The state’s pursuit of the death penalty against a man accused of killing a Tulsa police officer should be dropped due to Oklahoma’s “unconstitutional” compensation for counsel appointed to defend indigent clients, an attorney said in a recent court filing.
Kevin Adams reasoned that he could make more money delivering pizzas than he will defending his client, David Ware, in the capital case, which he argued creates a conflict of interest that deprives Ware of his right to a fair trial.
Adams moved to dismiss the state’s pursuit of the death penalty against Ware on the grounds that Oklahoma’s statutory scheme for the compensation of appointed death-penalty counsel is “so completely and totally inadequate” that it is a structural error, permeating every aspect of his defense.
Ware is accused of shooting two Tulsa police officers during a traffic stop near 21st Street and Memorial Drive in June 2020. Sgt. Craig Johnson, 45, died of his injuries, and Officer Aurash Zarkeshan, then 26, recovered from critical injures after about four months of rehabilitation.
People are also reading…
Ware, then 32, is charged with first-degree murder and shooting with intent to kill.
A judge appointed Adams as counsel for Ware after the Tulsa County Public Defender’s Office cited a conflict of interest. Adams, a state and federal defense attorney with over 20 years of experience, said he accepted the case upon receiving a call from a judge and after meeting Ware.
Oklahoma’s Indigent Defense Act caps compensation for appointed lead counsel in capital cases at $20,000 and co-counsel at $5,000 — rates that Adams called an “obscene embarrassment” to the American justice system.
Adams pointed out that American Bar Association guidelines consider caps on compensation “improper” in death-penalty cases and provide that attorneys’ hourly rates should be commensurate with that of similar retained counsel.
Adams and co-counsel Robert Gifford are members of the Criminal Justice Act Panel — a federal indigent defense system — which compensates attorneys at $155 per hour. In Ware’s case, lead counsel will average “something less than $20.00 per hour,” Adams wrote.
Not only are he and Gifford, a former assistant district attorney and assistant U.S. attorney, not earning money, they are losing “tens of thousands of dollars” based on the hourly rate and inability to accept other court appointments or private-pay cases due to the “overwhelming” amount of time necessary to prepare for Ware’s trial, Adams wrote.
Oklahoma law affords appointed counsel the ability to request reasonable attorney fees that extend beyond the cap if they establish that a case is exceptional, requiring an extraordinary amount of time to litigate, but Adams wrote that “there is nothing exceptional” about Ware’s case as a death-penalty case.
He also pointed out that a bipartisan Oklahoma Death Penalty Review Commission in 2017 recommended that “adequate compensation should be provided to conflict counsel in capital cases, and the existing compensation (cap) should be lifted,” but the Oklahoma Legislature has not yet done so. Adams said he and Gifford plan to file a federal lawsuit on the matter.
“How many defendants are sitting on Oklahoma’s death row that received their sentences of death under this constitutionally flawed system of appointing conflict death penalty counsel?” Adams wrote in the motion. “The more difficult question is, ‘How many have been executed under this constitutionally flawed system of appointing conflict death penalty counsel?’”
Adams filed several additional motions Tuesday declaring other aspects of the case unconstitutional, which Tulsa County District Attorney Steve Kunzweiler called “not unusual.”
Kunzweiler said he will file a response to Adams’ motion. A hearing on all pretrial motions is scheduled for Feb. 25.
“We have successfully moved other cases forward once the trial court reviews the relevant case law, which is applicable to these types of challenges,” Kunzweiler said. “We still anticipate that this case will be litigated as a death-penalty eligible case in April.”
Related 2020 video: Attorneys discuss police video, possibility of death-penalty request in shooting of Tulsa Police Sgt. Craig Johnson
Attorneys involved in the murder case against David Ware speak about new developments after his first court appearance.
Photos: Case timeline for David Anthony Ware, accused in slaying of Tulsa Police sergeant
David Anthony Ware pulled over
June 29, 2020
Officer Aurash Zarkeshan initiated a traffic stop about 3:05 a.m. Monday, June 29, 2020, in the 2000 block of South 89th Ease Avenue for infractions including an improper turn and expired tags.
Sgt. Craig Johnson backed Zarkeshan, a December 2019 police academy graduate, on the stop as the subject grew increasingly obstinate, refusing to exit the car so it could be towed.
Dash cam footage, June 29
June 29, 2020
About 17 minutes later, after discussion, a Taser shock and pepper spray failed and officers began wrestling the subject from the car, the man pulled a gun from under his car seat and fired multiple rounds at the officers.
Ware then got into the car of a man he had called during the stop, and the two fled the scene.
Both officers were left in the roadway in critical condition.
Tribute to officers
June 29, 2020
“We have two officers who started fighting for their lives at 3 o’clock this morning and are still doing that right now,” Mayor G.T. Bynum said as the wounded officers were identified by city leaders.
“These are officers who have chosen to be in law enforcement at a historically challenging time.”
Impromptu shows of support began popping up around Tulsa, including gifts and notes left on a police cruiser at the Mingo Valley Division, where Johnson and Zarkeshan worked, and blue ribbons tied around telephone poles and trees.
Johnson was regarded as a veteran police officer with a compassionate heart and knack for solving citywide problems, and Zarkeshan as a man with a servant’s heart dedicated to peacekeeping.
Sgt. Craig Johnson mourned
June 30, 2020
Sgt. Johnson succumbed to his wounds Tuesday, June 30, 2020, at Saint Francis Hospital. The 15-year veteran of the department was the first line of duty death at the department since June 1996.
Tulsa police and federal law enforcement officials unveiled an initiative under Sgt. Johnson’s badge number focusing investigative and prosecution resources specifically on gun-related crimes. David Ware was accused of being a felon in possession of a gun, and another man was indicted on allegations that the gun he allegedly traded for heroin was later used to shoot Sgt. Johnson and Officer Zarkeshan.
Sgt. Johnson's funeral
July 1, 2020
Tulsa police gave a full escort to fallen Sgt. Craig Johnson on Wednesday, July 1, 2020, as his body was taken from Saint Francis Hospital to the Medical Examiner’s Office.
Bystanders lined the streets, some exiting their cars as rush hour traffic came to a stop with their hands over their hearts, as the procession passed through south Tulsa.
Outside the BOK Center downtown that evening, what had been planned as a rally to celebrate law enforcement became an impromptu vigil for the two officers. Several officers from the Tulsa Police Department made their way to the event once the procession ended.
Update on Zarkeshan
July 7, 2020
Tulsa police shared a positive update on Officer Zarkeshan’s condition, saying the 26-year-old was continuing to improve daily.
“This morning the doctors were able to remove the breathing tube and Aurash is communicating with family and loved ones,” the statement read. “The rehabilitation is going great with his physical strength improving to the point that he can stand. He is well ahead of where the doctors expected him to be given the injuries that he sustained.”
Zarkeshan shared another update from his recovery the following month.
Matthew Hall at Tulsa County jail
July 7, 2020
Matthew Hall, facing accusations he helped David Ware escape after the shootings of Johnson and Zarkeshan, attempted to hang himself while in the Tulsa County jail. Staff reportedly found him unresponsive on his cell floor with a sheet tied around his neck.
“Medical (staff) began treatment and Hall began breathing on his own,” a detention officer wrote in an incident report.
David Ware at Tulsa County jail
July 8, 2020
Tulsa World reporters uncover public records showing Sgt. Johnson and David Ware had come face to face before; Ware’s first arrest as an adult came 14 years prior at Johnson’s hands.
A week later, Ware was assigned counsel with death penalty experience, defense attorney Kevin Adams, after the Tulsa County Public Defender’s Office filed a notice of a conflict of interest.
Honoring Sgt. Johnson
July 8, 2020
More than half a million dollars was raised for the families of Johnson and Zarkeshan. Mayor Bynum said more than $100,000 was received in about four hours.
Police supervisors shared their memories of Sgt. Johnson as a “tenacious investigator” and caring mentor. The graveyard shift supervisor oversaw a squad of 11 officers, and none of them left his side throughout his hospital stay, they said.
Services the next day for Johnson drew thousands to Victory Church. Community members lined the 13-mile route to the cemetery.
Ware appears in September
September 2020
Special Judge April Seibert found probable cause for David Ware to proceed to trial on charges of murder, shooting with intent to kill, drug possession with intent to distribute and possession of a firearm after a felony conviction. She also kept the July order to withhold the body and dash camera footage of the shooting from public release, despite a defense request.
Counsel remained at odds over whether the footage be released, but District Judge William Musseman ordered it be made publicly available.
Chief Franklin presents video
Sept. 14, 2020
City officials released the body and dash camera footage showing the shooting, but Chief Wendell Franklin and Mayor Bynum urged the public to refrain from watching.
“We’re supposed to be a civilized society,” Franklin said in an address to the media. “We’re supposed to be a society that is different, is modern. Yet to me, it seems as though criminals have more … rights than what you and I do. They have more rights than what our law enforcement officers do.
“You would never be allowed publicly to see the execution of a criminal, yet today you get to publicly see the execution of a police officer. What kind of society is that?”
Ware to face capital trial
Sept. 17, 2020
The Tulsa County District Attorney’s Office formally announced its intent to pursue a capital case against David Ware. District Attorney Steve Kunzweiler listed several aggravating factors in support of his office’s request for the death penalty, including that the killing of Sgt. Johnson was “especially heinous, atrocious, or cruel.”
Zarkeshan returns to Tulsa
Oct. 15, 2020
Officer Zarkeshan, who received a surprise visit from his chief while recovering out-of-state, returned to Tulsa on a day proclaimed in his honor to greet a crowd of supporters.
The next week, Zarkeshan was honored with an award named for Sgt. Johnson during his first squad meeting since the June 29 shooting.
Trial date set after not guilty plea entered Nov. 2
Nov. 2, 2020
District Judge William Musseman scheduled a weeklong jury trial for David Ware beginning June 7, but he advised counsel to block out the entire month.
Death penalty consideration
A judge ruled prosecutors can pursue the death penalty against David Ware despite defense attorneys’ argument that the state’s statutes make the process unconstitutional.
Kevin Adams, lead counsel for Ware, and co-counsel Robert Gifford (pictured with Ware in court April 4) had asked the court to quash the state’s pursuit of the death penalty against Ware, saying Oklahoma’s compensation cap for lawyers appointed to represent indigent defendants in death-penalty cases is so low it creates a conflict of interest between defendants and their counsel.
Click here to read the story.
April 23, 2022: Ware found guilty
After deliberating for just under three hours, jurors delivered guilty verdicts on all counts against David Ware in the shooting of two Tulsa police officers.
Ware was found guilty of murder, obstructing an officer, possession of a controlled drug with intent to distribute and possession of a firearm after former conviction of a felony.
April 27, 2022: Jurors recommend death sentence in killing of Tulsa police sergeant
Jurors spent just under three hours weighing David Ware’s sentencing options, which also included life in prison or life in prison with the possibility of parole. District Judge Bill LaFortune had earlier dismissed two jurors who said they could no longer consider the death penalty in the June 2020 fatal shooting of Tulsa Police Sgt. Craig Johnson.
The jury recommended Ware spend life in prison along with maximum fines and other near-maximum sentences for the non-capital counts in the case: shooting with intent to kill, possession of a firearm after a felony conviction, possession of a drug with the intent to distribute, and obstruction.
Kelsy Schlotthauer
Staff Writer
I write because I care about people and peace, and I believe the most informed people make the best decisions. I joined the Tulsa World in 2019 to cover breaking news, and I currently cover crime and courts. Phone: 918-581-8455
