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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 MyraB However, that the new prosecutor did not counter

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For MyraB
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?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.
"Should this be mentioned in the response that prosecution did not counter our expert or our argument that their expert gave erroneous testimony?" Absolutely.

As far as the transcript and docket notation, it seems that the prosecutor may have filed an excerpt of the transcript, likely with the testimony of the expert. However, the defendant should have received a copy of anything filed with the opposition. You may want to contact the court to find out if a portion of the transcript was filed and which portions, so that you can be sure that the excerpts are complete and not somehow misleading.

"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?" Not necessarily. Even if the prosecution did not argue it in the written opposition, does not mean they can't bring it up at the hearing, unless they are precluded by the judge. Also, your expert is material to the ineffective assistance of counsel argument.

If in fact the expert's testimony was necessary to establish an element of the offense and that testimony was on appeal or now struck down as incompetent such that the remaining evidence was insufficient to prove the offense as charged, then the defendant would be entitled to acquittal on that charge, and he could not be retried on that charge. However, he may be retried on a lesser charge if the remaining evidence would have been sufficient to prove the lesser charge.

But, the prosecutor's argument seems to be that if there was sufficient evidence to prove the crime charged without the expert's testimony then there was no ineffective assistance of counsel. That is simply not the standard that applies here. There may be cases where the evidence against a defendant is so overwhelming that the errors or failures of defense counsel would have had no effect. That is not the case here. In your case, the weight of the evidence with regard to the element of impairment dramatically increased with the expert's testimony and defense counsel's efforts to counter the testimony with readily available expert's and scientific studies constituted ineffective assistance of counsel and prejudiced the defendant.

The defendant should get a new trial because the ineffective assistance of counsel and the prosecution's incompetent expert testimony was admitted and never should have been, such that the errors and prejudice pervaded the trial.
Customer: replied 1 year ago.

You said "..If in fact the expert's testimony was necessary to establish an element of the offense and that testimony was on appeal or now struck down as incompetent such that the remaining evidence was insufficient to prove the offense as charged, then the defendant would be entitled to acquittal on that charge, and he could not be retried on that charge.."


 


In this case the prosecution repeatedly claimed in the Motion in Limine that marijuana evidence was needed to prove element three of the crime, that is willful disregard for the safety of others. So couldn't her own testimony be use to prove the point just quoted? And where can I find some statute or case history to back up your statement.


 


 


 


On the docket issue, this was actually filed by the court reporter. It seems a little strange since the entire transcript is already filed and the prosecution made no arguments against what was said about their expert's statements. I will try to get a copy to see what's going on.


 


 


 


 

Expert:  MyraB replied 1 year ago.

I stated: "defense counsel's efforts to counter the testimony with readily available expert's and scientific studies constituted ineffective assistance of counsel and prejudiced the defendant." This should have been "defense counsel's failure to counter . . . ."

The prosecutor's own statement could be used to support the point that the expert's testimony was essential or at least extremely important to the prosecution's case on that element, such that the prosecution's argument now that they didn't need it anyway, is just not credible or persuasive.

Which specific point do you want case law on? The law on required finding of not guilty where the evidence is insufficient?

Customer: replied 1 year ago.


You asked:Which specific point do you want case law on? The law on required finding of not guilty where the evidence is insufficient?

 

Yes, that is correct.

 

Also will the prosecution have the right to have another written response to the defendant's written response to their response? Just wondering how long this can go back and forth with written responses.

Expert:  MyraB replied 1 year ago.
It is likely both the defendant and prosecutor will have one more opportunity to file a written argument. The defendant can combine the response to the opposition and address anything new that comes up at the hearing in one document, or split it up into two - a reply prior to the hearing and then a supplemental memo following the hearing. The prosecutor will likely have one more opportunity to address everything following the hearing.

Generally, it's submission, opposition and reply. No reply to the reply.

I'll check for cases and get back to you.
Customer: replied 1 year ago.


Ok, Thanks.

Expert:  MyraB replied 1 year ago.
Just wondering. Did the judge instruct the jury that they could return a verdict on any lesser included offenses and instruct on those offenses?
Customer: replied 1 year ago.


There was no lesser included offense in the instructions.

Expert:  MyraB replied 1 year ago.

Did defense counsel discuss with the defendant the possibility of requesting a lesser included offense instruction? I'm just thinking this could be another error of defense counsel. If the jury had the option of convicting on a lesser offense they may have done so. But, an instruction on a lesser included offense has to be requested.

Here is a great assembling of OK cases on sufficiency of evidence. w w w. o c d w. com /DANGEROUS URL REMOVED/*qshome=home&st=291&kw=infset&ifn=163&trec=1&lktype=6&pst=

Generally, the standard is whether the evidence, viewed in the light most favorable to the state, was sufficient to convict on the charge as a matter of law. If the evidence was not sufficient the conviction cannot stand.

 

Note: the site kept blanking out the link. Omit the spaces and it should work. It's the Oklahoma Criminal Defense Weekly site.

Customer: replied 1 year ago.

Thanks for the information." You asked: Did defense counsel discuss with the defendant the possibility of requesting a lesser included offense instruction?.."


No. There was no discussion with counsel about possibility of lesser included offense.

Expert:  MyraB replied 1 year ago.
OK. One more try on the link.

w w w . o c d w . c o m / e n g i n e / e m w . e x e / * qshome=home&st=291&kw=infset&ifn=163&trec=1&lktype=6&pst=

What was the exact charge the defendant was convicted of? And, would he have wanted the jury to be advised that they could convict of a lesser included offense (if one exists)?
Customer: replied 1 year ago.


The defendant was convicted of negligent homicide. Yes he would have wanted the jury to be advised of a lesser charge. The defendant discussed this with one of the previous attorneys. (He had three different attorneys one after another) The lesser charge he discussed with the other attorney was causing serious bodily harm to a byclist on the road and that would have been a traffic violation with $500 fine. The defendant was willing to plead guilty to that offense. The counsel said DA would not go for that. That is when defendant decided to go to trial. However this was not brought up to the attorney that he is now charging with ineffective counsel. But he surely would have been open to a lesser charge.

Expert:  MyraB replied 1 year ago.
OK. I checked out Negligent Homicide. There is no lesser included offense to Negligent Homicide. It is itself a lesser included offense of murder, but the prosecutor can only charge the highest level that fits the facts, so they must have thought they could prove the Negligent Homicide. Any other charge would constitute a separate crime. So the one you mention could have been charged separately and in addition to the Negligent Homicide. There is a difference between lesser charges, and lesser included charges.

The expert's testimony would go to the element of recklessness. So if the expert's testimony is discounted, the question would be whether there remained sufficient evidence to show recklessness. And even if there was enough as the prosecution is arguing, it still doesn't mean that there was no prejudice as a result of the ineffective assistance of counsel. The evidence of recklessness without the expert's testimony was certainly not overwhelming such that it would have been likely that the jury would have rendered the same verdict.
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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