Former Tulsa judge lays out intricacies of death penalty trials

The Highlights
  • Former Judge Bill Kellough retired five years ago after eight years handling an all criminal case docket in Tulsa County.
  • His two death penalty cases ended in plea deals,
  • “In the case of Mister Ware, that aggravating factor is the killing of a law enforcement officer."

TULSA, Okla. — A former Tulsa County criminal docket judge who himself had two death penalty cases before him during his tenure on the bench explained to FOX23 News the intricacies and complex nature of a death penalty case.

Former Judge Bill Kellough retired five years ago after eight years handling an all criminal case docket in Tulsa County. His two death penalty cases ended in plea deals, one right before trial and one mid-trial in which the defendants chose to admit their guilt in open court in order to spare their own lives with a life without the possibility of parole sentence.

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“(Death penalty cases) are very rare,” Kellough said. “I think I tried 153 jury trials in those eight years. Probably seventy percent were murder cases, and just two death penalty cases.”

Kellough said the public needs to understand when looking at the current case against David Ware that while all murders are gruesome, horrific, and tragic, the law requires aggravating factors to be reached in order for a prosecutor to seek the death penalty.

“We have a statute that requires one or more aggravating factors,” he said. “In the case of Mister Ware, that aggravating factor is the killing of a law enforcement officer. You could also argue he has another factor of eluding arrest.”

A former judge himself, Kellough said the primary role of a judge in a case like this is to make sure everyone is treading carefully and in accordance with what is required by the law when someone’s life is at stake.

“Perfection is never required in law and in life,” he said. “But there’s no question that in a death penalty case, the procedures are very specific, you have to pay more attention than in any other type of case out there, criminal or civil. There are a lot of trip wires for a judge.”

He noted that even if the case appeared to go off without any problems, questions, or concerns, the State of Oklahoma automatically requires an appeal to be filed in a death penalty case so the process can be reviewed by the Oklahoma Court of Criminal Appeals.

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Kellough said the judge’s primary role in jury selection in a death penalty case is to monitor and ensure that a juror can accept the task of sentencing someone to death, life without parole, or life with the possibility of parole. If a juror or jurors cannot or do not feel comfortable giving that ultimate punishment, they should not be seated.

But Kellough also said he would always make sure the court reporter had enough clarity and the ability to get down every word that was spoken in case of an appeal.

“Court reporters exist for a reason. When the Court of Criminal Appeals sits down to look at the case, they can see exactly what happened,” he said.

While there have been concerns about how much pre-trial news coverage potential jurors have seen in print, broadcast, and online that could influence a juror’s ability to come into a trial with predetermined notions, Kellough said the public in many cases he presided over didn’t seem to follow even the most heinous of cases as closely as those who had a role in either the courtroom or newsroom covering it.

“Quite honestly in today’s multifaceted world that we live in I was surprised quite frankly of how many jurors came into my courtroom who had never heard a particularly notorious case that I had been following in the newspaper for about six months,” he said.

He went on to say people may have heard bits and piece of what happened, but they didn’t have all the details, and in many cases, jurors can express they are open-minded because they’re eager to hear all sides of the case and see all of the evidence for themselves. At times, a case can be moved out of the jurisdiction of the area where the crime occurred because there is such an emotional impact on the entire jury pools such as the Oklahoma City bombers having to be tried in Denver, Colorado where a fairer jury could be found. Kellough said though the shooting of two TPD officers elicited an emotion in many in the community, it was not at the level that would question Ware’s ability to get a fair trial in Tulsa County.

Because of the increase in technology and the loads of information just about the Ware case that has been posted online and on social media, FOX23 asked Kellough how judges and attorneys trusted jurors not to do outside research. He said in his eight years on the bench, he noticed a change in attitude in nearly everyone on a jury once sworn in.

“They know this is serious. They know someone’s life is a stake even if it’s life without parole and not death. You can sense that they know this is their civic duty, and they take that and their oath seriously and look at the case fairly when things get underway,” he said.

Oklahoma does not sequester jurors in long trials in places like hotel rooms without TVs, computers, or phones like other states can. Kellough said it’s mostly for the cost, but secondly, it is because how serious jurors have taken their job previously that has lead to a trust that the law and procedures of not doing independent research and talking about the case with others before deliberations are followed.

Find the latest information about the David Ware trial here.