Hello,Thank you for allowing us to assist you with this problem.
I wish to answer the questions but need to know in what state are the charges filed?
Please keep in mind my answer is solely based upon what you have shared with me since you are limiting the information.
May states do not require the DA to turn over all evidence just evidence the defendant would not be able to obtain on his own. However, since you stated you're not in such a state, then yes the DA would be in both an ethical and legal violation. Ethical rules require honest disclosure when asked during the discovery process and also often state rules of procedure require such disclosure.
Speedy trial is always a possible motion to dismiss when there is no good reason for the delay prior to the DA being ready to proceed with the trial. The issue here with the medical records depends upon whether it was truly the DA's fault such as ordering the wrong records, sending subpoena to wrong address, not requesting the records until the last minute or if it's more that the DA did everything right but the record holder/hospital just failed to comply.
However, the motion to exclude evidence because it was not turned over (motion in limine) is separate and different from a motion to dismiss on speedy trial grounds.
So you can give more details the State is Oklahoma. With this information can you tell what kind of violations the DA has committed?
As far as obtaining the medical records, the DA made no attempts to get the records with the first attorney. Defendant thinks this was due to very close relationship between his attorney and DA. The records were requested by first attorney in discovery motion. the defendant repeatedly asked attorney about the medical records and his attorney finally told him it was not worthwhile getting them and he should plead no contest. The defendant almost did this but before doing so decided to get another attorney. The new attorney tried a few things with no success so again the defendant requested him to get the medical records. After much delay the new attorney finally persuaded the DA to subpoena the records. Then the hospital objected and the DA had to get POA from family to give permission. This all took about 3 months more than a year after defendant was charged and still some key records are missing. So does this look like the DA was a fault here? Also is there some specific amount of time for motion to dismss due to no speedy trial in this particular case?
Forgive me is you already understand Brady requirements but I just want to make sure you know it. Brady v. Maryland, a 1963 U.S. Supreme Court decision which held that federal due process requires the prosecution to disclose favorable evidence upon request by a criminal defendant that is material to either guilt or punishment.
Brady requests must be made pre-trial in the State of Oklahoma through a proper motion requesting exculpatory material both in general form and with as much specificity as possible.
a prosecutor is constitutionally and ethically obligated to carrying out his responsibilities to promote public justice rather than private vengeance
-ABA STANDARDS, supra note 2, Standard 3-1.2(c)
Prosecutorial disclosure of Brady evidence is not automatic. Prosecutors are required to provide Brady evidence only upon a request. Just like in the Federal Systeme, Oklahoma does not set a specific time limit by which the prosecutor must turn over the Brady material so long as it is done prior to trial and within the judge's view at acceptable. A prosecutor may comply with his discovery and Brady obligations in several ways. A prosecutor may furnish the defense with allevidence specifically required by the rules of discovery, as well as all exculpatory and impeachment evidence the prosecutor believes is required to be disclosed under Brady. Some prosecutors may go beyond the strictures of discovery rules and furnish a defendant with the entire file of the case, including all potentially Brady evidence. Some prosecutors, alert to their Brady obligation, may seek the court’sassistance in determining whether and to what extent they are required to comply with Brady. Since a prosecutor’s Brady duty is a continuing one, a prosecutor is obligated—throughout the pre-trial and trial proceedings—to disclose Brady evidence when he learns about it, and is required to make a diligent search for Brady evidence in places where Brady evidence is readily available
Part Brady compliant is common and walks on the fine line of what is and is not ethical. Prosecutors have a continued obligation to comply with Brady even after the initial material is turned over. Yes I am saying that the prosecutor can claim he is legally compliant. The remedy that courts allow to the defendant would be an adjournment of the trial date if the new Brady material is not provided in time for defense to prepare for the case. Prosecutor are limited only by the pressures placed by the judge over the case. If the defendant could get the medical records than the courts would require the defendant to obtain them but if only the prosecutor could get the medical files then the court would force disclosure of the medical records even if it was a nonjury trial.
I practiced criminal defense law for over a decade so I have more than a little perspective on what is not fair and just in the judicial system. This is why I always tell people there are some cases where you truly need a lawyer and criminal law is definately one of those area. I'm not saying I disagree with you in that a year is excessive but it doesn't matter what we think but rather how much of a compelling argument that can be made and how much can you push the judge as a defense attorney to push the prosecutor to act.
What the defendant sees as a big ethical if not legal problem is the DA said in his compliance statement specificly in response to a specific requirement by the State to disclose "any reports or statements made by experts in connection with the particular case..." His response to the requirement was "All reports and statements related to this requirement have been provided to the Defendant." Again no medical records had been given to the defendant at the time he made that statement. So that statement was a blatant lie. Surely you cannot say this is legal or ethical can you?
I have tried my best to explain the sequence of events and requirment for Oklahoma but there just seems to be some communication break down.
I am opting out of additional communication because it fear it will just be a circular process without an end result.
Please do not respond to this email because that will delay someone else assisting you further.
I wish you the best with your efforts.
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