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So if the defendant is indigent and can't afford an attorney and he does not want to testify about what he put in the application. What does the judge do just ignore what he said. In this state he can't get counsel for post conviction relief after the direct appeal unless it is a capitol crime.
The defendants father was there in the meetings and could testify that what the son was saying was correct. Will that help any?
Ok so he can use court records to show attorney never got an expert and previous Supreme Court and State Appeal court decisions to show expert is required to be effective counsel, right?
He also has an expert with very good credential willing to testify but he does not want his name and credentials put in the application until he gets $2000 retainer fee. The defendant wants to say something like" I have located an expert pathologist with Phd who is willing to testify against the prosecution witness and explain that 1ng of thc has to effect on a person driving or drowsiness. He will also testify that thc stays in the blood longer than 4 to 6 hours even up to days and or weeks depending on the person. This is directly opposed to the prosecutions expert testimony . However the the expert wants his retainer fee or some agreement that he will be paid before his name is XXXXX XXXXX the record. The defendant request that the state pays this needed expert since it failed to get him an drug expert for trial and this is the primary reason he is in jail today. The defendant is more indigent now than he was prior to going to jail. Do you think the judge will go for this?
Ok this sounds really great. So the defendant being pro se can ask the court to subpoena the trial attorney and at the hearing the defendant can ask his past attorney why he did not get an expert. Is my understanding correct.?
And the defendant can allege in his complaint that the expert will testify to what I mentioned in last post and that should be enough. Right? the defendant can also get a study from the web that is consistent with what the expert will say.
What are the chances the judge will have state pay for the expert since the defendant is indigent?
What should have happened in this case where the defense counsel alleged there were no funds for an expert? Would this have been grounds to file a motion to dismiss the case?
Great news. So with all this information what are the chances of defendant winning post conviction relief if everything is done properly as far as the application and hearing?
He also has two occasions where he was not given his miranda rights. One occasion the officer on the scene of accident had him sit in police car and fill out accident report where he admitted he fell asleep at wheel due to exhaustion and heat. The police officer then took him to hospital where he took a mandatory blood test for intoxicants.
The other occasion after his blood test came back positive for thc about 4 months after accident, the same officer came to his house and asked him to step outside to answer more questions about the accident. The officer also told him he the blood test came back positive for thc and asked defendant when did he smoke mj. The defendant told him the morning of the acciden before going to work. (Accident was about 6pm)
The officer told him he would probably be cited for traffic violations but DA charged him with negligent homicide. He was not charged with DUI or DWI.
Should the Miranda violations be added to the complaint. I understand he was not completely in custody but wouldn't this be custodial custody since the defendant did not feel that he could disregard the officer's instructions or questions. Or would the Miranda just dilute the strong case of not having an expert witness?
Ok but the officer did not arrest him at that time but a warrant was put out for his arrest a couple of months later. But it is clear the officer was coming to his house to get information that would be used against the defendant in court and it was. The officer's statement in court that the defendant smoked mj the morning of the accident was a very big factor in his conviction and the judge in the hearing said that statement along with the statements of the prosecution expert witness that his driving was impaired and drowsy due to mj use was the reasons he was going to allow the mj evidence into trial.
Would that make that make a difference in this case that the officer did not arrest him that day? Do you still think this info about him smoking mj morning of trial still inadmissable due to miranda?
You said in last post "..but if he came back 4 months later, at that time he was a suspect of a crime and was being questioned about committing a crime, so Miranda had to be given and failure to give Miranda was grounds to have the statement about smoking MJ that morning of the accident suppressed and thrown out."
I remember reading something like that before. Do you have any idea the opinion that this particular reason for applying Miranda came from?
Is that a part of the Miranda vs Arizona decision?
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