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There is part of the Post Conviction Relief Law in Oklahoma

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There is part of the Post Conviction Relief Law in Oklahoma that says the following: §22 1084.


Evidentiary hearing Findings of fact and conclusions of law.


 


If the application cannot be disposed of on the pleadings and record, or there exists a material issue of fact, the court shall conduct an evidentiary hearing at which time a record shall be made and preserved. The court may receive proof by affidavits, depositions, oral testimony, or other evidence and may order the applicant brought before it for the hearing. A judge should not preside at such a hearing if his testimony is material. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. This order is a final judgment...


 


This statement: "..A judge should not preside at such a hearing if his testimony is material.." is what I have a question on. In the APCR the defendant quotes the judge a number of times from the motion in limine hearing. Basicly quotes saying that if marijuana was not at high enough level to cause impairment then the marijuana evidence was more prejudicial than probative and should not be allowed in trial.


Is this type of statement from the judge considered material and would that disqualify him from presiding of a hearing?


 


Another question on this part of this statement:


If the application cannot be disposed of on the pleadings and record, or there exists a material issue of fact, the court shall conduct an evidentiary hearing at which time a record shall be made and preserved... 


 


What does it mean  "..a material issue of fact.." ? Would that be if , for example, testimony is needed from an expert to determine if 1 ng of thc would cause driving impaiment?  If that is the case since studies were attached that showed that point and there were no objections by the prosecution to the statements in those studies, would a hearing and expert still be needed?


 


 

Submitted: 11 months ago.
Category: Criminal Law
Expert:  MyraB replied 11 months ago.

Hello again and thank you for your question.

Is this type of statement from the judge considered material and would that disqualify him from presiding of a hearing?

The quotes from the judge that you used from the transcript are material because they support your son's position that the evidence was important and made a difference in the verdict. It is unlikely the use of the quotes would disqualify the judge because they are quotes and you don't need his testimony, you already have it in the transcript. Nevertheless, if the judge, prosecutor or the defendant believed the judge's testimony was necessary then they could file a motion for the judge to recuse himself, or the judge could do so on his own motion. If there was an objection to the recusal, then there would be a hearing on that issue. It is unusual for a judge to recuse himself and very unusual for his testimony to be necessary. If for some reason the defendant did not want the trial judge to decide the APCR then this could be a way to get a different judge, but it would still be difficult to show that the judge's testimony is needed when the transcript is available and the reasons for his decision are set forth in the transcript.

What does it mean "..a material issue of fact.." ?

A material fact is considered one that is necessary to the jury's determination. The fact of that the amount of thc did not have an impact on the defendant's condition or ability to drive, may be considered a material fact. The prosecutor's argument that the jury did not need the expert's testimony to convict is essentially an argument that the evidence is not material. However, that position, as you noted, is contradicted by the emphasis and importance the prosecutor placed on the testimony at trial. In addition, that issue will be considered in the context of the larger material issue of whether there was ineffective assistance of counsel.

If that is the case since studies were attached that showed that point and there were no objections by the prosecution to the statements in those studies, would a hearing and expert still be needed?

Generally, with material facts, the party with the burden of proof (in this case the defendant) must put forth some evidence on the issue, which must then be met by evidence from the other party. In this case, the defendant has set forth evidence challenging the accuracy and scientific reliability of the expert's testimony at trial. In order to prevail, the judge still must credit and accept the defendant's evidence to rule in his favor. This can be done with the studies. If the judge is satisfied with the studies, then he may not need additional testimony from the defendant's expert, and decide on the submissions without a hearing. But, it would be unusual for there to be no hearing if the judge is inclined to allow the petition. Generally, petitions are denied without a hearing where the defendant has failed to include sufficient evidence of a material fact in the petition. Therefore, in your son's case he will most likely get a hearing.

Please feel free to ask any follow-up questions.

Customer: replied 11 months ago.

Thank you for the information.


 


You said: "..In this case, the defendant has set forth evidence challenging the accuracy and scientific reliability of the expert's testimony at trial. In order to prevail, the judge still must credit and accept the defendant's evidence to rule in his favor. This can be done with the studies.."


 


How likely is it that the judge will consider the fact that prosecution did not challenge the studies in making his decision to accept the studies? It seems to me that would be tremendously significant in this case.


 


You also said: "..But, it would be unusual for there to be no hearing if the judge is inclined to allow the petition. Generally, petitions are denied without a hearing where the defendant has failed to include sufficient evidence of a material fact in the petition. Therefore, in your son's case he will most likely get a hearing.."


 


Is there any significance that the prosecution has not requested a hearing nor have they responded to the defendants reply to their response which was filed three weeks ago?


 


 

Expert:  MyraB replied 11 months ago.
Thank you for your response.

How likely is it that the judge will consider the fact that prosecution did not challenge the studies in making his decision to accept the studies?

Because the prosecution did not seek to strike the studies from consideration, did not challenge the inclusion of the studies, and did not challenge the substance of the studies, then the judge could certainly consider the studies and the fact that the studies are unchallenged by the prosecutor. They could, therefore, carry significant weight and the judge would likely need to address the basis for any decision not to credit them. In their response, the prosecution seemed to be trying to avoid the studies altogether and did not defend their expert's testimony, which would indicate some recognition that continuing to support their expert's testimony is not viable argument for them at this point.

Is there any significance that the prosecution has not requested a hearing nor have they responded to the defendants reply to their response which was filed three weeks ago?

Generally, the prosecutor would not request a hearing because a hearing signals that there are issues to be argued and resolved, and the prosecution's position is that the judge decide on the submissions to affirm the judgment. A hearing is usually more of benefit to the defendant, than the prosecution. So, it is not unusual for the prosecution not to request a hearing.

Also, that the prosecution did not respond to the defendant's reply is not unusual. Unless there was something new raised in the reply, there would generally not be a response from the prosecutor.
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 7 other Criminal Law Specialists are ready to help you
Customer: replied 11 months ago.

I suspect that the DA has information from the investigation of the OSBI toxicologist even though the the investigation may not be complete yet. Can the defendant file a motion to compel to get any information the prosecution might have on that investigation?

Expert:  MyraB replied 11 months ago.
Thank you for your response.

The prosecutor has a continuing duty to disclose exculpatory evidence including during post-trial proceedings, so the defendant may want to send a request to the prosecutor and file a Motion for Disclosure of Exculpatory Evidence.

Here is a good discussion of the right to exculpatory evidence http://www.capdefnet.org/hat/uploadedFiles/Public/Helpful_Cases/Suppression_of_Evidence_or_False_Testimony/ONGOING%20DUTY%20TO%20DISCLOSE%20EXCULPATORY%20EVIDENCE.pdf

Here is a sample motion that you can use to organize and frame the motion. This is from Texas so you will need to revise it to fit your case. http://www.jmichaelprice.com/Criminal-Pretrial-Motions/Motion-for-the-Production-of-Exculpatory-and-Mitigating-Evidence.shtml (please note that this link to a legal website is not intended as a referral or recommendation).

Let me know if you need any further information.
Customer: replied 11 months ago.

Thank you for the good example. Below I have put down the things the defendant would want to know. There were more in the example. Do you think this is enough?

I wonder if the defendant should specifically request info about the specific toxicologist in question?

 

NOW COMES the Defendant, (Defendant's Name)., in the above-styled and numbered cause, and respectfully XXXXX XXXXX Court to order the State of Oklahoma to reveal and produce the following:

 

1.Any documents or records of any kind which, in any way, question or raise doubts about the accuracy or reliability of any scientific and/or expert testing.

 

2.Any evidence, documentary or otherwise, which might undermine or tend to undermine the credibility of any state witness.

 

3. All exculpatory evidence which the prosecuting attorneys and their agents may have in their files.

 

4.Any evidence of any kind which is in any way mitigating.

 

In the event that any of the above-requested evidence exists, the Defendant moves that the Court order the prosecuting attorney to produce the same for inspection by the defense at the earliest possible time the existence of such evidence becomes known to the State.

 

Defendant would show the Court that the failure to produce the above requested evidence would result in the suppression of evidence and a violation of the United States Constitution, Amendments V, VI and XIV. See Kyles v. Whitley, 514 U.S. 419,XXXXX 1555, 131 L. Ed. 2d 490 (1995); Brady v. Maryland, 373 U.S. 83,XXXXX ll94, l0 L.Ed.2d 2l5 (l963); Ashley v. Texas, 3l9 F.2d 80 (5th Cir. l963).

 

WHEREFORE, the Defendant respectfully XXXXX XXXXX the Court grant this Motion in all things.

Expert:  MyraB replied 11 months ago.
I just wanted to let you know that I am out of the office today, but will be able to take a look at this and get back to you later this afternoon. I am sorry for the inconvenience.

Thank you.
Customer: replied 11 months ago.


No problem. Thanks for your response.

Expert:  MyraB replied 11 months ago.
Thank you for your patience.

What you have looks good. Yes, you may want to make a request specifically about the toxicologist expert and specifically about any investigation of which you are aware. These would be in addition to what you already request. This would also bring to the attention of the judge that these investigations are going on and may result in exculpatory evidence.

Also you might add: All exculpatory evidence in the possession of the state, its agents, servants and/or employees. (I know you ask in 3, but I'm just concerned about if it's not in a file).

Brady v. Maryland is the leading case when dealing with a defendant's right to exculpatory evidence, so that should go first. You may want to leave out the cite to the 5th Circuit case. Oklahoma is in the 10th Circuit. So you may want to cite one of the ongoing duty cases, such as:

The state's duty to disclose exculpatory evidence is ongoing and extends to all stages of the judicial process. Bowen v. Maynard, 799 F.2d 593593 (10th Cir. 1986).

Let me know if you need anything further.
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 7 other Criminal Law Specialists are ready to help you
Customer: replied 10 months ago.

I have a question on who to send the Motion for Production of Exculpatory and Mitigating Evidence to. I am wondering if in addition to the Judge and primary State trial counsel a copy should be mailed to the DA himself? And should the prosecutor who made the response to the APCR (who was not the trial counsel) also get a copy?

Expert:  MyraB replied 10 months ago.
Thank you for your response.

File the Motion with the court, and send a copy to the prosecutor who responded to the APCR and a copy to the trial prosecutor.

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 7 other Criminal Law Specialists are ready to help you
Customer: replied 10 months ago.

Over two weeks ago I emailed ASCLD with question about when the investigation would be completed. The response was "we should be concluding our investigation in the near future." I emailed again last Thursday asking if I could get an update on when the investigation would be over and I also stated that the DA and Judge probably already know what is going on and I was the only one in the dark. I received one of those auto-responses saying the contact would be out of office through Aug 23 which was last Friday.

 

Here it is Tuesday and I still have not received a response. This contact generally responds the same day he receives email. Can the defendant send a subpeona to that company requesting any information relating to the investigation? And if they have any information couldn't the investigator be subpeonaed to to testify AT a hearing in this PCR?

 

Another point I am just adding, I saw on there web site there process for investigations and it said something like they don't give their conclusion to investigation until a trial or any post conviction proceedings are completed. Can they legally hold on to exculpatory evidence knowing it is helpful to a defendant or again can the defendant subpeona that information?

 

Expert:  MyraB replied 10 months ago.
Thank you for your response.

If I recall correctly, ASCLD is the private accrediting organization for the state lab that employed the prosecutor's expert. Because they are not state actors involved in the prosecution of the defendant, they are not required to turn over exculpatory evidence. However, if they notified the prosecutor of any such evidence, then the prosecutor would be obliged to disclose it to the defendant.

You could likely subpoena the investigation file into court for the date of any hearing. The problem with that is that you don't know what would be in the file in advance, and the prosecutor would have access also. Unlike a in civil case, in a criminal case you can't subpoena third party records for discovery only.

At this point you may want to send a follow-up email. I understand that it is difficult and frustrating to wait for others to get back to you after vacation while your son spent the summer in jail. However, as he has been responsive in the past, he may not have caught up to all that happened while he was gone. You may want to send him another email, forwarding the previous one and mentioning that you understand he was away, but could he please respond. That way your email will be at the top of his inbox instead of buried somewhere in it.
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 7 other Criminal Law Specialists are ready to help you
Customer: replied 10 months ago.


You said "If I recall correctly, ASCLD is the private accrediting organization for the state lab that employed the prosecutor's expert. Because they are not state actors involved in the prosecution of the defendant, they are not required to turn over exculpatory evidence.."


 


So ASCLD could in fact not send out any report of what they found until after all post convictions proceedings are over couldn't they? But OSBI would be obligated to report whatever they found.

Expert:  MyraB replied 10 months ago.
OSBI is certainly closer to the prosecution and arguably would be required to report what they found especially if the findings were that the expert's testimony was not scientifically based or accurate.

It seems ASCLD could wait until after all post conviction proceedings, although it is strange that they would do that if the findings could make a difference and that was the whole point.
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 7 other Criminal Law Specialists are ready to help you
Customer: replied 10 months ago.


What if OSBI says the investigation is internal and their guidelines don't allow them to give out internal information?


 


What do you think about going to the newpaper, to an investigative reporter, in a situation like this if some information does not come from DA shortly?

Expert:  MyraB replied 10 months ago.
The OSBI can say its investigation is internal, but if the investigation uncovers impropriety and exculpatory evidence then claiming it is internal would only open it up to further claims of a cover up and conspiracy. If the internal investigation turned up something OSBI would be obligated to turn it over to the Attorney General, who would then notify the court. If they refused to disclose the results of the investigation, you could file a complaint with the Attorney General.

As far as involving the media, it is your and your son's call to make. Again, the main concern is his appeal and how any media coverage would affect the appeal. It also depends on how the media would spin the story and that is out of your control. Also, the judge may not want to seem to be pressured into making a decision because of the media or public opinion, and decide the other way. On the other hand, judges in OK are elected. I don't know when your judge would be up for re-election, but that might make a difference.
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 7 other Criminal Law Specialists are ready to help you
Customer: replied 10 months ago.


In a previous post you said: "File the Motion with the court, and send a copy to the prosecutor who responded to the APCR and a copy to the trial prosecutor."


 


This was done. Did you not include the judge for one of the persons to mail the copy to because he should automatically get a copy? At this court now and then you will see where they say "copy to DA and Court" when something is filed. Are all "Motions" suppose to automatically go to the DA and Trial Court Judge? (No mention was made that this Motion was sent to DA and Judge. I called and ask court clerk she said she did not know but she did not think so. So I sent a copy to the judge also.)


 


Update on ASCLD I sent another email last Friday for an update and the contact did apologize for not responding to the previous email. He said they were waiting for one more court transcript before they make their decision and the decision should be made in 2 to 3 weeks. I don't know if he was talking about a transcript from this case or maybe they are also looking at transcripts from other cases where this toxicologist has testified.

Expert:  MyraB replied 10 months ago.

Hello again.

Generally, the motion that is filed with the court goes in the court file and the judge has access to that file, so a separate copy to the judge is not necessary, and this is the practice I'm most familiar with. A copy of the motion should always be served on the opposing party. That said, each court may have there own specific procedure regarding filing motions and copies, and an extra copy to the judge would guarantee everyone gets a copy who should get one and it's always wise to confirm with the court clerk.

I am glad to hear that the investigation is proceeding. It would seem to be a good thing if they are looking at other cases where the expert may have testified as it would show either that he testified erroneously on other occasions, or that he only testified the way he did in your son's case thereby singling him out. Either way, it doesn't seem like it can be good for the expert.

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 7 other Criminal Law Specialists are ready to help you

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