Following a year of back and forth antipathy between the Comanche County District Attorney Fred Smith’s Office and the court’s judges, an application for relief has been filed following a ruling last week by District Judge Scott D. Meaders.
At issue is a rift between the DA’s office and Comanche County District Judge Irma Newburn that’s led to recusals and requests for recusals regarding her overseeing cases involving three assistant district attorneys. Its wake has led to Newburn recusing herself from 110 prior cases and the state’s request that she step away from overseeing another 80 cases.
Application for writ of mandamus
The DA’s office filed its application Nov. 27 to the appellate court to assume original jurisdiction and to petition for a writ of mandamus in Comanche County District Court. A writ of mandamus is a court order compelling someone to execute a duty that they are legally obligated to complete.
The complaint stems from Meaders’ denying the DA’s office’s request for Newburn to recuse from a case against Aron Chavez who was charged with possession of a firearm after former felony conviction.
According to the procedural history, a hearing on Aug. 23 was held where Newburn decided to not recuse herself from the case. On Sept. 5, the DA’s office filed a formal motion for her to step aside from the case and on Sept. 10, Newburn set the case for a judgment and sentencing hearing for Sept. 16 over the State’s objection.
During the hearing, the DA’s office filed a re-presentation of the motion requesting Newburn’s recusal and the case was continued. On Oct. 31, a hearing was held before Meaders. During the Sept. 16 hearing, Assistant District Attorney Christine Galbraith had recommended that the case be transferred to Meaders, who had an older pending case involving Chavez.
Following Meaders’ ruling on Nov. 25, a hearing was held before Meaders regarding the order. The next day, the State filed a motion to stay the case.
State demands “fair trial … impartial judge”
The matter involves the disqualification of Newburn. The State cited that, under the requirements of mandamus, it has the right to a “fair trial and an impartial judge” and alleges that Newburn “has shown actual bias and prejudice towards the State and the assistant district attorneys and District Attorney that appear before her,” according to the filing.
Origins of bad blood between judge, DA’s office
The case the DA’s office cites as kicking off the vicissitudes between it and Newburn goes back to a May 29 request that she recuse in the case of Kevin Crisel, 45. Crisel was charged in December 2018 with a felony count of lewd or indecent acts with a child under age 12. The crime is punishable by 25 years to life in prison due to the child’s age, according to state statutes.
Crisel is accused of sexually assaulting a girl from 2009 to 2012, when she was between the ages of 5 and 8-years-old. Newburn was slated to preside over the case.
While serving as an assistant district attorney, before her appointment as a judge, Newburn had declined to file charges against Crisel during a prior investigation. First Assistant District Attorney Kyle Cabelka stated he first learned of Newburn’s prior action on May 22. He then spoke with Crisel’s attorney, David L. Smith, of Lawton, regarding the discovery. Crisel, through his attorney, announced that he wouldn’t ask Newburn to recuse.
Cabelka then asked Newburn to recuse from hearing the case “to avoid any appearance of impropriety and possible appeals issues in the future.” According to the court paperwork, “it is the State’s argument that the appearance of bias or prejudice has become even more apparent.”
On June 4, Newburn sealed the State’s motion, the State’s re-presentation and a nine-page order denying the motion, according to the filing.
Allegations of impropriety
On June 6, during a plea hearing, Newburn is alleged to have ordered her bailiff to lock Assistant District Attorney Jill Oliver in her courtroom “only to talk down to her and make allegations against her without” allowing her opportunity to explain or defend herself, the filing states – “This action by Respondent Newburn rises to the level of false imprisonment and/or kidnapping.”
Four days later, Newburn is accused of using a motion hearing in the Crisel case to make a “public statement” about Cabelka and Assistant District Attorney Taren Lord-Halvorson, Cabelka’s wife, according to the filing. The State was not allowed to respond to the statement, and he was told that if he were to respond, he would be held in direct contempt of court.
Newburn’s statement that Cabelka and Lord-Halvorson were “on notice of their contemptuous behavior …” “lack of integrity” and that neither would be permitted in her chambers without opposing counsel present or a court reporter “in every case, not just this one,” was included in the court transcript.
According to the filing’s footnotes, Lord-Halvorson is the civil/juvenile assistant district attorney, was not present for the hearing and has never appeared before Newburn in open court. Newburn referenced Lord-Halvorson as Cabelka’s wife, which is labeled as taboo according to Canon 2 of the Code of Judicial Conduct.
Resolution to Crisel case
On July 26, Newburn was ordered to recuse from the Crisel case following an appeal. The appellate court ruled that Newburn’s prior knowledge of Crisel’s other allegations supports a finding that her impartiality might reasonably be questioned. The court clerk was instructed to draw another judge to hear the case.
Crisel’s case has been scheduled for the January/February 2020 jury trial docket.
In September, Cabelka filed a request asking to redact information from Lawton Police Detective David Shucker’s affidavit filed in a case and to unseal the remaining portions of the record. The request would vacate the June 4 order by Newburn sealing the records.
Recusals and refusals
Prior to the appellate ruling, on June 16, Newburn refused to hear any criminal cases before her that involved Cabelka and Oliver. From June until the end of August, Newburn “temporarily recused” from or transferred 110 cases without listing the reason or basis for the recusal. Each case was being prosecuted by Cabelka or Oliver.
In turn, in September, the State filed a motion for Newburn to recuse from another 80 cases involving the assistant district attorneys, including the Chavez case. Of those, there are 30 with re-presentation motions pending before Meaders. No hearings have been held on those cases.