Judge's bailiff comes to his defense

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By Kandra Wells

A local judge lambasted on a national news show for his sentence in a child’s rape says the program used erroneous information, even though he tried to correct a participant who called him beforehand.

“This judge should be thrown off the bench immediately,” Bill O’Reilly said during an airing last week of the “O’Reilly Factor,” a Fox News program. O’Reilly referred to Oklahoma District 18 Judge Thomas Bartheld, the judge for state court proceedings in Pittsburg and McIntosh counties.

O’Reilly’s comments came during a segment about the David Harold E. Earls rape case, first reported on May 17 by the McAlester News-Capital. Earls, 64, of Wister, pleaded no contest May 13 to charges of first degree rape and forcible sodomy of a 5-year-old girl, and was sentenced by Bartheld to a year in prison, with another 19 years suspended, in a plea bargain with local prosecutors.

Geraldo Rivera told O’Reilly that he spoke with Bartheld by phone before the segment was aired.

“This is one of the most infuriating, horrifying cases ever,” Rivera said during the broadcast, adding that one of the judge’s rulings in the case was “totally indefensible.”

According to Rivera, the judge had ruled that the victim in the case, and another child witness, would not be allowed to testify by closed circuit television. But Bartheld said that he did, in fact, rule in favor of prosecution requests that the children be allowed to testify by closed circuit.

In a May 6 court ruling, Bartheld granted the request to allow the victim to testify by closed circuit. A court order in the case also notes that permission had already been granted on Feb. 18 for the other child in the case to testify by closed circuit.

“She was going to be allowed to testify by closed circuit,” Bartheld said Monday.

He explained that his ruling came following a two-day hearing in which the young girl was qualified as a witness, a technical term referring to a witness’ ability to tell the difference between truth and a lie.

Bartheld said he was contacted by Rivera before the O’Reilly Factor piece was aired.

“They put Geraldo on, and it was clear to me that whatever information he had, I was the bad guy,” Bartheld said. “He talked to me, that ‘that child was traumatized in your courtroom.’ I said, ‘I didn’t see that.’

“I don’t know what information he had, but he firmly believed she had been” traumatized by the courtroom experience.

District 18 District Attorney Jim Bob Miller told the News-Capital Monday that he also spoke with Rivera about the case, but that he was “floored” by what was aired.

“We didn’t have our key witness,” said Miller, whose office later negotiated the plea bargain for a year’s imprisonment for Earls, with the rest of a 20-year sentence suspended. In addition, Earls is now a convicted sex offender and is required to register for the rest of his life once he is released from prison, Miller said.

“We were offered a year by the defense,” Miller said, standing outside of Bartheld’s office Monday. “Our option was to take that deal or go to court and risk losing all of it.”

Miller explained that his staff weighed the evidence in the case and the child’s demeanor in the courtroom during the qualification hearing.

“The little girl was terrified to testify to anything,” said Miller. “Not just of being in the courtroom in front of (Earls).

“It took two days for her to qualify, to say if she could tell the difference between the truth and a lie. It was terrifying for her to answer questions. How are we going to put that girl on the stand?”

According to Miller, he relayed all of that information to Rivera during a 30-minute interview about the case before the program aired.

“I told him every bit of this,” Miller said. “It floored me the way he did this show, the way he did him,” the district attorney said, nodding towards the judge’s office.

Attorneys and a clerk who were in the courtroom and later, in the judge’s chambers, for the hearing said the girl fidgeted and got up from her chair, standing on a table in the judge’s office at one point. Another time she opened the door from the judge’s office and walked out into a hallway.

“She wouldn’t stay in the chair,” said Shayla Harper, Bartheld’s clerk.

Harper said it was apparent the child did not want to talk, even after the effort was moved from the courtroom into the judge’s office.

During that portion of the hearing, there were seven people present: the child, Bartheld, Harper, a court reporter, two attorneys representing the prosecution and defense, and a representative of BACA, Bikers Against Child Abuse. Bartheld said the BACA representative was a woman the girl trusted and was allowed in chambers at the request of Lisa Birdwell, the assistant district attorney on the case.

It was during that closed circuit portion of the hearing that the girl was qualified as a witness in the case, which would have allowed her to be able to testify at Earls’ trial by closed circuit. Her testimony would have been displayed on televisions in the courtroom for the jury, Earls and others attending the trial.

“I do not believe that Judge Bartheld did anything wrong,” said Tim Mills, Earls’ attorney who attended both hearings in the case. “I believe he followed the law. The statutes are clearly set out by the Legislature as to what he is responsible to do when there is a child under the age of 13 to testify.”

Under the law, if the child had testified at trial about what had happened, other witnesses who had interviewed her during their investigation of the case, such as police, might have also been allowed to tell a jury about what she told them. Generally, such testimony is hearsay, and would be inadmissible for trial purposes.

Miller said his office had medical evidence from a doctor’s exam that found the child’s hymen was scarred. But he noted that the doctor would not be able to say how or when the scarring had happened, or who might have caused it.

Even with videotaped interviews, Miller said prosecutors and judges are required to follow the law in every case.

“Can we just leapfrog all over (Earl’s) Constitutional rights?”

Harper said she has fielded many calls to Bartheld’s office from across the country, and the state.

Harper said there were also many calls from people in North Carolina and New York who wanted to voice their opinions about the judge based on O’Reilly’s show.

“It didn’t happen they way they portrayed,” Harper told one caller, a woman who said she was calling from California. “That was not the whole story.”

Harper explained to the caller that the sentence was a plea bargain negotiated between attorneys for the prosecution and Earls, and the caller questioned the state’s laws.

Bartheld was asked if he has ever rejected a plea bargain presented to him for approval by attorneys on both sides of a case.

“Once,” he said, recalling a case in which a defendant broke the law during the plea bargain negotiations.

Asked about the plea bargain in the Earls case, he agreed that he had the authority to reject the negotiation.

“But then what do you do?” he asked, referring to the future of a case in which both sides had already indicated their goals. “That’s between the D.A. and the defense attorney. The D.A. knows their case inside and out. The D.A. knows what they can prove and what they can’t prove.”

Bartheld said he has not seen the “O’Reilly Factor” segment about him, but he thinks the pair was misinformed about his ruling.

“Based on my understanding, Geraldo and Mr. O’Reilly didn’t have their facts correct as to what actually occurred,” he said.

Contact Kandra Wells at kwells@mcalesternews.com.

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