Editor’s note: This story is part of Oklahoma Voice’s “Whatever Happened To …” end-of-year series that provides updates to some stories that captured the interest of Oklahomans in 2023 and 2024.
OKLAHOMA CITY — The Oklahoma Court of Criminal Appeals denied a third and final request to remove a judge from the major embezzlement case against the co-founders of Epic Charter School, potentially ending a dispute that has sidetracked the proceedings for months.
The appeals court decided Friday that it wouldn’t consider the request from defense attorney Joe White to disqualify Oklahoma County District Judge Susan Stallings because it wasn’t filed in the appropriate timeframe.
White, representing Epic co-founder Ben Harris, filed on Nov. 8 an uncommon third attempt to kick the judge off the case, accusing Stallings of unfairly favoring the prosecution. His disqualification requests had been denied twice in district court before he took the matter to the Court of Criminal Appeals.
The Attorney General’s Office on Dec. 13 said the case has become “unusually protracted” and urged the appeals court to dismiss White’s request.
More: Preliminary hearing in Epic Charter Schools case is on hold
There is no opportunity for further appeal beyond this stage, the attorney general’s spokesperson, Phil Bacharach, told Oklahoma Voice.
“We look forward to proceeding with the prosecution,” Bacharach said after the appeals court decision Friday.
White did not return a request for comment.
Appeals for judge recusals are rare
Most judge recusals are resolved in private. Few of these disputes reach a public hearing, let alone a second appeal. The Court of Criminal Appeals hasn’t ruled on a judge disqualification in the past three years at least, records of the Court’s decisions show.
White accused Stallings of being an “advocate for the prosecution” and contends her work history is disqualifying. Stallings worked in the Oklahoma County District Attorney’s Office while then-DA David Prater was investigating the Epic case.
The Epic co-founders, Harris and David Chaney, were charged in 2022 with designing a scheme to enrich themselves with millions of taxpayer dollars intended for the public virtual charter school.
Harris and Chaney deny any wrongdoing and contend their business practices were legal.
Stallings, the former head of the DA’s Domestic Violence Unit, said she was unaware of the Epic investigation until four years after she left the DA’s office to become a judge.
White said Stallings should have disclosed her work history sooner and accused her of being partial to her former colleague, Jimmy Harmon, who is now the attorney general’s lead prosecutor on the case.
White told the judge that her demeanor left him with the feeling that he is “fighting two fights” while in her courtroom.
He also contended Stallings should not preside over court proceedings in which her former boss, Prater, might testify as a witness. Stallings has said she would treat the former district attorney “like that of any other witness that comes into this court.”
On Aug. 15, Stallings denied White’s request that she step down from the case. White then appealed to the county’s chief judge at the time, District Judge Richard Ogden, who declined to remove her. Ogden said in an Aug. 30 hearing that he saw nothing that shows Stallings is unable to be impartial.
When White took the matter to the criminal appeals court, the AG’s office responded on Stallings’ behalf, contending the third disqualification request has no merit and was filed too late to be considered.
“These trivial grievances simply do not support (White’s) claim of judicial partiality, and they certainly do not mandate judicial disqualification,” the AG’s response states.
More: Layoffs, pay cuts affect hundreds of Epic Charter School employees
Unanswered questions
Two significant questions went unanswered in the case while the disqualification matter was pending.
First is whether prosecutors have established enough probable cause to take the Epic co-founders to trial. A preliminary hearing to review evidence and determine probable cause has been on hold since March.
Second is whether Chaney’s attorney, Gary Wood, will be removed.
The prosecution’s star witness, former Epic chief financial officer Josh Brock, has said Wood used to be his lawyer, too, and can’t cross-examine a former client. Brock filed a motion in May to have Wood and his law firm, Riggs Abney, kicked off the case.
Resolution of the judge dispute was the first step toward broaching the remaining uncertainties in the court battle.
The case against Brock, though, has progressed further than Harris and Chaney’s. Brock, who faces many of the same charges of financial crimes as Harris and Chaney, waived his preliminary hearing, was formally arraigned in April and entered a plea of not guilty.
Despite his initial not-guilty plea, Brock said he accepted a bargain with the prosecution that would guarantee him no prison time in exchange for his testimony against Harris and Chaney. Brock would later plead guilty and be a convicted felon under the agreement, he said.
The former CFO testified during the first week of Harris and Chaney’s preliminary hearing that he falsified invoices at Epic to justify the amount of money the school paid to the co-founders’ company, Epic Youth Services. He said some of these invoices charged the school for services the company never provided.
Brock said he and the co-founders followed a mantra of “minimize expenses, maximize profit” as they leveraged Epic to expand their business. That included relying on school employees to do work their company was being paid to do, he said.
He also agreed with prosecutors that he, Harris and Chaney took advantage of money that was not theirs to spend freely from the Learning Fund, a multi-million-dollar bank account intended to help Epic students pay for their online classes, technology and extracurricular activities.
The school paid into the account so the Learning Fund could dedicate $800 to $1,000 per student for learning or extracurricular needs.
Brock and the co-founders used the Learning Fund to make personal purchases, give political donations and fill their company’s operating account when it ran low, investigators and state auditors reported.
Harris and Chaney contend the Learning Fund could not be embezzled because it was an account that their private company owned.
The co-founders and Brock haven’t been affiliated with Epic since May 2021, when the school’s governing board cut all ties with them.
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This article originally appeared on Oklahoman: Court denies 3rd attempt to remove judge from Epic Charter case