment are used, express permission of the judge must be obtained.
• The judge shall prescribe the conditions and specific rules under which such equipment may be used.
• Media personnel shall not distract participants or impair the dignity of the proceedings.
• No witness, juror or party who expresses any objection to the judge shall be photographed nor shall the testimony of such a witness, juror or party be broadcast or telecast.
• There shall be no photographing or broadcasting of:
(1) any proceeding which under the laws of this State are required to be held in private; or
(2) any portion of any criminal proceedings until the issues have been submitted to the jury for determination unless all accused persons who are then on trial shall have affirmatively, on the record, given their consent to the photographing or broadcasting.
• No media representative shall offer, nor shall any party, witness or juror accept, consideration in exchange for consent to telecast, broadcast or photograph the judicial proceeding.
• Representatives of the news media shall conduct themselves at all times in a professional manner consistent with the spirit and intent of this rule. In order to insure such conduct, if such conduct of the news media which violates any of these rules is brought to the attention of any judge, the offending person shall be notified to immediately cease and desist such activity. If the offending party refuses to comply with the order, the judge may act to end such activity, including the seizure of the equipment of such person. Any offender may be dealt with for contempt of court.
(Canon 3(B)(10) of the Oklahoma Code of Judicial Conduct, OKLA. STAT. tit. 5, Ch. 1, App. 4)
Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
