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Ok. Thanks. I will greatly appreciate it.
Overall this reply seems well organized and focuses on the points and errors made in the State’s response.There are a few suggestions. I’ll put the suggestions for specific changes in quotes and write out the suggestions for other changes or additions.The court can’t overrule or dismiss the response. It could, on a motion to strike, strike the response, but this is for when the state would include something that was not brought up at trial, would stray from the arguments or issues raised, and would not be applicable here. What you have here is a fairly straightforward response from the state.So, you may want to change the introduction to “Now comes . . . and submits the following reply to the State’s response to the Petitioner’s . . . . . This reply is limited to addressing the arguments raised in the State’s response.” This is so the judge will know you are specifically addressing only the arguments made by the State in its response.Then, “In support thereof the Petitioner states:Points 1 and 2 accurately set forth the procedural history of the case. The Petitioner responds to Points 3 to 6 as follows:”(3) You many not want to agree that the only ground centers on hiring the toxicology expert. There is the related argument, as you do mention later, that is equally strong that defense counsel should have challenged the prosecution’s expert by requesting a Daubert hearing and/or with scientific literature.Also, you don’t need to set forth the entire section 1080. Quote the sections that apply and then make your argument. You may want to add that ineffective assistance of counsel has not previously been raised so no res judicata and that the issue has not been waived. You do point out, with the Brown case, that the issue is a valid grounds for post-conviction relief.I would suggest avoiding remarks such as “state must not have read the entire petition.” Rather, just point out that the new evidence presented in the Petition. Such as, “However, the Petition describes and discusses new evidence in great detail at pages 7-10.”In place of “as it should have been found by defense counsel” I would suggest something along the lines of “The defendant’s argument on the existence of new evidence is intertwined with the issue of the ineffective assistance of counsel. The defendant contends that defense counsel should have discovered and been aware of the new evidence and that his failure to do so constituted ineffective assistance of counsel.”(4) Include the page cite to cases. The form of citations should be Fitzgerald v. State, 972 P.2d. 1157, [page] (1998).Same with Strickland – include page cite where quote appears.
This is a nice summary of the ineffective assistance of counsel claims. The defendant may want to put it on an index card or something for reference at the hearing and use it like a hammer.“There is no record to show that Mr filed a motion to continue for time to attain an expert toxicologist or motion for funds for an expert toxicologist although he knew almost from the time he was appointed counsel that an expert toxicologist would be critical for the defense of the Petitioner as demonstrated by his statements in the pretrial meetings. Nor did Mr.file a motion for a Daubert hearing to challenge the scientific basis and methodology of how the prosecution expert arrived at his conclusions nor did he introduce research studies on THC and driving. He even failed to bring the drug court person to counter the expected testimony from the prosecution expert as he said he would do in the pre-trial, pre-hearing meetings with the Petitioner.”Juxtaposed against the prosecutor’s comments on how important the expert’s testimony was to the state’s case and on the issue of recklessness.If the defendant could only say two things at the hearing, those might be the two things he wants to say.(5) You may want to change the references to the trial court, to “the trial court judge” where it is the judge who is stating and not an order of the court.at the end you may want to add “. . . that show clearly that they knew allowing the marijuana evidence into trial was extremely negatively prejudicial to the Petitioner and extremely beneficial to the State, and that it ultimately made a difference in the jury’s verdict.”(6) “due to ineffective defense counsel the court did not get a true picture of the effects of 1.1 ng/ml of THC that was allegedly found in his blood.” You may want to change “the court” in this sentence to “the jury.”“what would be the chances the marijuana evidence would have been allowed into court?” Avoid questions, unless you answer them. Or state the conclusion affirmatively – After DWI “Under those circumstances, it is likely the state’s expert’s testimony would not have been admitted. And even if it was admitted, the defendant would have had scientific evidence and its own expert to challenge and counter the state’s expert’s clearly erroneous opinion. In contrast, as a result of defense counsel’s failures, the defendant had nothing and was deprived of a viable and meritorious defense on this essential issue.“..Petitioner claims his attorney made no effort to hire a toxicology expert. This appears not to be true from the record. The court record reflects that on or about October 31, 2011, counsel moved for a continuance to obtain an expert and motion was denied by the court..”
You may want to make it clearer from the outset that the state’s argument here is misleading. I would suggest reordering the response to read:“..Petitioner claims his attorney made no effort to hire a toxicology expert. This appears not to be true from the record. The court record reflects that on or about October 31, 2011, counsel moved for a continuance to obtain an expert and motion was denied by the court..” The state here is mistaken. In fact, defense counsel requested a continuance for a medical expert on the issue of cause of death, and not for a toxicology expert. Defense counsel never sought to obtain nor sought a continuance to obtain a toxicology expert.The docket reflects that on October 31, 2011 “Judge bench docket: State/; Deft/; Deft request continuance. Deft want to try to get OIDS to fund hiring of medical expert. Deft’s motion for continuance denied.”Although there is no transcript of what was said, it is very clear it was a medical expert that defense counsel was trying to get funds for because the next day, Nov 1, 2011, State counsel, Ms. , filed a motion in limine to block the defense counsel from making any comments in any part of the trial about the possibility of the victim’s death being caused by medical negligence or malpractice.Therefore the Petitioner’s statement that defense counsel made no attempt to procure a toxicology expert is accurate.”Re: the falling asleep = recklessness argument. Did the prosecutor even argue this in the closing. The closing argument will reflect what it was that the prosecutor thought important. The closing is the prosecutor’s opportunity to frame the case for the jury. I’m pretty sure she said something like and you’ve heard from Mr. …. an expert who gave his opinion that the defendant was impaired. I don’t think she argued he shouldn’t have fallen asleep, although she may have. Anyway take a look at the closing and maybe incorporate it into your argument on what the prosecution thought was important if it supports your argument.I would not include the parenthetical phrase in the Conclusion. If you want to state in Point 4 that something is more fully set forth in the Petition, then state it there and not at the end. You want to end strong and not with a phrase in parenthesis.WHEREFORE, . . . Again requesting denial and dismissal is not quite right.You may want something along the lines of: “For the foregoing reasons and those set forth in the Petition for Post Conviction Relief the court should reverse the conviction and enter a finding of not guilty or in the alternative grant a new trial with the marijuana evidence excluded."
Thank you for your help. The response is in the mail to the defendant. I have to mail it to him but I can pick it up. So it should be filed Wednesday.
The question is what now? The prosecution would like to see the defendant stay in jail as long as possible whether they win this battle or not. We want to move things along once the defendant gets his response filed.
Somewhat confused on the best way to get things moving. He still has not filed a motion for expert although it was requested in the APCR. Defendant could request a hearing or motion in limine to block the state from raising the issue of the state raising the issue of thc causing impairment since they did not object to defendant's arguments countering their expert. What would you suggest at this time? Would not be such a big deal if my son was not sitting in small jail cell 20 plus hours a day.
Another point is I asked court reporter why the 17 page excerpt of transcript for the States toxicology expert testimony was filed. She told me that the person who ordered it only wanted that testimony so when it was ordered she filed it. She did not say who ordered it. I did not ask who ordered thinking she did not have to tell me. I did get a copy of the transcript. All 17 pages was the expert testimony. He has over 20 years with OSBI toxicology department, 15 years as supervisor of the department with all kinds of specialized training. He absolutely should have known what he was saying was false. He went so far as to say 1-1.5 ng/ml was enough to cause a person not to be able to pass a sobriety test. What he gave was testimony for a person who has 10 to 15 ng not 1 to 1.5 in their blood. Since someone ordered just that testimony I think it was ASCLD or OSBI.
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