A judge will reconsider his decision to temporarily block release of video showing the shooting of two Tulsa police officers after a defense attorney alleged that the footage would contradict claims police made.
David Anthony Ware, 32, had a not-guilty plea entered on his behalf Thursday morning on four charges, including first-degree murder and shooting with intent to kill, related to the June 29 shooting of Sgt. Craig Johnson and Officer Aurash Zarkeshan. Johnson, 45, died at a Tulsa hospital June 30. Police on Wednesday escorted Zarkeshan on the initial leg of his transport to an out-of-state rehabilitation facility.
In court Thursday morning, defense attorney Kevin Adams said the Tulsa County District Attorney’s Office “freely admits their intention” to seek the death penalty against Ware. He said that is part of why he was frustrated to learn a prosecutor received a judge’s approval July 6 to prevent release of video footage of the shooting for at least six months, as Special Judge David Guten made the ruling before Adams’ appointment on July 14 and before he could respond in court.
Another issue, Adams said, is that he’s received information that the footage could refute statements a Tulsa police detective wrote in an affidavit about Ware’s reportedly standing over Johnson while shooting him.
“I don’t approve of what Mr. Ware did, but let me tell you what, if Mr. Ware was not charged with killing a police officer, we would not be having this discussion,” Adams said. He later told reporters, “Even if you hate Mr. Ware, OK; you ought to, for the rest of us and for the sake of our system, want the process by which the state of Oklahoma is asking to kill him to be completely and totally fair.”
Guten will hold a hearing on the issue Monday afternoon and wrote July 6 that the order could change or be discussed again later. He acknowledged Thursday that he “made a decision” not to view the videos before ruling on the state’s request, saying, “I didn’t think that I needed to do that to make my determination” on the subject.
Assistant District Attorney Kevin Gray said he would not discuss the specific comment within the affidavit about Johnson’s and Ware’s positions, but Adams said he based his statements partly on information he received from the state. Adams said it is important for him to see the footage for himself as he prepares Ware’s defense rather than rely on the claims of police.
Gray contended that the defense should be able to see the video but said that should be due to obligations to exchange discovery, or evidence, rather than a blanket release to anyone who wants to see it.
“If we kill the order, quite frankly, the media behind me would have authority under (the Oklahoma Open Records Act) to go next door to TPD and demand it because there would be nothing (legally) to stop them,” he told Guten. Adams said, “I just can’t imagine in a case like this the state of Oklahoma would sit idly by and watch this get disseminated.”
Although he said he is aware the case is “highly emotional and highly sensitive” for the community, Adams said he believes the information police put in public court documents is designed “to make Mr. Ware look as horrible as possible in the public’s eye.”
Gray said the affidavit in question was not written by anyone in his office and also said Brian Martin, an attorney representing Ware’s co-defendant, Matthew Hall, agreed with his request to stop the footage from going public while the case is pending. Hall is charged with being an accessory to murder and of being an accessory to shooting with intent to kill, neither of which iseligible for capital punishment.
District Attorney Steve Kunzweiler has not yet asked for Ware to face the possibility of a death sentence, as those requests generally occur following preliminary hearings. But Gray said the death of a law enforcement officer while on duty is among the list of aggravating circumstances that can be used when asking for capital punishment.
“That said, like any other case, we’ll take a look at it,” he said. “We’ll evaluate it. We’ll discuss it internally, and then Mr. Kunzweiler will make a decision on whether to put his signature on a bill (of particulars) or not.” ’
Adams, for his part, said the case against Ware will likely be about the question of whether a jury agrees that the state has the right to legally execute him in what will be, in his view, an act of retribution for the killing of a police sergeant. He also accused the District Attorney’s Office multiple times of “playing politics with the death penalty” and of “gamesmanship,” citing past experiences he’s had while presenting capital cases in Tulsa County at trial.
“There are people in our community that are crying out for his blood,” Adams said of Ware. “There are people in our community that would like to see him die. And what I would suggest and ask people to think about, with everything that’s going on in our community today, with everything that’s going on in the world today, do they really think that more bloodshed, OK, that more violence, OK, is going to bring us all together?
“This is a horrible event. It’s a horrible thing. And I don’t approve of the acts of Mr. Ware on that morning, OK? But I also don’t agree that it’s gonna make anything better for the state of Oklahoma to get to kill him.”
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