Oklahoma's Broken Death Penalty System

If you see the oppression of the poor, and the violent perversion of justice and righteousness in a province, do not marvel at the matter; for high official watches over high official, and higher officials are over them. Ecclesiastes 5:8 NKJV

I am a lawyer in Tulsa, Oklahoma. In preparing my defense of a client charged with capital murder of a police officer. I started investigating our court fund so I could build a record for structural error in regards to low conflict death penalty pay, which is only $20,000 for first chair and $5,000 for second chair. Tulsa County is particularly bad, in one case in 2003 a lawyer was only paid $5,000 to defend a death penalty case and another in 2004 that the judges removed an experienced death penalty lawyer after she refused to agree to limit her fees to $3,000. Death penalty cases should take a minimum of 500 to 750 hours for first chair and depending on the case could take up to 1,000 or even 1,500 hours.

What Oklahoma is doing on conflict death penalty cases is relying on the sense of duty and obligation felt by criminal lawyers that are willing to sacrafice their time to save the lives of those facing the death penalty. I believe some judges and prosecutors also do not want defendant's to have well funded defense attorneys because that makes their jobs more difficult. Privately some in the system will admit that it is a broken system, but they are afraid to speak out. Oklahoma's inadequate pay for death penalty counsel creates a broken system in which a defendant's chances of avoiding the death penalty is directly proportional to their lawyer's willingness to suffer finacial ruin.

While trying to build a record for structural error, I discovered that the county court funds around the state ultimately feed into the judges retirement account. The court funds are where the money for fines, fees and court assessments are deposited. The judges in our state that assess the fines, rule on motions to suspend fines for inability to pay and incarcerate defendants for failure to pay have a personal financial interest in whether or not defendants pay their fines, fees and assessments. Furthermore, judges in our state that are required to appoint and pay lawyers and experts for indigent defendants have a personal financial interest in denying those request or spending as little as possible.

There is a lot of money involved and I believe is the source of systematic corruption in the Oklahoma judicial system. Last year the judges retirement fund increased in value over $80 million dollars for only 570 judges (active and retired). This over 80 million increase is after increase from investments, a contribution of 22% of the salaries which is paid out of the money that comes from fines, fees and forfeitures of defendants and paying out over 20 million dollars in benefits.

In trying to understand this I sought the help of an accountant who researched the statutes and prepared a report explaining the relationship of the court fund to the judicial retirement.

I also reached out to a former Tulsa County district judge, James Caputo. What I learned from the former district judge greatly disturbed and shocked me. When I first spoke to this judge he explained to me how the system worked, how the judges collect the money from the defendants, put them in jail for failure to pay, hold on to as much as possible by paying out as little out as possible because that is how the judges retirement is funded.

I was shocked to say the least. I called back the next day and recorded the conversation this time. Former Judge Caputo was much more hesitant the second day, but he explained that when he was a judge he went to an Oklahoma State Judicial conference and that an employee of the state of Oklahoma involved in the judicial retirement system told the judges not to be suspending court costs because the Court Fund affected the judges retirement. Former Judge Caputo said that while that employee was telling the judges that, that the presiding judge would be sitting right there.

When former judge Caputo learned I had listed him as a witness he called on February 22, 2022 and I recorded that conversation as well. This recording is well worth listening to. Counsel for Mr. Ware called former Tulsa County Judge James Caputo to the stand as a witness during an evidentary hearing on February 25, 2022. Former judge Caputo's memory was so poor while testifying that it may cause one to wander how he was even able to find the courthouse that day.

There is at least one pending federal civil right lawsuit over the collection of court fines and fees by judges in Oklahoma. (Feenstra v. Sigler, 19-cv-234-GKF-FHM; filed by Lawyers' Committee for Civil Rights Under Law) and another case on appeal Carly Graff, et al. v Aberdeen Enterprises II, Inc., et al., (Tenth Circuit Court of Appeals Case No. 21-5031). The Complaint in the Graff case describes how the system works. This is a RICO cause of action verses the judges and the private company of Aberdeen and the Sheriffs.

The lack of funding of conflict death penalty counsel and the collection of the court fines and fees are different sides of the same issue. This is judicial corruption. Some of our judges are using heavy handed tactics to gather the money up and then refusing to spend the money because they want to keep the money for their retirement. I am trying to increase public awareness of what is going on. This is not common knowledge and has been kept from the public. This is an issue of great public concern. Even those that are part of the "system" and want to change it from the inside, do not know how to change this system without risking their livilhood. This issue will only be solved when the public demands it or through federal intervention.

I would encourage all who are concerned about this issue to increase public awareness and to contact your state represenative and state senator.

Read The Report of the Oklahoma Death Penalty Review Commission

Kevin Adams Speaks Out about Tulsa County District Attorney Steve Kunzweiler

State v. Ware; Tulsa County Case CF-2020-2889

Supplemental Motion to Strike Order Preventing Public Release of Information

Motion to Dismiss Bill of Particulars For Structural Statutory Error

David Ware's Reply To State's Response to Motion to Dismiss Bill of Particulars For Structural Statutory Error

Motion to "Not Politicize The Death Penalty"

Motion to Declare OKlahoma's Conflict Death Penalty Compensation Scheme and Court Funding Model Unconstitutional With Brief in Support

David Ware's Combined Response To The Government's Motion in Limine

David Ware's Motion to Compel the State to Produce the Evidence that he did Have Insurance

David Ware's Theory of Defense.

Systematic oppression of the poor by Oklahoma State Courts.

Many people do not know that the Oklahoma Judicial Retirement System is funded by the Court Fund. "All fees, fines, costs and forfeitures shall, when collected by the court clerk, be deposited in a fund in the county treasury designated "The Court Fund"". The money flows from the local "Court Fund" to the to the "State Judicial Revolving Fund" and then into the "Oklahoma Judicial Retiremnet Fund." From the Oklahoma Judicial Retirement fund twenty-two perecent (22%) monthly of "total actual paid gross salaries of the members of the Uniform Retirement System for Justices and Judges" is transfered into the judicial retirement account.

The same judges that assess the "fees, fines, costs and forfeitures" personally profit from those assessments because a portion of that money ends up in thier retirment account. (Title 20 O.S. 1103.1 ) To undrstand this you can read "Judicial Court Funds And Their Relationship to Judicial Retirement in Oklahoma". The law says the "State Judicial Retirement Fund should have a funded ratio at or near ninety percent (90%)"", however the fund is currently overfunded at 111%. The Judicial Retirement Fund is the best funded retirement fund in the state, better than teachers, law enforcement officers and firefighters. And unlike these other groups, most of the money funding the judges retirements comes from the poor.

You can also read the complaint in Carly Graff, et al. v Aberdeen Enterprises II, Inc., et al ., (Tenth Circuit Court of Appeals Case No. 21-5031) currently on appeal at the Tenth Circuit.