Molester’s sentence leads to cries of injustice
By Kandra Wells
Staff Writer
Kathryn Cole considered it harmless horseplay when her granddaughter, who had just turned 5, reached over and touched her breast during a dinner at her home last September.
She corrected the child’s behavior anyway.
What the girl said next revealed a horrible secret that later would garner national headlines involving the granddaughter, her year-older brother and the man who was their baby-sitter.
“Gramma, it’s OK,” the girl said, according to an account the grandmother gave police. “David Earls touches me there.”
David Harold Earls, 64, a twice convicted felon, had watched the children during weekends while their mother worked.
He recently admitted raping and sodomizing the girl in return for serving one year in the county jail, with credit for time he has already spent behind bars since his arrest nine months ago.
Judge Thomas Bartheld ordered the sentence under a plea bargain agreement recommended by Earls’ lawyer and Assistant District Attorney Lisa Birdwell.
The agreement has touched off a major controversy over criminal justice in McAlester, including calls for the removal of the judge from office. The state attorney general has also launched an inquiry into the case.
Actually, the judge imposed a sentence of 20 years in prison, but he suspended 19 of those years. He also fined Earls $1,000.
“Some people think I could have given a different sentence, and I couldn’t,” said District Judge Thomas Bartheld. “In any plea bargain, where there is a negotiated plea, the court can’t change it.”
Nonetheless, talk show hosts, politicians and ordinary citizens have bashed the district attorney and a judge for going too easy on Earls.
Earls was initially accused of victimizing both the girl and her brother. But the charges involving the boy were dropped before Earls was scheduled to go to trial.
The children’s mother blames herself for what happened to her children, and says she’s moving the family to another state as soon as possible.
“They’ll never forget what happened to them,” she said.
The mother first met Earls in 2007. She said she felt uneasy about him watching her children and tried to look up his past on the Internet. She found only “something minor” and a protective order involving a former wife.
What she didn’t find were his convictions for shooting a man in 1982, or stabbing a woman in nearby Weleetka nearly 13 years later. She also didn’t discover that Earls had been in prison for six-plus years.
Nearly a month after he admitted to raping and sodomizing her daughter, the mother seemed surprised to learn Earls had spent time in prison.
“No. I didn’t know that,” she said.
The mother said Earls began baby-sitting her children last summer. He watched them over three or four weekends at the family’s modest brick home in a public housing neighborhood in McAlester.
The mother said she had no knowledge of what Earls was doing until her children told their grandmother.
Police records confirm the girl showed her grandmother how Earls would twist her nipples. She also described how he raped her.
“It had hurt a little at first,” she told her grandmother, “until I got used to it.”
Police described the girl’s conversation with her grandmother in an affidavit they used to charge Earls after his arrest last September.
Though Earls was charged, the case never went to trial.
The mother watched as her children struggled to tell their story to police, judges and attorneys.
Her son tried to run from a courtroom three times while testifying in December. During a February hearing, her daughter climbed down from a witness chair, clambered over and under a table and even left the room at one point while being questioned.
She said her children were unable to recite what was legally needed, at the time it was needed, for Earls’ prosecution.
The grandmother’s account prompted police and prosecutors to initially file charges accusing Earls of forcing the two children to have sex.
The grandmother told police she asked her grandson if he saw Earls touch his sister the way she described. The boy laughed, according to the court document, and described how he also engaged in sexual activity with his younger sister.
“I told him that this was not funny, that what David had done was illegal, and that he could go to jail for it …,” she told police. “(The boy) then realized that what he’d done was wrong and acted as though he didn’t want to talk about it anymore.”
Special Judge Donnita Wynn dropped the charge after a two-day preliminary hearing in December. She agreed with a defense request to dismiss one of two sodomy charges.
“We did charge David Earls with what he did to the boy, but it was dismissed at the preliminary hearing,” said District Attorney Jim Bob Miller. “He recanted. He recanted his whole testimony.”
The mother said the hearing was frustrating for her family and prosecutors, but they still wanted to take the case to trial. Given her son’s changing statements, her daughter’s testimony took on heightened importance.
Miller said the girl, unable to testify at the preliminary hearing, became the focus of pre-trial hearings in February. Prosecutors hoping to try the case the following month needed to designate the girl as eligible to testify.
Over the course of a two-day hearing, the girl climbed down from the witness chair. She played around the courtroom and later the judge’s office, as lawyers and a clerk tried to ask her questions.
It was during the second day, Miller said, that she finally qualified as a witness and spoke briefly about what Earls had done.
Then under cross-examination, Earls’ attorney asked, “Do you remember what David Earls did?” She said, “I don’t remember David Earls doing anything.”
Under a plea bargain, Earls was sentenced to 20 years in the county jail, with 19 of those years suspended. He was fined $1,000 and ordered to register as a sex offender after his release.
The mother said she’s not bitter about the sentence. But Earls’ one-year jail term has provoked outrage in others. Fox’s Bill O’Reilly featured the story on his national cable talk show, criticizing Miller and Bartheld for giving Earls lenient treatment.
“A one-year sentence makes me want to vomit,” Rob Lebby, of Knoxville, Tenn., wrote in an e-mail to the News-Capital.
“Bartheld should be disbarred and Miller sent into disgrace,” wrote Henry Boenning, of Destin, Fla.
Reps. Mike Ritze, R-Broken Arrow, and Mike Reynolds, R-Oklahoma City, filed a non-binding resolution to be taken up next year that seeks the judge’s ouster.
It cites “gross neglect of duty” by Bartheld when he accepted last month’s plea bargain.
The resolution, which could be taken up in February, petitions the state Court on the Judiciary to begin impeachment proceedings.
Attorney General Drew Edmondson said he has directed his office to look into the case. Miller said he has been contacted by Edmondson’s office and is preparing a transcript.
“Frankly, they have told me they want to see all the facts like we did,” Miller said. “They’re not concerned about us doing anything wrong, or the judge.
“It’s just a couple of politicians in the state, raving and raving,” he said, “and they have absolutely no idea of what’s going on this case.”
Sen. Richard Lerblance, D-Hartshorne, said the attorney general and legislators seeking Bartheld’s removal will find little.
“One year, and 19 on paper, yeah, that’s kind of light,” he said from his law office. A general practice attorney, he doesn’t think any legislative remedy is needed in Oklahoma for sexual abuse cases involving children.
“A lot of times, there are a lot of underlying circumstances that goes into these plea bargains,” he said. “If you look at the legislation on the books now regarding pedophiles who sexually abuse children, I believe there is adequate punishment on the books that should take care of them.”
He said he disagrees with the legislators seeking the judge’s ouster.
Meanwhile, the mother and her children are moving on. Literally.
She said last week she is moving to another state and plans to go back into school in the fall.
“I want to get them away from this house,” she said. “And I want to start a new life.
“And hopefully get them some consistency, where they can learn to trust me again.”
She said she blames herself for what happened to her children.
“To this day, I’m like beating myself up for letting what happened to my kids happen to them,” she said. “I didn’t know any better, you know?”
She lost her custody of her children for a period of time. She took classes and went to counseling that she said helped her get a handle on life and her role as a mother.
But it’s still hard for her to talk about.
“I’m like, oh my God. I’m just, like, I let my kids … Oh my God. There’s just nothing more to say on that.
“They’ll never forget what happened to them.”
