Criminal Law Questions? Ask a Criminal Lawyer.
Hi. I will be my pleasure to answer your question today.Do you mean pay out of pocket?
Also, do you need a case specific to a particular jurisdiction?
You can reply to me using the box below and I will continue to assist you when I receive your response. Thank you.
I know that public defender does not have to pay for expert witness out of his own pocket. I mean the organization he is working with, in this case the Oklahoma Indigent Defense Sytem.
I don't have to have a case from a particular jurisdiction but a US Supreme Court case or one from Oklahoma would be especially good.
The situation is an indigent defendant was charged with vehicular negligent homicide (a misdemeanor in this state. The prosecution wanted to use an expert witness in the trial to prove the defendant was at least impaired when the accident happened. The defendant made a statement to the officer on the scene that he had fallen asleep due to being tired and the heat. (100 degrees and no air conditioner) The prosecution wanted to show that it was the thc in him that was the partial cause of his going to sleep. This they declared would show to the jury that that was "willful disregard for the safety of others" which was one of the elements to be proved.
There was a hearing the day before trial where the defense attorney made a motion to suppress any discussion of marijuana in the trial because he said it was more prejudicial than probative. There was only a trace amount of thc, 1.1 ng/ml. They argued back and forth and the judge was leaning toward not allowing the drug expert or any testimony about mj. The prosecution pleaded with him to wait until the morning of the trial and the judge could question the expert about what he was going to say. The defense went along with this. After hearing the testimony of the expert for the prosecution, the judge decided to let all testimony about the defendant having mj in his system in as evidence in the trial.
My point is the defense counsel did not have an expert witness to counter testimony of the prosecution's expert. The defendant had pleaded with him to get an expert a few days before trial and at the last day he knew he needed and expert claimed his department did not have any money to pay for an expert witness. He never attempted to petition the court for funds for an expert.
The defendant was convicted at trial. He appealed the sentence. The Appeal Court Judges unanimously affirmed the conviction and they also used the testimony of this expert witness for prosecution to affirm that his testimony and other evidence about mj use was admissable.
Had the defendant's counsel had an expert witness to counter the prosecutors witness It is clear that evidence would not have been allowed in the trial. In addition the officer on the scene said the defendant was not under the influence and he was not charged with that. With no talks of mj I am convinced the defendant would not have been convicted of negligent homicide.
The defendant is in the County jail now serving a 1 year sentence. He wants to file an Application for Post Conviction Relief. with a proposition of error of ineffective counsel. and the main point of ineffective counsel is he did not get an drug expert witness whatever method he was suppose to use. In the Application for Post Conviction Relief there is a request that says " List by name and citation any case or cases that are very close factually and legally to yours as examples of the error you believe occurred in your case." That's why I asked for cases that could help prove my point of ineffective counsel. I can add that a relative of defendant has already found an expert witness who would be willing to testify that that amount of thc has no effect on a person at all. He went so far as to say that the prosecution expert had made those statements that 1.1ng of thc causes a person to be impaired should be put in jail not the defendant. He knows the witness and said he was a disgrace to the toxicologist community.
Thank you for your response. The leading case on experts provided to indigent defendants at government expense is Ake v. Oklahoma, 470 U.S. 68 (1985) the text of which can be found here http://scholar.google.com/scholar_case?case=1904002630366313299&hl=en&as_sdt=2&as_vis=1&oi=scholarrThere is a scholarly article on Ake which can be found herehttp://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1337&context=wmborjIt is my understanding that the government payment of expert fees for indigent defendants is tied to the due process rights of the defendant to prepare his defense and fairly meet the charges against him. It would not be tied to the effective assistance of counsel, unless his counsel refused or neglected to seek funds for an expert from the court. In the circumstances you describe Ake is useful to argue that an expert was essential and a motion to allow funds for an expert would have been allowed (and the attendant time and opportunity), and further because the defendant's counsel refused and neglected to make the motion, the defendant was deprived of the effective assistance of counsel and his right to due process under Ake. Please feel free to ask any follow up questions.
You previously gave me a very nice case that support an argument for ineffective counsel. Can you also give me one that would support Miranda rights violations? In this case the defendant was not confined but was in a position that he felt he could not leave. One situation he was told to sit in the police care and write an explanation how the accident happened. The defendant wrote that he fell asleep due to the heat. The officer then took him to hospital to get blood test. This same officer about 4 months later came to his house and asked him to step outside to answer questions about the accident and also when he smoked mj. (a trace amount of mj was found in his blood) Both of these statements were key to the prosecution winning the case along with the prosecution drug expert testimony.
Thank you for the excellent rating.
Miranda warnings are required whenever a person in custody is subjected to either express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980); Miranda v. Arizona, 384 U.S. 436, 444 (1966).
It is unquestionable that the police asking the defendant to write out a statement at the scene of the incident and questioning him at his home constituted interrogation for purposes of Miranda.
Therefore, the issue is whether or not he was in custody. Berkemer v. McCarty, 468 U.S. 420, 442 (1984) is a good case for the situation you describe. The text can be found here http://scholar.google.com/scholar_case?case=1340354395100305765&q=miranda+custody&hl=en&as_sdt=4,37&as_ylo=2000&as_yhi=2013
A reasonable person in the defendant's position would not have felt free to leave and would have felt compelled, as did the defendant, to respond to the questions of the police. See Wong Sun v. United States, 371 U.S. 471, 486 n.12 (1963)("there is still the general belief that you must answer all questions put to you by a policeman, or at least that it will be worse for you if you do not.")
A question likely to elicit an incriminating response may assume a custodial character requiring Miranda warnings. United States v. Scott, 270 F.3d 30, 43 n.8 (1st Cir. 2001)
United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990)("In determining whether a suspect is ‘in custody' at a particular time we examine the extent of the physical or psychological restraints placed on the suspect during interrogation. . .").
The text of all these cases should be available at Google Scholar by inputing the case name as a search.
Please let me know if there is anything else I can help you with. In future if you want to direct a question to me, you can put "For MyraB:" at the beginning of the question and I will be sure to see it and respond.
Thank you very much for your detailed response. This information will be very helpful.
You gave some cases under the heading of Additional Cases. Two of the cases you have statements in quotation marks for example you wrote: A reasonable person in the defendant's position would not have felt free to leave and would have felt compelled, as did the defendant, to respond to the questions of the police. See Wong Sun v. United States, 371 U.S. 471, 486 n.12 (1963)("there is still the general belief that you must answer all questions put to you by a policeman, or at least that it will be worse for you if you do not.") Is the portion in quotation marks a direct quote from the case? That perfectly describes the defendant's position in this case.
There is a another statement where you wrote: A question likely to elicit an incriminating response may assume a custodial character requiring Miranda warnings. United States v. Scott, 270 F.3d 30, 43 n.8 (1st Cir. 2001)
On this one there is no quotation marks, so was this just your assessment of a key point in this opinion? This is exactly the position the defendant was in when officer came to his home and asked about what time he smoked mj. The police officer knew he was trying to get info that could be used against the defendant in trial. The defendant was not aware that he could refuse to answer the question.
In the Application for Post Conviction Relief there is a statement that says: "List by name and citation any case or cases that are very close factually and legally to yours as example of the error you believe occurred in your case." When it ask for "name and citation " Is the form asking for the name of the case like Wong Sun v. United States, 371 U.S. 471, 486 n.12 (1963) and a quote from that case that I beleive you gave:"there is still the general belief that you must answer all questions put to you by a policeman, or at least that it will be worse for you if you do not.")?
It appears that the defendant will have to complte the Application for Post Conviction relief himself. He is indigent but in this state, state assistance only goes as far as direct appeal.
The defendant has discussed with a relative before his incarceration the points he wants to bring up in post conviction relief, ie. ineffective counsel for not even attempting to get an expert witness and also failure to bring up the two occasions of Miranda violations even though the defendant brought these points to defense counsel"s attention.
The problem now is in this county jail the indigent defendant does not have access to a legal library or computer or any other legal help within the jail. Can a relative who is familiar with what he wanted to say fill out the form for him and get the form to him for his review and his signature? I noticed in a case Bound v Smith dealing with this issue with inmates that the court even allowed other inmates to assist in filling out the forms. The form has to be notarized. Can I assume that the jail has a notary?
Excellent information. The relative was worried abouty getting in some kind of legal problem if he assisted the defendant with the form.
One final thing, and I can ask this as a new question if you like.
The defendant requested very strongly for the trial lawyer and appeal lawyer to make a motion to suppress on the Miranda grounds for the two events where the police officer questioned him without Miranda rights. Both of the attorneys claimed the defendant was not in custody. The defendant argued he was in custodial custody because he was not aware that he could remain silent and that he was free to leave the situation either when he was put into police vehicle to fill out accident report or when police officer came to his house.
Even after reading the Miranda right information you gave it appears a person could argue either way on the point of the defendant being in custody or not. From your experience what do you think the chances of the judge buying the argument that the defendant was in custody for the purpose of Miranda?
The defendant has two propositions of error he is considering. One we believe is strong. That is the public defender attorney failed to get him a drug expert. The other is the Miranda rights issue. The drug expert issue seems to be strong but the Miranda not as strong. Do you think it would be better to go with the one strong issue or both of them?
In the proposition of error the defendant wants to focus most of his time on the hearing the day before and morning of the trial where the defense counsel tried to get any testimony about marijuana in defendants blood suppressed. He failed because he did not have an expert witness. Is it ok to focus on the pre trial hearing or is one required to use just information from the trial.?
There were some interesting events prior to even the hearing including a heated exchange at a meeting that included counsel, the defendant and his father between father of defendant and defense counsel about the counsel not being sure if he could get expert drug and medical witnesses. At one point the counsel told the father if he wanted to stay in the meeting he would have to "shut his mouth". The father was simply saying there was no way his son could win without these experts. In that meeting counsel also said he knew he needed drug expert but his organization or the state did not have any money for that now. (he is public defender) Is it possible to include any of this in the proposition of error?
The inquiry as to whether a scientific opinion is admissible focuses on the relevancy and evidentiary reliability of that opinion. The proposed testimony should foremost be reliable scientific knowledge that will assist the trier of fact in determining a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993).
The judge must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Among the factors a court should consider are whether the reasoning or methodology has been subject to peer review; can be repeated within a known rate of error; is generally accepted as valid within the relevant scientific community; and was developed using sound scientific methods – such as using control groups or large and unbiased sample pools. Daubert, 509 U.S. at 593-395.
If, under the circumstances, the defendant's attorney did not request a Daubert hearing, then you can add that to his list of errors.
In addition, if his attorney did not challenge the admissibility of the record and results of the blood test based on the Confrontation Clause and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) then you might want to look into that also. The admissibility would depend initially on whether the blood test had been taken for treatment purposes or at the request of the police to gather potential evidence. If taken as part of rendering medical services, the test results would not be considered testimonial. However, if taken at the request of police to gather evidence, then the results are considered testimonial and the person who preformed the analysis would be required to testify. The defense attorney, therefore, should have challenged the admissibility of the test result based on confrontation clause.
Here, is an article that might be useful http://policelegal.com/2010/10/22/medical-records-exempt-from-melendez-diaz-in-oui-homicide-case/
Please feel free to ask any follow-up questions.
Below is the beginning of the proposition the defendant plans to submit. I wanted you to see this part since it contains the information from the meeting 2 weeks before the hearing. The defendant is a little nervous about putting that portion in because there is no transcript but it was secretly recorded. He understands the law in Oklahoma allows this as long as he was part of the conversation but still fills uneasy about it. He does not know what he will say if judge asks how he remembered all the info. Here it is. Let me know what you think about the conversation.
Mr. Counsel was trial defense counsel. A key part of the defense strategy was to suppress any evidence about THC being in the Petitioner’s system. At a Motion In Limine Hearing dated November 8, of 2011, pg 2-3 of transcript, Mr Counsel made the following statement: "My understanding is the State of Oklahoma is going to call one or more witnesses to show that Mr., the defendant, had a level of THC, or marijuana, in his system
and there was a blood test that was taken following the accident. I don’t remember, off the top of my head, how long after the accident but it was same day. What I would like to ask for is the Court to not allow the State to present that evidence to the jury or to discuss that for the following reasons, that I believe that that evidence is mor prejudicial than probative."
To show where ineffective counsel began, the Petitioner will need to go back to meeting Oct 25, 2011. In the meeting were Mr.counsel, the Petitioner, and the Petitioner’s father. At beginning part of that meeting the Petitioner asked Mr. Camp if he was going to have a medical expert. Mr Counsel responded by saying no OIDS is not giving any experts and that there was not enough time to ask OIDS (Oklahoma Indigent Defense System) for a witness. He said last time he asked OIDS for an expert witness it took 10 months and this trial is next month. He said he would try to have someone come over from the drug court to testify about how the thc in petitioner’s system effected the petitioner or not. The Petitioner’s father asked Mr. Counsel if using the person from drug court would stand up in court since he was not an expert. Mr. Counsel said he did not know but that was what he was going to try. He further said that he was just telling us that OIDS was not going to give the Petitioner a drug expert and even if they did it would takes months for them to review the situation to make a decision and this case is set for trial in November (the next month). The father asked how the Petitioner could have a fair trial without expert witnesses. Mr Counsel said the case has been pending so long the judge says trial is set for November. There was some further discussion between Mr Counsel and father and Mr. Counsel finally told the father he could go hire some body else or keep his mouth shut. The father responded that he did not have to keep his mouth shut if his son wanted him there. Mr Counsel then went over to the son and said do you want to continue or not. He said he could not deal with Petitioner’s father. The father then said he would sit and just listen.
Although the detail is interesting, the relevant facts could be summed up more succinctly. The defendant doesn't need to use the whole conversation. The reviewing court will want to know that the subject of an expert was discussed two weeks before trial, and the extent of the conversation (such as that the defendant counsel revealed he had not requested an expert and would not do so, that OIDS would not be able to provide an expert two weeks before trial, and would have required advance notice of ten months, and there was not enough time to ask) and the result (counsel did not seek an expert from OIDS, did not seek funds for an expert, did not seek a continuance, etc. such that the defendant was deprived of a substantial ground of defense.) That the father was present could be mentioned but unless there was such a breakdown in the attorney-client relationship that either was unable to assist in the defense then counsel's argument with the father is not germane. Also, the reviewing court will want to know other information - when did suppressing evidence about the THC become a key defense strategy? I would expect it would have been early on in the case. How long had the case been pending? If the case had been pending for so long, why are they having this conversation two weeks before trial? When did the state disclose they would be using an expert? How many times had the defendant been to court where he may have had the opportunity to request funds? It seems the ineffective assistance may have started long before two weeks before trial where counsel knew an expert would be needed early on in the case and never sought to obtain an expert, and the defendant, not counsel, raised the issue two weeks before trial. If counsel works in an office where he knows obtaining an expert can take 10 months, then he should have asked for an expert 10 months before that conversation. Also, did a person from the drug court testify? and how did that work out? The defendant is entitled to effective assistance of counsel throughout the representation, not just only at trial. Please feel free to ask any follow-up questions.
Ok thanks. The defendant had a total of 3 attorneys. The first two he paid for. First appearance with attorney was March 2010. The first was trying to make deal with DA. He never could because it was a political thing. The person who died in the accident was a manager for family who was very wealthy and had lots of political pull in this community. The asst DA who started handling the case was also running for the off of DA. So no deal was never made. The attorney client relationship went down hill and the attorney resigned. The next attorney also tried to make a deal with no success. In the interim time the new attorney did get the medical records of the victim and found that there were many records missing, the primary physician had not called medical examiner as required,there was no autopsy, the body was cremated days after he passed. So with all these problems the defendant wanted to try and prove that there could have been an intervening cause of death. His second counsel told him he would have to have a medical expert and they were very expensive, he mentioned $20,000. The defendant was now out of money but wanted to go to trial. He asked if he got a public defender wouldn't they have to get an expert witness. The counsel said yes. This was in Aug 2011. A year and half had passed since he first appeared with counsel.
The public defender came on board Aug 2011 about three months before trial. The trial date was set for Nov the same day counsel was appointed by the judge. He knew right away the defendant's goal of trying to prove intervening cause of death. He also knew within a couple of weeks the prosecution was going to have an expert to show the defendant had thc in his blood. All the defense counsel's knew that right away and understood it could be a big problem.
After that meeting two weeks before trial the defendant sent attorney an email requesting an update on what he was going to do about getting expert witnesses and emphasising he would have no chance without them. Counsel did not respond to that email but defendant noted by viewing court website that at a bench docket Oct 31 with defense counsel and DA present defense counsel requested continuance so defense counsel could try to get funds from OIDS to fund hiring a medical expert. Defense Motion for Continuance was denied. Just this minute was posted on the site. There was no other information of what happened. But the fact is he did not request a drug expert only a medical expert. Maybe he was still planning to use the person from drug court. At any rate the person from drug court did not show up at the hearing or at trial. anyway two days later the prosecution filed a motion in limine to block any discussion that medical malpractice could have been involved. Now it is just a week away from trial. The hearing for motion in limine that was held on Nov 8 day before trial was suppose to be for the medical malpractice issue. But the defense brought up the idea that he wanted to suppress testimony of thc being in defendant's blood in that hearing and said he wanted to wait til morning of trial to discuss the medical issue to give him more time to review prosecutions case history on that subject. He had told the defendant he wanted to wait til last minute to bring up the idea of supressing thc evidence to really through the prosecution off their plan for arguments if he was successful.
So the day of trial The judge made his decision not to suppress thc evidence due to prosecutions expert testimony at hearing and the defense not having an expert. The judge also ruled for the prosecution on not allowing defense to mention anything about possibility of malpractice anytime during trial. So while the defendant was sitting in court waiting for jury selection to begin he was called out by defense attorney and informed that defense would not be able to use the malpractice argument and testimony about thc was going to be allowed. The defendant was then asked if he wanted to continue with trial or plead guilty. The defendant said he wanted to continue with trial.
You said: "A person can be denied the effective assistance of counsel whether he pays for counsel or not." Did you mean "cannot be denied..."
You also said: "..If the defendant did not have an expert at trial that could testify on the issue, it's understandable that the judge would not allow the defense." The defendant did not have a medical expert because the judge would not give defense counsel a continuance so he could attempt to get a medical expert via OIDS. This continuance was denied before there was a hearing,even before the prosecution filed a motion in limine to suppress any discussion on malpractice. Could some fault be put on the judge for not allowing a continuance for medical expert? It is doubtful that he would have allowed continuance for drug expert either just like defense counsel was saying.
You also said: "I also don't understand how the defendant not having an expert can be a basis in favor of allowing the prosecution's expert with regard to the thc level." I think the fact was the judge only heard evidence from the prosecution's expert. He did not hear any opposing expert testimony. The judge even said at the end of the hearing the reason he was allowing the evidence in to trial was the testimony of the prosecution expert witness and he was also told by prosecution they would have a witness to say the defendant had smoked mj the morning of the accident.(Accident occurred at 6pm) The defense argued that it did not matter what time he smoked it but did it have any effect on his falling asleep? The prosecution expert said it could cause him to be impaired and drowsy. the expert the defendant recently found says that amount of thc has no effect as far as impairment or drowsiness. If defense had an expert witness to say that, it would have made all the difference in the world because the defense did say he had the officer on the scene's statement and he expected him to say the the defendant was normal and was not under the influence or impaired and the defendant was not charged with DUI, or DWI. (And the officer said just that under oath at trial) So with another expert opinion the judge could have been swayed not to allow that evidence in. He was leaning toward not allowing it in until the testimony of prosecution expert.
You said "The response from defense counsel at that time should have been that the defendant would need the opportunity to get an expert and challenge the testimony because it was not reliable, it had no proven basis in fact and science. " and in a previous post you said:
"..Suppression should have been considered as soon as counsel knew the prosecution would seek to introduce the thc result, either by retaining an expert, seeking a Daubert hearing regarding the prosecution's expert, and/or challenging the admissibility of the hospital record. "
So where you said the expert's testimony had no proven basis in fact or science. Isn't the experts's testimony suppose to be based on fact and science? but now that I think about it the recent expert that we found did say there were no studies the came to conclusion of those of the prosecutions expert. He said it was all bogus theories.
(The judge actually told the expert what he was going to have to say at the hearing to allow evidence in to trial. He told him if you come up here and say maybe the drugs had some effect that won't be good enough. you will have to tell me it did cause some effect. and that's exactly what the expert did. And that is part of the transcript)
So now it becomes clear that seeking a Daubert hearing regarding the prosecution's expert would have been essential in this case. At the hearing the judge waived hearing anything about the prosecution expert witness credentials I believe he said in the interest of time. The defense did not object. (At trial the prosecution did establish his credentials but not at the hearing)
So would you say the key things to point out in the argument for ineffective counsel are: not having or attempting to get an expert drug witness and not requesting a Daubert hearing? (The state did have the nurse who drew the defendant's blood to verify hospital records at trial)
Thank you for your patience and helping steer me through a very complex (for me) situation. I think by focusing on the Daubert hearing there will be no need to go back to the meeting prior to hearing. What is your opinion?
Thanks for the new link. Very helpful info.
The father reviewed tape recordings of two other meetings with defendant and counsel and it was clear from the first meeting in Aug that the DA was going to try to link the mj to the accident. He even said if mj was not involved it would not be a negligent homicide but the DA also know the level was not high enough to be felony vehicular manslaughter.
By the second meeting in Sep he had developed strategy of using someone from drug court to testify at trial. He even made phone call to drug court to speak to someone during the meeting and asked what effect 1.1 ng thc would have. Whoever he talked to said that level was nothing and that a person could walk through a room where people were smoking mj and pick up that much. He said the drug court personnel were not experts by any stretch of the imagination but OIDS had no money to get an expert so he would subpoena the best qualified of the drug court persons to testify in court if needed. At this meeting he said he planned to have an oral motion of limine the day of trial to object to DA use of any testimony about mj. He said he would wait til day of trial so DA would not have a chance to prepare argument or get a better expert. but if the judge still allowed testimony into trial he would have someone from drug court to testify.
First off no one from drug court testified in hearing or trial. He knew from beginning they were not experts. It would seem that an attorney with 20 years experience would know they would not be allowed to testify or could they? But wouldn't it be not only ineffective counsel but also malpractice knowing not attempt to get an expert? And couldn't he have file a motion to dismiss case if judge did not give him extension of time to get expert or if the state truly had no funds for an expert?
Also, in the absence of an expert, defense counsel could have used and relied on learned treatises and articles to challenge or impeach the prosecution's expert. This would have been particularly useful in a Daubert hearing, but learned treatises are also admissible at trial. Just looking briefly online, here is an article by several experts in the field on the particular subject. http://www.scribd.com/doc/49435475/Marijuana-DUI-Report You may want to attach the report or a similar one as an Addendum to the Petition. The information was readily accessible.
A local lawyer has told me that if the defendant uses information in his application for post conviction relief from the meetings with attorney prior to trial, the defendant would probably have to testify at a hearing and he would have answer any questions the prosecution wanted to ask. Is this true?
Also, I didn't see your reply from last night, although it should have been at the top of my questions. XavierJD is correct. The state can never compel a person to testify against him or herself. However, because the meeting is not protected by attorney-client privilege because of the presence of the defendant' s father, the state could compel the father to testify with regard to anything that was said during the meeting, including incriminating statements or admissions that the defendant may have made.
Thank you for taking the time to give your opinions. On the Miranda issue it seems very clear by yours statements that the defendant in this case who was visited at his home by police officer and asked to step outside was not in custody even though the officer did come to solicit questions that could be used against the defendant and therefore miranda did not apply. It seems to me a very decietful thing to do by the officer. So it appears that the defendant should not waste time on trying to prove the Miranda issue. It will just be a lot of work for nothing.
On the father having to testify if called. the father doesn'f see that as a problem. There was nothing incriminating in three meetings except defendant admitted to smoking pot but officer who visited defendants home already testified to that in trial. Could the son now be charged in post conviction for smoking pot or possessing it if father is questioned about it? Also if the information about what happened at the meetings is not brought up in the application for post conviction relief there would be no need for father to testify would there?
Another thing is the defendant is planning on subpeonoing his former counsel to ask him why he did not get counsel to get him to say OIDS had no funds. What do you think of that idea?
The Miranda issue is a totality of the circumstances analysis, so it really isn't for me to say whether or not it is a good issue because I don't know all the circumstances, but from the circumstances you describe it does not appear to be a strong argument because of the custody issue. As far as how it affects the ineffective assistance of counsel argument, I still think it would have been wise to file a motion to suppress statements anyway. As I said before, it was a close question, especially having the defendant write out a statement the night it happened. I have never heard of anyone being charged with possession for something that he or she stated they had done in the past. I can't see that it would be a problem. In fact, they had a thc level, so they theoretically could conclude he possessed the substance at some point, but that isn't enough. And as you noted, he didn't say anything more at the meeting than what he had already told police. I just wanted you to be aware of what could happen with regard to testimony about the meeting. He doesn't need to subpoena counsel at this point. Have you considered contacting the public defender to see if he would sign an affidavit regarding the facts of the expert and decisions he made regarding an expert? Not accusing him of ineffective assistance, though I expect he would know what it's for, but just the factual basis for the argument. Courts are much more likely to consider the argument if defense counsel submits an affidavit that agrees with the defendant on the facts. You may want to ask. The worst he could say is no.
The defendant has not considered contacting counsel for affidavit. The relationship was very bad by end of trial. Counsel would not respond to any of the defendants calls or emails after the trial. He acted like a real jerk so I can't see him cooperating in any way. When would be the proper time to request the presence of counsel? Are you saying it would not be mentioned in the application that he plans to call counsel to testify? Would counsel possibly try to say negative things about the defendant? The father can testify if necessary. And if absolutely necessary the meeting were recorded. Defendant does not want to mention that unless absolutely necessary. He will not mention that in the application. He does plan to mention his father was present at meetings. What do you think?
On the affidavit, are you saying the defendant would let counsel know he was applying for post conviction relief and write out the facts of the meetings and request the attorney to agree that it is factual and ask him to sign it?
Maybe it would be better just to not have the attorney come at all or sign an affidavit. He is surely more skilled than defendant and he has been a part of the legal community for many years and has good relationship with the judge. The more I think about it, it would probably not be a good idea to subpeona the attorney. I can see that the affidavit would be a better way to go than testimony in court. But I think in this case neither one of them will work very well. What do you think?
On a previous post you gave me a link to a marijuana study by a group of experts. I am just getting a chance to read it. Just the first five pages completely refutes the the testimony of the prosecution expert in every way and agrees with the new expert we found.Thank you so much. We will be submitting that report as an addendum to the Application for Post Conviction relief.
I'm sorry I did not get back to you last night. I went offline after my last response.From the facts that you've described, including that defense counsel knew that the government would rely on an expert several months before the trial, and the hearing the day before the trial, and the trial itself, it may be that the defendant does not need either the affidavit of defense counsel or his testimony.Here is a case - it is federal that deals with similar issues in the context of a murder case. http://ocdw.com/pdf/20060626/RedElk.pdf It is instructive because it discusses the issues that appear to be germane to your argument regarding the expert testimony. From this case the defendant can determine the points to concentrate on.First, the defendant needs to state when the prosecution disclosed to defense counsel that it intended to rely on an expert and the extent of that disclosure so that it could be explored and met.If the prosecution did not disclose sufficiently, then defense counsel should have followed-up on the disclosure, either informally or requesting the court to compel disclosure. Either way, for purposes of the Petition, the defendant can conclude that defense counsel knew he would need an expert or something to challenge the expert at the time of disclosure. The OK rules of criminal procedure can be found here http://www.oklegislature.gov/tsrs_os_oc.aspx Title 22 sec. 2001-2002 (starting on p. 448).
The rules include §22-2002. Disclosure of evidence - Continuing duty to disclose - Time of discovery - Regulation of discovery - Reasonable cost of copying, duplicating, and videotaping.
A. Disclosure of Evidence by the State.
1. Upon request of the defense, the state shall be required to disclose the following:
a. the names and addresses of witnesses which the state intends to call at trial, together with their relevant, written or recorded statement, if any, or if none, significant summaries of any oral statement,
b. law enforcement reports made in connection with the particular case,
c. any written or recorded statements and the substance of any oral statements made by the accused or made by a codefendant,
d. any reports or statements made by experts in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, . . . .
Second, the defendant should include when the court required, if it did, that experts be disclosed. There should have been a preliminary hearing early on in the case where the court ordered a discovery schedule or that evidence be revealed by a certain date. If this date was not met, then that was an additional grounds for challenging the admission of the expert witness. I'm thinking defense counsel in the defendant's case did not request discovery sanctions such as that granted in the case above. Either this was because there was no discovery abuse or because he just didn't ask.
Third, defense counsel did not seek a continuance, did not request funds for an expert and did not retain and expert or have an expert at trial, although he had an opportunity to do so. This can be established from the record. Fourth, you can note that the court in the case above also mentions Daubert and how meaningful it is to have the opportunity to challenge expert testimony on that basis. The record in the defendant's case will also reflect that defense counsel did not request a Daubert hearing.
Fifth, the trial transcript would show that defense counsel did not present an expert, and possibly that he did not challenge the state's expert meaningfully on cross-examination, although there were learned treatises available that could have been used to impeach the expert and his conclusions. So, the only piece the defendant needs that might not be contained in the record is when defense counsel learned that the government would use an expert at trial.
In addition, the organization norml may be able to help you find scientific evidence you can use. I wouldn't use them as a primary source because they have a specific agenda and lobby. However, they may be a good resource for information you are looking for. Here is an article on the DUI drug laws and zero tolerance states. http://norml.org/library/item/you-are-going-directly-to-jail
Oklahoma is not a zero tolerance state with regard with regard to DUI drugs. See statute Title 47, sec. 11-902.
Please feel free to ask any follow-up questions.
Thank you for all of this valuable information.
You said: "In addition, the organization norml may be able to help you find scientific evidence you can use..." My understanding the article on thc and driving you linked me to that you called a learned treatise was based on science. Here is statement from that article "The panel’s primary objective was to develop, on the basis of scientific evidence on DUIC, recommendations for objective criteria that allow for meaningful and reasonably accurate determination of a driver’s impairment by cannabis.."
You said ".. learned treatises are also admissable at trial.." Is the judge the one who determines if it is a learned treatise? I am thinking the prosecution would have some objections if we submit this information with the application and also they probably would have objected if defense counsel would have tried to introduce it at the hearing or trial.
I have not had a chance to read the federal case yet that you gave me a link to. Maybe the answer is there.
Also since nothing the prosecution expert said is in line with scientific info from establised experts the forensic field. Could he be prosecuted for lying under oath? The new expert we found said what he said under oath was criminal but he had some immunity.
Thanks again for all of your help. I think you have gone far above and beyond the call of duty.
You said ".. However, the article I mentioned definitely fits the definition of a learned treatise, it was published in a reputable periodical and is co-authored by multiple scientists and experts in the field... " can you say what is the name of the reputable periodical this article was published in? I have read several studies on the WEB on THC and driving but the study you linked me to is by far the best. But all the studies I have read agree with this one. I have never read a study that says 1ng/ml of thc causes driving impairment. All of the articles I have read says it takes 3 to 5 ng/ml and they all said that under 2ng is the same as not having anything in person's system. This is why I was so astounded to hear the prosecution expert say what he said.
One final question. You said all the defendant would have to bring up from meetings was the fact that the counsel knew months before trial that the prosecution was going to have a drug expert. Will it be helpful or not to mention that he told the defendant he was going to have someone from drug court to testify. And that the drug court person told the defense attorney that 1ng was nothing?
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