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MyraB
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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For Myra B. I have found and organization which accredits the

Customer Question

For Myra B. I have found and organization which accredits the State laboratory where the toxicologist performed the THC test. This toxicologist is the one whose testimony we now question. I was told by a high official with the accrediting company that I would need to send statements from the transcript that we disagree with and they would investigate same for accuracy (or not). I just called back to talk to him again but a secretary answered and said he would be out of town until Friday. I asked if my son would have to sign some statement or could anyone send in a complaint. She said anyone could make the complaint. I want to check with you because I know what I write will eventually get back to the toxiclogist and ultimately back to the local DA and I want to be careful not to appear to be acting as my son's lawyer. Everything is there in the Application for post conviction relief. Should I just quote from that and say "these are the statements from APCR which are quotes from the trancripts that I contend are not based on science...." In other words should I not say my son contends etc. How do I keep from appearing that I am representing my son as his attorney which of course would be illegal?

Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.
Hello again. I don't see anything wrong with you making the complaint, because as you stated, anyone can make the complaint, and obviously, you would have an interest because he is your son. You don't have to argue in the complaint, you can just submit a complaint and set forth the basis for that. What you may want to do is send a copy of the entire Application for Post Conviction Relief, and reference specific portions that you want the reviewing authority to focus on in a cover letter. You can just say something like: "Enclosed, please find a copy of the Application for Post Conviction Relief submitted by my son, [name]. The grounds for the Petition involve testimony from a toxicologist [name]. The Petition states . . . ." so that the Petition, and not you, is making the argument. You are just bringing it to their attention. Which is exactly what you are doing.

Let me know if you need any further information.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 3 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

I sent my complaint ,which was a summary of the PCR relating to the toxicologist's testimony, via email to a high level official with ASCLD/LAB, the accrediting organization. He responded in less than an hour saying they would review the complaint in accordance with their guidelines. I referred them to the Application for Post Conviction Relief on the court website where the entire application is posted and can be read.


 


I just talked to an investigator for ASCLD/LAB who I also sent a copy of the complaint. She said the board of directors will first review the complaint to see if it comes under their jurisdiction which could take days to weeks. Then if there is an investigation it could takes weeks to months to complete.


 


Have you had any experience with this type of thing? If they find the toxicologist's testimony was not in line with scientific evidence on the subject of THC wouldn't they have to notify the court of their findings?


 


 


 


 

Expert:  MyraB replied 1 year ago.

If this is a government lab and the investigation uncovers improprieties by the toxicologist who testified, then the investigators may have to reveal it to the court or to the attention of some authority because it would be deemed exculpatory evidence. If they are private, or the accrediting organization is private, they may not have to report. Your son would be able to bring any conclusions to the court’s attention in either case.

A case that might be analogous to this situation would be where during an investigation, a chemist at the Massachusetts State Lab was found to have falsified drug tests. In that case, the investigators brought the issue to the attention of the Attorney General, then provided a list of cases where the chemist performed tests or testified, then each defendant brought the individual case to the court for a new trial. So, it was a mixture of both the investigators reporting and each defendant following through on his or her individual case.

 

 

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 3 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.


You made this comment in your last post: "If this is a government lab and the investigation uncovers improprieties by the toxicologist who testified, then the investigators may have to reveal it to the court or to the attention of some authority because it would be deemed exculpatory evidence. If they are private, or the accrediting organization is private, they may not have to report.."

 

I think I have an extremely unique situation. The lab in question is a state lab. ASCLD/LAB, the accrediting organization, is private non profit organization. But our expert witness who choses to remain anonymous until he is paid, is an official from the state accrediting organization. He is the one who is saying the toxicologist is a criminal and should be in jail. Since he is an official with the state accrediting organization, doesn't he have an obligation to turn this over to attorney general without being paid to testify?

 

(The state law on the state accrediting organization says that if a lab is accrediting by ASCLD/LAB, they do not come under the control of the state accrediting organization.)

Expert:  MyraB replied 1 year ago.
The reason the state lab would be required to turn over the evidence is that the state, including any of its agents (police, prosecutor, state lab, etc.) is constitutionally required to produce all exculpatory evidence to the defendant. The state cannot legally withhold evidence favorable to the defense. However, if the organization is a private, non profit organization, then it has no legal obligation to inform anyone about possible exculpatory evidence.

In addition, the accreditation of the state lab likely is based on the procedures it uses for testing, record keeping, handling, etc., anything that has to do with the raw data produced, ie. the test results. It likely does not cover the interpretation of those results which is what is at issue here. But, you may want to check with the expert and organization to find out what exactly the accreditation covers. If it covers interpretation as well as analysis, then the accreditation of the lab may be in danger and there may be steps required to address a situation where it is discovered that the lab or analysts are out of compliance, which may include some requirement of public disclosure or disclosure to authorities.
Customer: replied 1 year ago.

This situation is very complicated. I do understand now what you are saying about any state agency has to turn over exculpatory information. I remember that now from studying discovery procedures.


But where things become really complicated is the expert who is willing to testify on behalf of the defendant is not just an ordinary toxicologist. We came in contact with him through a big law firm that was handling the civil case but the law firm was not obligated by the insurance company to represent the defendant in the criminal case. Years later we were able to locate this person who had given the big law firm some insight that the small amount of thc in the driver of the truck would not cause a person to be impaired. He did not have to write an official report because there was an out of court settlement and he did not have to testify.


 


I contacted this person and found he was he was a college professor and later found he was also a high level official with a state department which accredits labs and personnel for alcholol and drug testing for the state accept this one government agency ,The State Bureau of Investigation. which is accredited by ASCLD/LAB.


 


Now I understand ASCLD/LAB may not be obligated to turn over exculpatory information since they are a private organization but wouldn't the high level official with a state organization be obligated to do so since he has been made aware of the situation and says the State bureau of investigation toxicologist is a criminal.. And shouldn't he be obligated give his understanding to the court without the defendant or the state paying him a fee to testify in a hearing? He is willing to testify but he wants thousands of dollars.

Expert:  MyraB replied 1 year ago.

Thank you for the additional information.

Did the law firm represent the defendant in the civil case? Did the law firm retain the expert to give evidence in the civil case? Was the expert ever deposed? Are you sure he didn't write a report? Even when cases settle there often are expert reports and depositions and answers to interrogatories that may be available. If the defendant was ever a client of the big law firm (even if only in the civil case) he may be able to have access to what they have from this expert.

I am a bit confused about who belongs to what organization.

1. Your expert is a high level official with a state department. What state department? And what is his position?

2. Your expert is a high level official with a state department that accredits labs and personnel for alcohol and drug testing for the state except this one government agency, the State Bureau of Investigation, which is accredited by ASCLD/LAB?

3. The State Bureau of Investigation is the lab that the prosecutor's expert belongs to?

4. ASCLD/LAB accredits the State Bureau of Investigation?

5. Your expert does not have any affiliation with ASCLD/LAB?

6. Your expert does not have any affiliation with the lab of the prosecutor's expert?

7. Do you know why the State Bureau of Investigation is the only lab that is not accredited by the state department of your expert?

Please let me know. I just want to clarify so I can provide the best information. Thank you.

Customer: replied 1 year ago.

Did the law firm represent the defendant in the civil case? Did the law firm retain the expert to give evidence in the civil case? Was the expert ever deposed? Are you sure he didn't write a report?


 


Yes the law firm represented the defendant and the National trucking company in the civil case. I don't know if the expert was retained by the law firm or not. All I know is the one lawyer from the law firm who the defendant had contact with said this expert told him the level of THC in his blood would not cause impairment. The lawyer and the expert told me he never wrote an analysis. Neither the expert nor the lawyer said there was a depostion and their was no trial.The expert said he was disappointed when they told him he would not be needed. He thought it was due to his name and position that the other side decided to settle out of court because they would not be able to get anywhere with the drug issue. I am assuming he did not get paid anything. I think this is why he wants to get paid in advance before his name is XXXXX XXXXX


 


1. Your expert is a high level official with a state department. What state department? And what is his position?


 


I was trying not to get too specific but Oklahoma Board of Test for Alchohol and Drug Influence is the department and he is the chairman of that department.


 


2. Your expert is a high level official with a state department that accredits labs and personnel for alcohol and drug testing for the state except this one government agency, the State Bureau of Investigation, which is accredited by ASCLD/LAB?


 


Yes. that is correct. I have no idea why the Oklahoma State Bureau of Investigation is not accredited by the state accrediting organization. At first I thought they would be but after investigating I found out differently.


 


3. The State Bureau of Investigation is the lab that the prosecutor's expert belongs to?


 


Yes. That is correct.


 



4. ASCLD/LAB accredits the State Bureau of Investigation?


Yes. That is correct.


 


5. Your expert does not have any affiliation with ASCLD/LAB?


No he does not. He is the chairman of Oklahoma Board of Test for Alchohol and Drug Influence.


 


6. Your expert does not have any affiliation with the lab of the prosecutor's expert?


No. He does not. I asked him if OSBI was under his jurisdiction and he said no and he felt things with OSBI labs would be better they were under his departments control. (ie a toxicologist would not be giving false testimony under oath.)


 


7. Do you know why the State Bureau of Investigation is the only lab that is not accredited by the state department of your expert?


No. I have no idea. (I should say it is the only one I am aware of.) I am beginning to think that ASCLD/LAB might be less strict (although their guidelines on their website are very strict.)There is clearly some relationship between the state legislature and ASCLD/LAB because the law concerning the establisment of Oklahoma Board of Test for Alchohol and Drug Influence says that if a lab was accredited by ASCLD/LAB then Oklahoma Board of Test for Alchohol and Drug Influence had no authority over that lab. ASCLD/LAB was also in existence some years before the state organization.


 

Expert:  MyraB replied 1 year ago.
Thank you for the clarification and information.

I would like to look into this a bit further. I have an idea where this can go, but I want to make sure that there's some legal, and not just logical, support for it. I will get back to you on this early tomorrow, if not before then.

Thank you.
Customer: replied 1 year ago.


Ok. Thank you.

Customer: replied 1 year ago.


One more thing I want to mention is Oklahoma State Bureau of Investigations has 5 labs located in different parts of the state All of them are accredited by ASCLD/LAB. Also both ASCLD/LAB and Oklahoma Board of Test for Alchohol and Drug Influence have someone from Oklahoma State Bureau of Investigation as a board of directors member. ASCLD/LAB also has some one from the FBI who is a board of directors member.

 

Two other labs in Oklahoma are accredited by ASCLD/LAB and they are in the two largest cities in Oklahoma, the Oklahoma City PD and Tulsa PD labs.

Expert:  MyraB replied 1 year ago.

Good morning. Thank you for the additional information and for your patience.

The situation you describe is extraordinary and a bit complicated, but this development can be broken down into three basic arguments that you can use to supplement the Petition for Post Conviction Relief, and to try to obtain the expert’s testimony as a matter of right.

Brady Violation:

First, as you and I both know the prosecution has a constitutional duty to disclose material exculpatory evidence to the defense under Brady v. Maryland. For a Brady violation, the withheld exculpatory evidence must be “material.” Exculpatory evidence is material if there is a reasonable probability that the defendant’s conviction or sentence would have been different had these materials been disclosed. Your expert’s opinion would certainly qualify as material based on the arguments contained in the Application for Post Conviction Relief.

Under Brady the prosecutor has the duty to inquire and learn about Brady evidence, including impeachment information, that is “readily available” or is known to others who are acting on behalf of the government (“constructive possession”). . Kyles v. Whiteley, 514 U.S. 419 (1995); U.S. v. Risha, 445 F.3d 298 (3rd Cir. 2006).

In Kyles v. Whiteley, the court defined “constructive possession” to mean that although a prosecutor has no actual knowledge, he should nevertheless have known that the material at issue was in existence. The issue to be determined is whether the prosecutor knew or should have known of the materials even though they were developed in another case.

The weakness in the constructive possession or constructive knowledge argument is that here the State Accrediting that your expert directs may not be considered part of the “prosecution team” and prosecutors are not obligated to learn of all information "possessed by other government agencies that have no involvement in the investigation or prosecution at issue." Risha at 304.

Nevertheless, the issue of constructive knowledge is determined on a case by case analysis based on the following factors: (1) whether the party with knowledge of the information is acting on the government's "behalf" or is under its "control"; (2) the extent to which state and federal governments are part of a "team," are participating in a "joint investigation" or are sharing resources; and (3) whether the entity charged with constructive possession has "ready access" to the evidence.

Based on these criteria you can make an argument that the prosecutor should be charged with constructive knowledge of the opinion of your expert who was Chairman of the OK Board of Testing.

In addition, because of the unique circumstances presented here, you can make the further argument that the State Board Chairman was on notice that he needed to provide the prosecutor with the exculpatory evidence, and that withholding the evidence is chargeable to the prosecution. He was aware there was a pending criminal charge against the defendant based on his THC level and he had evidence that he knew was material to the charge. Had the defendant been informed, he could then have subpoenaed the expert for his testimony. In addition, the prosecutor would have been alerted that the prosecution’s expert was committing perjury (at worst) or was incompetent (at best). Another argument can be made that she did know the testimony was bad by doing an reasonable inquiry that would have revealed impeachment information at the least.

Ineffective Assistance of Counsel

This argument may be stronger than the Brady violation and ends up in the same place. Counsel should have inquired of the attorney in the civil action if he had retained an expert and who that was. It just makes sense to find out if there is already a usable expert that can testify rather than searching for a new one who would need to start from scratch. After consultation he would have learned that your expert works for the state. He could then have informed the prosecution of what this expert would be prepared to testify and that the prosecution’s expert was incompetent and a criminal. If the prosecutor continued to rely on her expert, defense counsel could have subpoenaed your expert to impeach the credibility of the prosecutor’s expert.

Newly Discovered Evidence

Since the prosecution did not inquire, and the Chairman of the OK Board of Testing failed to reveal evidence he held, and defense counsel failed to reasonably investigate, this is all new evidence. At this point, you may subpoena your expert for testimony relative to the Petition for Post-Conviction Relief. The basis would be to establish the Brady violation, and support the ineffective assistance of counsel claim and explain why this is newly discovered now. The expert's actual opinion would be a tiny part of his overall testimony. His testimony would be needed more to establish the lost opportunities and the failures of defense counsel, the prosecutor and the expert himself in disclosing the information. And even if these additional arguments aren't successful, the defendant will have succeeded in bringing the expert's opinion before the judge for consideration.

Customer: replied 1 year ago.


Thank you for your comprehensive answer.This will be very helpful in the overall argument. One thing you mentioned was: "He was aware there was a pending criminal charge against the defendant based on his THC level and he had evidence that he knew was material to the charge. Had the defendant been informed, he could then have subpoenaed the expert for his testimony..." The chairman claims he was not aware of criminal charges. The criminal charges did come months after the civil charges. He seemed to be suprised that the defendant was charged criminally since the civil case was settled out of court. He made a point that they settled out of court so they could hide their criminal(referring to the prosecutions drug expert) He said if he had testified in civil case his testimony could have been used in criminal case. (You have also explain that as well.) So this is very strange situation. Seems like he would have volunteered to testify especially with his position with the state. He also felt it was a great injustice, my son being in jail based on prosecution witness testimony. But we will try to get the money from the state to pay him. How do you think the state will deal with that since he is already on the state payroll?


 


A little more history. The defendant's first lawyer was aware of the expert and he had mentioned to the defendant that the expert did not do an analysis but he(first lawyer) had the experts resume. But the first lawyer wanted the defendant to plead guilty on a blind plea. After some disagreements about how he wanted to proceed, the first lawyer quit. We went to a second lawyer. He also was wanting to make a deal with prosecution. The defendant considered it but prosecution would not give an inch. They would not move from the full one year jail sentence.Months had passed by and by this time we had lost all memory of the expert in the civil case. Since the prosecution was not willing to compromise the defendant decided to go to trial since he had nothing to lose. He was out of money by this time so he was able to get a court appointed attorney. Defendant had asked the second lawyer if he got a court appointed attorney wouldn't he have to provide expert witnesses. Second attorney said yes. At the time the defendant wanted to argue that mj should not be allowed into trial and also there were serious procedural problems with the way the hospital, especially, the attending physician, handled the victim. and he possibly could have survived if things had been done properly. So the defendant was looking for two experts and ended up with none. The court appointed attorney was too lazy to want to get involved with the medical issues so his focus was on just the mj issue. the prosecution also blocked him from bringing up any medical questions in a motion in limine hearing.So that brings us to where we are today. Just focusing on the fact that he did not provide a drug expert.

Expert:  MyraB replied 1 year ago.

Thank you for your response.

It is difficult to believe that your expert would be surprised that there were criminal charges brought in a case of a motor vehicle accident involving a death. Criminal charges of some sort would be the norm in that situation. It may be that he is protecting his interests and position. But, be that as it may, his testimony now should be available to the defendant without having to pay. In fact, being that he is employed by the state and has this information, continuing to withhold the evidence under the circumstances is bordering on extortion. I don't believe that he has much choice in disclosing the information. At this point, I don't see him in a position that is any different than a fact witness that would be subject to subpoena. It's his prior knowledge of the civil case and his prior review of the very issue that is challenged in the criminal case that puts him in this unique situation. He had already performed the work, and formulated and rendered an opinion based on his review. Granted his testimony would touch on interpretation of test results and opinion, but the general conclusion that the prosecution's expert's testimony was unscientific and invalid is within the area of work that he performs for the state. It is likely he would be expected to testify as to his knowledge without any further payment from the state.

Also, in my experience experts usually don't perform work in a civil case without a retainer, so it is likely that he did receive payment for work in the civil case, especially where the insurance company was providing and paying for the defense. There really would have been no reason not to pay him.

As far as the defendant's trial attorney, he dropped the ball in so many ways, and not investigating and following up on the expert that was readily available and willing, possibly even eager, to testify favorably to the defendant, is another failure to add to the list. However, any issues involving alleged medical malpractice of regarding the treatment of the victim would likely not have helped the defense as such malpractice is considered a foreseeable consequence and would not constitute a separate cause.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 3 other Criminal Law Specialists are ready to help you
Expert:  MyraB replied 1 year ago.
Thank you for the positive rating.

I just wanted to bring something to your attention because I thought it might be useful in your case on the issue of the expert's opinion of the effect of the THC level. After the verdict in the George Zimmerman case and while I was reviewing the facts and reading news articles regarding the case, I came across the fact that in the autopsy report it was noted that Trayvon Martin tested positive for thc at 1.5 ng/ml, and there are many reports available from various experts, used by the media and identified, explaining that this level of THC indicates nothing and would not have affected Martin in any way. For example, "Carl Hart, associate professor of psychology at Columbia University and author of a leading college textbook on drug use and behavior, put it this way: “THC in blood or urine tells us nothing about the level of intoxication. That would be like someone going to have a beer some evening, and when he goes to work the next day, you can find alcohol metabolites in his bodily fluids. That says nothing about his functioning.”" The article can be found here http://www.celebstoner.com/news/celebstoner-news/2013/07/11/trayvon-martin-and-marijuana/
but there are dozens of articles stating the same thing regarding the level of THC which was higher than that in your case.

You may be able to rely on the overwhelming documentation of opinion, or attempt to contact the identified experts to support your argument. I just wanted to bring it to your attention, in case it might be useful to you.
Customer: replied 1 year ago.

Thanks for the extra information. I had heard on news that there was thc in Trayvon's blood but never heard level or affect. I read the article you recommended and it supports everything I have learned about thc from various studies.

I talked to my son yesterday by phone and he was having a difficult day. He said he was going stare crazy and just wanted to get out of the jail. We talked for a while about the case and various things and he settled down. I saw him today and he was feeling much better. If a person is in a 10x 6 cell for 20 plus hours a day with another inmate, I am sure you can imagine how horrible that is for a person who has never gone through anything like this before.

 

I emailed the executor director of ASCLD again last night and told him about my son being in that small cell for 20 hrs plus a day and reminded him of my complaint and said the reason he was there, in mu opinion, was due to erroneous testimony under oath given by a toxicologist in lab accredited by his organization. I asked if he or any of his staff could direct me to the study that says 1-1.5 ng/ml of thc causes a persons driving to be impaired as stated under oath by the toxicologist. I explained I have searched the web and have found no studies to support what their expert testified to under oath.. I finally asked him to please let me know what they would be doing about the complaint as soon as possible. He has not responded yet. I thought if I could let him know that a young man is sitting/laying in a cramped jail cell 20 hours a day waiting for them to do something might motivate them to move a little faster.

 

What federal agency could I go to above this accrediting organization if they don't do anything or just drag things out for months and months? Would it be the Department of Justice?

 

I just received this email from the executive director:

 

"I am certainly sensitive to the anxiety that your son’s incarceration is causing for you and your family. ASCLD/LAB is currently in the process of looking into this matter and will move forward as quickly as is possible with volunteer support. Ms. Y's response was accurate in that it may take a few weeks before ASCLD/LAB is able to take a position on this matter. You must be aware that ASCLD/LAB will not have any authority to cause a release for your son. That is a legal process that must be dealt with by court officials.

I can only promise you that we will move forward with our process as quickly as reasonably possible."

So this is very encouraging and I sent him an email saying so.

 

 

 

Expert:  MyraB replied 1 year ago.
Hello again and thank you for the additional information.

I started looking into who oversees ASCLD/LAB to find out who you might be able to appeal/complain to should they drag their feet. I note that you updated the original post including the director's response which does seem hopeful in both content and the speed of the reply. However, I wanted to bring this study of ASCLD/LAB to your attention because it seems in this case things get curiouser and curiouser. http://gritsforbreakfast.blogspot.com/2012/03/is-ascldlab-crime-lab-accreditation.html

This is not to suggest that your director is not genuine in his investigation. He may be even more so, as a result of the report and in light of the history of scandal and disclosure of discrepancies at other labs accredited by ASCLD/LAB. But, the report is certainly relevant and interesting to note. Also, this story about the possibility of a civil suit when your son's criminal case is behind him. http://www.npr.org/2012/11/20/165579898/forensic-crime-lab-scandals-may-be-due-to-oversight

As far as oversight, ASCLD/LAB is an independent organization. The ASCLD/LAB accreditation program is recognized by the InterAmerican Accreditation Cooperation, which covers North and South America, and the International Laboratory Accreditation Cooperation, who send teams to observe the conduct of accreditations. So, these are potential entities that you could appeal to for further investigation.

In addition, the Attorney General has a Citizen Complaint Form that you can use if the ASCLD/LAB investigation does not prove satisfactory. You could even submit a complaint now. http://www.oag.state.ok.us/oagweb.nsf/0/e895944cf2232787862578530064f590/$FILE/agcomplaint.pdf The Attorney General would have the authority to investigate further.

You seem to be on the right track and it's always good to remind those who have control and influence in the testing and analysis in criminal cases of the actual lives of the people that are affected, especially as illustrated in the cases where evidence was mishandled and as a result of the incompetent expert testimony submitted in your son's case.
Customer: replied 1 year ago.

This information is truly incredible. Thank you very much. I thought there might be some problems with ASCLD/LAB when I saw so many law enforcement persons on the board of directors. Hopefully the executive director has learned from past bad experiences. He made this comment in his letter".. ASCLD/LAB is currently in the process of looking into this matter and will move forward as quickly as is possible with volunteer support.." Have any idea why he is using volunteers when they have an investigator on the staff?


Also you mentioned there could possibly a civil lawsuit once everything is over. The defendant had thought about suing the state for wrongful imprisonment if he is ultimately found not guilty or case is dismissed. I noticed in the one article where the man was falsely imprisoned for 17 years he was suing people from the lab. So if it turns out that the toxicologist did make false statements under oath can the defendant file a lawsuit against him personally and maybe the supervisors of the lab and the state in general?

Expert:  MyraB replied 1 year ago.
ASCLD/LAB uses volunteers for internal audits and investigations who likely report to the investigator they have on staff. I came across that as I was researching yesterday and I'll try to locate that again for you.

Your son will likely be able to sue the toxicologist and maybe the lab as the toxicologist was employed by them, he was giving testimony as an expert from the lab and using his affiliation to support the credibility of his testimony. When suing for a monetary judgment you always look for the "deep pocket" meaning where the money is and sue as many defendants against which you have a viable claim.This seemed to be what the person in the article was doing.
Customer: replied 1 year ago.

You mentioned in a previous post "..In addition, the Attorney General has a Citizen Complaint Form that you can use if the ASCLD/LAB investigation does not prove satisfactory. You could even submit a complaint now..."


I am seriously considering filing a complaint with the AG. I was thinking of attaching emails back and forth with ASCLD executive director and also possibly mentioning this was a highly political case and it is conceivable the district attorney and assistant DA, who both handled this case, knew that the expert was giving false testimony. What do you think of that idea?

Expert:  MyraB replied 1 year ago.

Thank you for your response.

I believe you have the basis for a complaint against the prosecutor's expert, the lab, the ASCLD and the prosecutor. The basis of all the complaints is that the testimony that the 1.1 thc level was sufficient to cause impairment at the time of the accident is not scientifically supported. And the more I look, the more I find to support just the opposite - that it would have had no effect and indicated merely a residual reading.

The information on the thc level is out there and is readily available. The prosecutor had some duty of diligence not to rely on an expert who either told a flat out lie or was completely incompetent. She could have double checked, gotten a second opinion or simply did an internet search. It seems she could have picked up the phone and even called your expert at another state agency. However, it's difficult to say whether the prosecutor's involvement was negligent or intentional. It would be difficult to argue at this point that the prosecutor knew that the expert was giving false testimony, although it is certainly possible that she could have known. Like the prosecutor the lab and ASCLD may have been lax and allowed the expert to testify as he did. However, they may not have been aware of the substance of his testimony before he testified.

The expert, however, is held to a higher standard because he is the one under oath and testifying and he is representing himself as an expert, so he can be charged with knowing exactly what he was doing and that there was in fact no research, reports or science to back up his testimony. The case against him for perjury and intentional fabrication is far better. The bulk of the fault for this fiasco falls on him, unless the prosecutor is guilty of suborning perjury and convinced him to do it.

That said, you can present your complaints to the AG, and explain the political context and pressures on the prosecutor to obtain the testimony she needed to get the conviction she wanted. However, before you file any complaint you will want to keep in mind the effect that a complaint of this nature would have on your son's pending application. This kind of attack may cause the prosecution to double down and more fiercely defend what was done because such a complaint would threaten not only the verdict and judgment, but the professional reputation, licensure and livelihood of the prosecutor and expert. Allegations of the sort that you are contemplating (and which may be true, and even more so if they are true) would be aggressively defended at every opportunity.

Customer: replied 1 year ago.

Thank you for the information. I appreciate your concern about how the prosecution might come down on my son more strongly but they are going to come down as hard as possible no matter what. You should have seen the prosecutor at the motion to suspend sentence. She was practically foaming at the mouth she was arguing against my son so strongly. She even recommended to the judge that the judge take away all of my son's good time and not let him have any opportunity to accumulate good time. This has been their attitude against my son from the very beginning of the case. And it was her boss the DA who originally brought these charges against my son and took a hardline against him in the very beginning. He left the case to her once he was promoted to DA but they maintained their hardline attitude.So I think going to the AG will be a chance to even the score a little. (I filed a complaint against both of them with the Oklahoma Bar association before the trial back in 2011. My complaint was primarily that the DA was out of control and politically motivated and handled this case differently than he handled similar cases. I brought up several good points to prove my case. They had the DA respond to my complaints but at the end did nothing to him. My complaints against the assistant were less strong something technically wrong that she did and I complain she was following in the footsteps of her boss and they just said my complaint was unfounded. So there is already a considerable amount of bitterness between the defense and prosecution in this case. They were very hardline before I went to OBA because of the politics involved. I think going to AG will not make things worse.) Glad to hear any comments you have on this.


 


Does the prosecution have to file an official response to the Application for Post Conviction Relief. If they don't do they forfeit their right to bring any witnesses or evidence to a hearing (if there is a hearing) since the defendant would have no time to prepare?

Expert:  MyraB replied 1 year ago.

The rules of procedure governing Applications for Post Conviction Relief do not specify whether the prosecution waives its right to argue and present witnesses if they do not file a written response within the 30 days. This would likely mean that they can argue and present witnesses. In the context of Appeals, a party is deemed to waive oral argument if it does not file a brief, but the procedure for post-conviction relief does not seem to have a similar rule. This may be because it involves an evidentiary hearing and it is likely that the judge would allow both the defendant and prosecutor the opportunity after the hearing to submit supplemental memorada based on the testimony presented at the hearing.

However, if the prosecution does not file a written response within the time allowed, the defendant could file a Motion in Limine with the court to request that the court impose a sanction, such as limiting the issues the prosecutor could raise and limiting the arguments that she could make to those previously raised, or bar witnesses or new evidence, on the grounds of prejudice. In the alternative, the court may order the prosecution to submit a response within X days before the hearing.

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Expert:  MyraB replied 1 year ago.
Hello again and thank you for the positive rating. I'm just getting back to you now on the ASCLD volunteer reference from your earlier question. I finally got the chance to go through my history and this is the information I recalled from yesterday.

http://ag.ca.gov/meetings/tf/pdf/report_notes.pdf

The reference is on p. 2 in relation to Slide 4 and discusses volunteers in the Proficiency Review Committee. This may be what the Director meant by volunteer.

Thanks again.
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Customer: replied 1 year ago.


I have decided to hold of on filing a complaint with AG at least until I hear back from ASCLD. But now the prosecution has all the information about erroneous testimony of their expert don't they have an obligation to investigate the expert and file charges against him if they find he did commit perjury?


 


Seems like I was reading somewhere that prosecutors take some oath to seek justice not just convictions or some similar wording. Have you heard of that?

Expert:  MyraB replied 1 year ago.

An attorney is bound to adhere to the Rules of Professional Conduct. The Oklahoma Rules of Professional Conduct may be found here http://www.oscn.net/applications/oscn/index.asp?ftdb=STOKRUPR&level=1

 

Rule 3.3 governing "Candor Toward The Tribunal" states:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(4) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.

(b)A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

 

Rule 3.3 seems to be particularly applicable to your case.

 

In addition, Rule 3.8 contains Special Responsibilities of Prosecutors.

 

Rule 8.4 governs Misconduct and states in part:

 

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice; . . .

I believe the expression that it is the prosecutor's duty to seek justice and not just convictions derives from these rules that govern attorney conduct.

Customer: replied 1 year ago.

This is really valuable information. Can't a lawyer lose their license by professional misconduct? This is appears to be much more serious for the prosecution than I even imagined.

Expert:  MyraB replied 1 year ago.
It is extremely serious. Yes, a lawyer can lose their license. That is one reason I was concerned yesterday when you stated you were considering filing a complaint with the AG. If the worst is true and can be proven, it would ruin the prosecutor's career and she could be disbarred. Any disciplinary action, like disbarment or reprimand would be through the OK Bar Association. The AG would notify the Bar Association if they uncovered misconduct. Also, although you already filed a complaint with the Bar Association at the time of the trial, you may at some point want to refile with any new evidence and depending on what the other investigations uncover.
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Customer: replied 1 year ago.

I appreciate all your answers.


 


I am considering filing the following Motion in Limine, probably Aug 3, if State does not respond to APCR by then. What do you think about the wording. We primarily want to get the court's attention that prosecution has not responded yet to the APCR.


 


 


Come now the Petitioner, name, and moves the Court sanction the State for not complying with the instructions related toUniform Post Conviction Relief Procedures Act. The sanctions requested are not allowing the State to have witnesses or to introduce new evidence.


 


Title 22, section 1083 (a) says in part:


"Within thirty (30) days after the docketing of the application, or within any further time the court may fix, the state shall respond by answer or by motion which may be supported by affidavits.."


 


The State has failed to respond to the Application for Post Conviction Relief in the allotted time. The application was filed on Jun 26, 2013. There is no record that an extension of time was requested by the State or given by the Court. The court clerk’s office has confirmed that the Court and the State were served with a copy of the application on June 26, 2013. In addition the Petitioner caused a copy to be mail by certified mail on July 1, 2013 to Assistant DA Ms. and postal service shows proof the application was received by the State on Jul 2, 2013.


 


Wherefore, the Petitioner request the Court sustain it’s Motion in Limine.


 

Expert:  MyraB replied 1 year ago.

The wording is a bit different than what I'm used to, although I understand it varies among jurisdictions. However, I suggest not calling it a sanction, even though I did mention that you could ask for some sort of sanction if the prosecution failed to respond, it is actually a limit on what the prosecution can do, rather than an actual sanction and I apologize for the confusion.

Therefore, I would suggest wording as follows:

Now comes the defendant and moves that the Court preclude the State from filing a written response to the defendant's Application for Post Conviction Relief and further limit the issues and arguments the State may raise at any hearing on the Petition to those previously argued in the case, and further preclude the State from introducing new witnesses and new evidence.

As grounds for this motion, the defendant states that:

1. Title 22, section 1083 (a) says in part: "Within thirty (30) days after the docketing of the application, or within any further time the court may fix, the state shall respond by answer or by motion which may be supported by affidavits.."

2. The State has failed to respond to the Application for Post Conviction Relief in the allotted time.

The Defendant further states that the application was filed on Jun 26, 2013. There is no record that an extension of time was requested by the State or given by the Court. The court clerk’s office has confirmed that the Court and the State were served with a copy of the application on June 26, 2013. In addition the Petitioner caused a copy to be mailed by certified mail on July 1, 2013 to Assistant DA Ms. and postal service shows proof the application was received by the State on Jul 2, 2013 (copy attached).

The applicable section directs that the state "shall" respond by answer or motion. The statute mandates a timely response.

As a result of the state's failure to file and serve a response to the Petition, the defendant has been and will be severely prejudiced in the presentation of the Petition to the court as he will not have an opportunity to prepare and address any challenges the state intends to raise in opposition.

Based on the above, the defendant respectfully XXXXX XXXXX the court impose the requested limitations or such other limitation as the court deems just.



He may want to attach a copy of the green card proof of service from the post office. The court docket should reflect the date of the filing of the Petition.

Let me know if you have any further questions on this.

Customer: replied 1 year ago.

Thank you for the response. But my son called me this morning and said he received a response to the application. It shows that it was filed Jul 23 but it is still not showing on court web site.

He mentioned some interesting points first and foremost I think is they did not mention any objection to the defendant's statements countering their expert witness.They were completely silent on that subject.

 

The response was written by an asst DA who was not even a part of the case. There were two prosecutors involved in the case. But neither one wrote the response. It was written by someone we have never heard of, apparently a new prosecutor on the staff.

 

They focused primarily on attempting to prove that counsel was not ineffective and I am told brought up a number of case histories showing what is required to show counsel is ineffective. They also brought up a point that the defense counsel did request an extension of time for "an expert" and was denied. But they failed to mention that was for a medical expert to determine the cause of death of the victim not a toxicology expert which is the center piece of the APCR.

 

The response seems very weak to me. What do you think of what I have mentioned so far especially the fact they did not mention at all the counter aruguments to their expert and neither one of the prosecutors involved in the case wrote the response or at least did not sign their name to it?

 

Another thing prosecution mentioned is the jury could have came to the same conclusion without the testimony of their expert based on other evidence presented in the case. But I remember in the Motion In Limine hearing prior to trial, the prosecutor told the judge her trial strategy was centered around getting the marijuana evidence in and it would be very prejudicial to her if the court did not allow that evidence.

Expert:  MyraB replied 1 year ago.

I'm not familiar with the local practice there, but where I practice it is not unusual for a prosecutor other than the one at trial to handle an appeal or post-conviction motion, or at least write the brief or opposition. However, if the trial prosecutor in your son's case has been handling the case all along and also did the appeal, then it may have more significance. But, it's hard to tell or read any significance in the change of counsel or that neither trial prosecutor signed the opposition.

However, that the new prosecutor did not counter your expert or address the issue seems more useful. The defendant can argue that the prosecutor should be limited by the written response, so that if the prosecution attempts to raise the issue at the hearing, the defendant can argue that they waived the objection by not addressing it the opposition to the Petition. That the prosecutor chose to focus only on ineffective assistance of counsel is interesting in that all the issues are inter-related. The evaluation of just how bad counsel's failures were must be made in the context of the availability of expert testimony that not only would have countered the prosecution's theory but also would have revealed the prosecution's expert as incompetent.

Nevertheless, I would not read too much into the lack of a strong written opposition. It may be that the prosecution is relenting or that they just don't want to show their hand prior to the hearing. If a prosecutor with less experience of the case argues the Petition before the court, that would likely work to the defendant's advantage. But, he should prepare for the hearing without the expectation of any advantage.

In preparation, you or the defendant will want to at least outline arguments to counter the arguments raised in the opposition and any arguments you anticipate the prosecutor might make, such as that the motion for extension of time for an expert was on the medical expert, and those issues that the prosecution did not raise or argue in the opposition, that you know could have been included, such as objections to reliance on the scientific report and your expert. The judge will likely give the defendant and prosecutor the opportunity to file a supplemental memorandum after the hearing to address issues and law raised during the hearing, so the defendant will want to be prepared for that as well.

 

"Another thing prosecution mentioned is the jury could have came to the same conclusion without the testimony of their expert based on other evidence presented in the case."

 

First, this is not the standard for ineffective assistance of counsel. The standard is if the failure to have the defendant's expert at trial and other errors deprived the defendant of a substantial ground of defense, if it would have made a difference and would have likely influenced the jury's determination and the outcome. And the failure to exclude the prosecution's incompetent expert and have expert testimony for the defense certainly made a difference.

 

Second, that there may have been sufficient evidence without the testimony from the state's incompetent expert only means that the defendant is not entitled to a required finding of not guilty if the judge disregards XXXXX XXXXX testimony, and could be retried. If the case was insufficient without the expert's testimony then retrial would be barred by double jeopardy. But, as you stated, the state's case was nothing without the expert's testimony and the prosecutor admitted as much at the motion in limine hearing. They relied heavily on the expert to make their case and defense counsel did nothing to counter the evidence - no opposing expert and no challenge to the scientific basis.

Let me know if you need anything further on this.

Customer: replied 1 year ago.

You said
"..However, that the new prosecutor did not counter your expert or address the issue seems more useful. The defendant can argue that the prosecutor should be limited by the written response, so that if the prosecution attempts to raise the issue at the hearing, the defendant can argue that they waived the objection by not addressing it the opposition to the Petition.."

Should this be mentioned in the response that prosecution did not counter our expert or our argument that their expert gave erroneous testimony?

 

I noticed something else on court website for this case and that is someone must have requested the testimony for prosecution expert because there was a notice of filing and it stated what was filed was "..Excerpt of Transcript of Proceedings --volume II--Jury Trial (Testimony of Prosecution's Expert's Name had on November 9, 2011, consisting of 17 pages in the above styled case. Date this 24th day of July 2013."

Doesn't this appear that someone must have requested that information?

I am thinking OSBI or ASCLD. I am also thinking it must be more than just the prosecution's expert testimony because I am sure his testimony alone was not 17 pages long.

 

Just thought of something else. If the prosecution is not arguing in support of their expert then our expert witness is not likely to be needed or approved by judge is he?

 

 

 

You also said:

 

"..Second, that there may have been sufficient evidence without the testimony from the state's incompetent expert only means that the defendant is not entitled to a required finding of not guilty if the judge disregards XXXXX XXXXX testimony, and could be retried. If the case was insufficient without the expert's testimony then retrial would be barred by double jeopardy.."

 

So are you saying the defendant could argue or the judge could find that since the prosecution argued very strongly in Motion In Limine that they felt they could not win the case without the marijuana testimony then the defendant should be found not guilty if their expert testimony has been found to be erroneous?

 

And are you also saying even if there is other evidence he could be convicted on, he should at least get a new trial since so much prejudicial evidence had been introduced due to ineffective counsel?

 

 

 

 

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