Published: June 05, 2009 10:56 am      

Fox investigative reporter tries to track down DA, judge during McAlester visit

Coming in Sunday's edition: Read all about what national commentators Geraldo Rivera and Bill O’Reilly have to say about McAlester and the tragic rape of a young girl whose attacker was sentenced to a year in prison.

Geraldo Rivera visited McAlester Thursday in search of answers to why a one-year prison term was handed down for a child rapist last month. And although he said he was able to visit with the victim and her family, a dogged search for the prosecutor and the judge in the case was fruitless.

Rivera and his assistant, Greg Hart, traveled to McAlester from his office in New York City for interviews, background and footage for a segment set to air tonight on the “O’Reilly Factor” on Fox News. The show airs at 7 p.m. and is rebroadcast at 10 p.m.

In McAlester, Fox News is on Channel 41 for Allegiance Cable Television subscribers, on Channel 205 for DishNetwork subscribers and on Channel 362 for DirecTV subscribers.

Last week, “O’Reilly Factor’s” Bill O’Reilly called for the resignation of District 18 Judge Thomas Bartheld for his handling of the David Harold E. Earls rape case.

As was 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. He was sentenced by Bartheld to a year in prison, with another 19 years suspended, following a plea bargain negotiated between Earls’ attorney, Tim Mills, and local prosecutors.

Thursday, Rivera said he was outraged by the sentence.

“I think it was one of the most appalling injustices that I’ve seen recently,” Rivera told the News-Capital on Thursday.

Rivera said he attempted to contact Bartheld, District Attorney Jim Bob Miller, and Earls and his attorney, Tim Mills, while he was in town this week. But he was either denied interviews or was unable to reach them, even though he traveled to Miller’s home, offices and courtrooms at the courthouse, and other locations in search of the participants. Earls, who is being held at the Pittsburg County Jail, denied a request for an interview, according to jail administrator Missi Eldridge.

The judge and the two attorneys all have defended their work on the case.

“In a case like this it’s difficult to get exactly what they want,” Mills said. “I am sure (Assistant District Attorney Lisa Birdwell) wanted to get this guy to spend his life in prison.

“There’s a lot of good work people do with child advocacy groups, with BACA (Bikers Against Child Abuse) and different groups out there. But sometimes, I don’t know if they just don’t understand the procedural aspects because of the way (the laws) are. And I am not saying laws are written wrong, or are right or poor.

“There is just so much discretion with the D.A.’s office. They have to take the facts as they are, and weigh them, and go from there.”

According to Mills, Earls’ plea bargain sentence was not unique.

“I would be willing to bet this type of thing has happened in all 50 states, and a tip was just made to these national news people that this happened here. But my guess is deals like this are made all over the country, almost daily.”

Mills also said last week’s broadcast on the O’Reilly Factor unfairly summarized the court case and Bartheld’s part in Earls’ sentence.

“It sounds to me like in a matter of a couple of minutes, they’ve just discredited all the good works (Bartheld’s) done and basically tried to ruin him over one case,” Mills said. “And I don’t think that’s fair at all.”

Rivera contends the case should have been presented to a jury by the District Attorney’s office, which instead opted to accept a plea bargain offer from Earls.

He also argues that Earls’ young rape victim did not have to confront Earls in a courtroom hearing, but was required to do so by Bartheld.

“All you have to do is use laymen’s simple logic,” Rivera said. “If this child had a toothache and couldn’t testify, if this child couldn’t speak the language ... I mean there are millions of ways the witness can be incapacitated and there are many, many other ways you can modify Sixth Amendment rights.”

The Sixth Amendment of the United States Bill of Rights deals with the rights of the accused in criminal prosecution, including the right of the accused to face his or her accuser.

“What happened here seems to us to be an act of supreme institutional insensitivity,” Rivera added. “It seems an archaic, lazy ... insensitive manner to treat the most fragile crime victims there are.”

Contact Kandra Wells at kwells@mcalesternews.com.