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MyraB
MyraB, Lawyer
Category: Criminal Law
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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 just got the following response from my contact

Resolved Question:

For Myra B: I just got the following response from my contact at ASCLD:


ASCLD/LAB has carefully reviewed the facts associated with your complaint against Mr. W of the Oklahoma State Bureau of Investigation. After carefully reviewing the trial transcript of Mr. W's testimony it is clear that Mr. W did not testify specifically concerning your son’s condition. Mr. W’s testimony addressed the effects generally associated with THC impairment. The testimony provided by Mr. W about the general effects of THC impairment is supportable by the scientific literature. ASCLD/LAB does not find that Mr. Wallace overstepped the bounds of supportable testimony and that there is no merit to the complaint against him. We consider this matter to be closed.

This was a complete cover up. None of the expert's statements are fully supported by THC literature. Some statements not supported at all and I let the contact know and expressed my disappointment in ASCLD in a reply email.

So we are back to square one. At least we are no longer waiting for anything. We still have an expert and studies that disagrees with ASCLD conclusions. Any thing you can suggest at this time? The PCR has been filed since Jun 26 and the judge has not requested hearing or anything so far. The defendants response to prosecutions response was Jul 31. Nothing since then except a request for exculpatory evidence made Aug 27.
Submitted: 12 months ago.
Category: Criminal Law
Expert:  MyraB replied 12 months ago.
Hello and thank you for your question.

That is disappointing, but not altogether unexpected. The ASCLD/LAB and OK State Bureau of Investigation seem to have a kind of symbiotic relationship. I'm not sure the oversight is all that good. They're not looking to make or find trouble.

But, the main focus of the argument in the Petition is that there is an expert prepared to counter the state's expert and that was not presented at trial.

The PCR petition seems to be lagging. You may want to prod the court by requesting a status of the petition. You can contact the clerk, or submit a motion. Did you straighten out the issue of the credits? What is his projected release date? It seems to me it should be coming up. You may want to request that the court take action on the petition sooner rather than later so that your son can get some benefit if the judge decides in his favor. Otherwise, as far as his jail sentence, the petition will be moot.

Please feel free to ask any follow up questions.
Customer: replied 12 months ago.

Thanks for your response.


 


You said: "You can contact the clerk, or submit a motion. " When you say submit a motion are you talking about a motion for a hearing or is it possible to submit a motion for a status check?


 


My son's release date is Nov 15, 2013. That's the date he has been given by jail administration and that date reflects the 2 days credit for every day served. If he would be able to get the 5 days credit for every 4 served, his release date would be Oct 9. We thought it would be best to wait until Oct 1 or later to submit the grievance for the 5 day for every 4 credit so the jail administrators will not have time to change his work or anything. Do you think Oct 1 or Oct 7 would be better?


 


 


 


 


 


 

Expert:  MyraB replied 12 months ago.
Generally, you can submit a motion for anything you want. A motion is just the way to get the issue to the judge. You can submit either motion, or go through the clerk. Sometimes the clerk is helpful and will bring it up to the judge, other clerks won't, so it depends if you can get an answer from the clerk. You may want to first contact the clerk and let them know that your son has less than two months to serve so that he would like a decision as soon as possible. The judge many not realize how close it is to your son's release. If the clerk says they will let the judge know, follow-up in a couple of days to confirm the clerk told the judge.

If the clerk is not helpful, then file a motion for hearing stating in the motion the procedural circumstances from the conviction to his projected release date, such as on this date he was convicted and sentenced to one year. He filed Petition for PCR on June 26, Opposition filed July 31, projected release date is Nov. 15, less than two months from now. Another option is to file a motion for immediate release pending the decision. That way if the judge is inclined to allow the petition, he may be able to do that while he writes out the decision. Or combine them - motion for immediate release pending the decision or for hearing as soon as possible.

With regard to the credits, he may want to file the grievance on the earlier date as I doubt it will be acted on immediately. He may even want to submit it now, as October 9 is less than a month away. Does he have a basis to believe the prison administration would retaliate by changing his job if he filed a grievance? Has that happened at the jail? It would seem that it would be against regulations to retaliate for filing a grievance because then no one would. Of course I do understand that practice can be different from the rules.

Let me know if you need further information.
Customer: replied 12 months ago.

You asked:"Does he have a basis to believe the prison administration would retaliate by changing his job if he filed a grievance? Has that happened at the jail?"

 

There is just a general distrust. The fact that they have told him he only gets one or the other credit and the sheriff handbook shows clearly he should get both is enough to make us distrustful about the way the might behave even though it would be against the rules and regs to retaliate. I have come to the conclusion that this entire legal system including the jail system is corrupt. What do you think?

 

Another point is don't think the judge has a time limit on when he has to write his opinion does he? I am thinking the politically correct thing for the judge in this case is to let the defendant stay in jail as long as possible. I am certain the judge is in no hurry to let my son out of jail even though he may deserve it.

 

One other question. It has been more than thirty days since my son filed his response to the prosecution response. They would not be allowed to respond again at this late date would they?

Expert:  MyraB replied 12 months ago.
As I said, the way things should be and the way they are can be very different and I do recognize that. And, it is important that people like you and your son continue to challenge the system when it doesn't work as it should. Otherwise, it would be much worse. I realize that doesn't help your individual situation and that you did not obtain the "justice for all" that is promised. Sometimes that seems to be a goal rather than the reality.

That said, I wouldn't continue to work in law and criminal law especially, if I didn't believe the system does work to some extent and I consider it my obligation to make it work the best I am able in each individual case. In theory it is a good system. In practice it needs that constant vigilance to get things done as they should be done. As far as the prisons, it is my understanding that they have a lot of discretion in the way they govern prisoners. The more discretion a person or entity has, the more there is a likelihood of abuse. Even the best system in the world can't anticipate and account for every aspect of human nature involved in putting the system into practice.
Customer: replied 12 months ago.


I appreciate your response. It just seems like a never ending battle for us, but we intend to continue the fight as long as we can. Here are a couple of questions that I don't think you saw. I added them later.


 


Another point is don't think the judge has a time limit on when he has to write his opinion does he? I am thinking the politically correct thing for the judge in this case is to let the defendant stay in jail as long as possible. I am certain the judge is in no hurry to let my son out of jail even though he may deserve it.


 


One other question. It has been more than thirty days since my son filed his response to the prosecution response. They would not be allowed to respond again at this late date would they?

Expert:  MyraB replied 12 months ago.
Thank you for your response.

The decision whether to allow the petition is really up to the judge and there is nothing you can do other than let him know that your son is nearing his release date. The judge will need to make a decision even after your son is released because your son might still be entitled to a new trial based on the ineffective assistance of counsel and the conviction would be vacated. In that event, it may be that the prosecutor will decide not to prosecute because he already received and served the maximum, so he wouldn't be able to be sentenced again even if the state obtained another conviction. Then the case would show a dismissal rather than a conviction. So, there is still some value to the petition even after his release and the judge will eventually have to make a decision.

I would hope that the judge makes the decision based on the merits of the Petition and is not holding onto it for some personal advantage. I haven't become that cynical, although I can understand that given your experience you may be. I just thought if you brought to the judge's attention that now might be a good time to get on with it, he might act on the Petition. The judge likely is not aware of the time element, so a reminder would not hurt and it may help.

The prosecutor would likely not be able to file anything more in writing without permission from the court. She could file a motion to supplement, but it is unlikely at this point.
Customer: replied 12 months ago.


Thanks for the reminder the the petition still has merit even if my son gets out of jail before a decision is made on the petition.


 


Just came back from visiting my son in jail and he was saying he wanted to go ahead and submit that grievance now. I told him that you also thought now would be good. He said it appears they are trying to do things better in the jail for one thing they have a deadline of today from the department of health to resolve the overcrowded situation one way or another. He thought this would be a good time to submit his grievance as he already has it written up. So he will be submitting it today.


 


I want to thank you at this time for all the help you have given us throughout this entire ordeal . We truly, truly appreciate and value your assistance.

Expert:  MyraB replied 12 months ago.
You're welcome. I am glad to hear I was of some help. I wish it could have had more effect.

Your questions today reminded me that when Laura Bush was 17 she had a similar accident, she ran a stop sign and may have been intoxicated. She killed a 17-year old boy and no charges were even filed. So much for justice being blind or even equal. But, I do hope that your son gets some vindication with the petition and at least the credits to which he is entitled.
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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Customer: replied 12 months ago.


As mentioned in previous post ASCLD claimed that the toxocologist statements was supported scientific litierature.


 


Is there any authority I can file a complaint with against ASCLD for performing a bogus investigation?


 


Also can I file a complaint with the Oklahoma attorney general against the toxocolgist for lying under oath or making statements not consistent with scientific literature?

Expert:  MyraB replied 12 months ago.
Thank you for your response.

Unfortunately, there would not be any legal basis against ASCLD for performing a deficient investigation. There is no legal duty to you or your son that the investigation be performed adequately. I believe we previously discussed that you can report any perceived improprieties regarding the toxicologist's testimony to the Attorney General. You can also include ASCLD's cursory investigation as part of the claim, as it may suggest a cover up.
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 12 months ago.

The prosecution just posted a 4 page letter they received from OSBI to ASCLD stating their case in defense of the toxicolgist testimony. In the beginning of their defense he mentioned they consulted with 4 other experts in the toxicology field. She (Director of Criminalist Service Division) did not mention any feedback from them She also mentioned that in the labratory case file there was an opinion from an independent analyst. She said this opinion was provided to their analyst by the prosecution attorney prior to trial. She said the prosecution requested our analyst to review the opinion and provide feed back as he had only filed a misdemeanor negligent homicide charge out of concern the the state could not prove marijuana impairment beyond a reasonable doubt, yet Dr. R's opinion was that the defendant was impaired by marijuana. She also said that in addition to reviewing Dr. R. opinion they contacted the attorney who handled the civil case to see if their were transcripts of his testimony but the civil case was settled without the need for Dr. R's testimony...


 


First off I read that opinion by Dr. R. and it was totally biased and unscientific. He literally made up information he did not have like the time of use of the mj. This was a multimillion dollar lawsuit so he said what he had to say to win.


 


My question: is this even legal for the prosecution to give a biased report the the analyst who is going to be testifying in the trial in question?


 


The main point of OSBI letter was to try and discredit the studies attached to the APCR and to also say that their expert did not say the that 1-1.5 ng of thc will cause impairment but can cause impairment.


 


They specifically only reviewed the trial transcript because the language in that transcript does say "can cause impairment". But the fact is the language in the Motion Hearing did say "studies show 1-1.5 ng of thc will cause impairment" And the motion hearing was what caused the judge to allow the testimony into trial. She also argued that their can be different opinions on the same scientific study.


 


This letter was sent to ASCLD on Aug 8. The prosecution is just now posting it and sending copy to my son in response to the motion for exculpatory evidence. The letter overall I thought was weak. I especially noted she did not list a single comment from the four experts they consulted. She only mentioned the one expert that was paid thousands of dollars to help win a civil case. Again the question was it legal for prosecution to send this opinion to OSBI's analyst clearly to sway his testimony? Also the defense did not have a chance to cross examine Dr. R.

Expert:  MyraB replied 12 months ago.

Hello again.

What struck me most about the further information was your statement "She also argued that their can be different opinions on the same scientific study." This is interesting because that's not what she argued at trial, and that statement also supports your argument based on ineffective assistance of counsel. A defense expert could have refuted the prosecutor's expert. The studies you have, however, unquestionably support that there is no impairment at the level of thc found. And although the prosecution now has 4-5 toxicologists who agree, they have yet to come up with one scientific study that supports their position.

Your question: Is this even legal for the prosecution to give a biased report the the analyst who is going to be testifying in the trial in question?

Yes, it is legal. However, the report should have been disclosed to defense counsel at the time of trial so that the defendant could have used it while cross-examining the toxicologist. It is evidence of bias and influence and that he agreed with the other expert who was not available for cross-examination rather than make up his own mind. So, the fact that the opinion of the absent expert behind the testifying toxicologist was not brought out at trial either supports your argument of ineffective assistance of counsel because counsel didn't ask about any consultation or review of other opinions obtained by the prosecutor on which the expert opinion was based in discovery, and/or that the prosecutor withheld exculpatory evidence.

The reason that the toxicologist testified that it could impair rather than that it did impair is that experts in a criminal trial are only permitted to give testimony regarding hypothetical situations rather make a conclusion in a particular case that would invade the province of the jury. The prosecutor very well knows that the difference is barely perceptible and the distinction lost on a jury. If a jury hears that it can impair, and doesn't hear anything to contradict that, then they are likely to come to the conclusion that it did in the particular 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.
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Customer: replied 12 months ago.

You made this statement: "..Yes, it is legal. However, the report should have been disclosed to defense counsel at the time of trial so that the defendant could have used it while cross-examining the toxicologist......So, the fact that the opinion of the absent expert behind the testifying toxicologist was not brought out at trial either supports your argument of ineffective assistance of counsel because counsel didn't ask about any consultation or review of other opinions obtained by the prosecutor on which the expert opinion was based in discovery, and/or that the prosecutor withheld exculpatory evidence..."

Trial counsel in his motion for discovery requested specifically the following: (among other things) "..An opportunity to inspect, review, and obtain copies of reports, records, and/or other evidentiary material which is the basis for an opinion of a state's expert witness..."


Also the following: ".. An opportunity to inspect, review, and/or copy all evidentiary material and real evidence including copies of fingerprints, instruments , clothing or paraphernalia relating to the charge filed against thid Defendant.."


 


It appears to me that these two request should have covered the opinion the prosecution had in their possession and gave to OSBI toxicologist but not to trial defense counsel. So wouldn't this be failure to disclose exculpatory evidence? And if so how could this help the defendant at this time?


 


(I recall seeing the opinion by Dr R. in the office of the first attorney a year or more before trial(defendant had three defense counsels all together) but he got that opinion via email from civil case defense counsel. The attorney who was counsel at trial was never aware of it. Prosecution never gave defense a copy. The defendant had completely forgotten it by the time of trial.)


 


 

Expert:  MyraB replied 12 months ago.
"..An opportunity to inspect, review, and obtain copies of reports, records, and/or other evidentiary material which is the basis for an opinion of a state's expert witness..."

Yes, that request would have certainly covered the report that the prosecutor now admits the testifying expert was given to review and evaluate. It should have been produced to that defense counsel. The fact that it was not and may have been useful in the defense and cross-examination may be brought up at the hearing on the petition or if you want to supplement the petition. The drawback is that this other expert agreed with the testifying expert so your son may not want to be the one to bring it up before the judge. But, if it does come up, he can certainly make the argument that it should have been produced in response to requested discovery, and that it would have been useful to challenge the testimony of the prosecution's expert. Any withholding of exculpatory evidence is a Sixth Amendment violation, but there is a gray area where the evidence is useful for impeachment or to challenge a witness and is not directly exculpatory.
Customer: replied 12 months ago.

You made this statement: "The reason that the toxicologist testified that it could impair rather than that it did impair is that experts in a criminal trial are only permitted to give testimony regarding hypothetical situations rather make a conclusion in a particular case that would invade the province of the jury.."

 

However the toxicologist did testify in the Motion in limine hearing that it "did cause impairment" not that it "could cause impairment". He was under oath and his proffered testimony was to convince the judge that the defendant was impaired and he should therefore be allowed to testify in trial. If he had said in the hearing "could cause" impairment the judges opinion might have been different.

 

Is there some difference in the way he is allowed to phrase things in front of a judge in a hearing instead of in front of a jury? And again OSBI chose not to comment on his testimony in the hearing saying they were more concerned about what the witness said in front of a jury that might have caused a conviction. The fact is OSBI just did not want show that in the hearing he said "would cause impairment." But the point is if the expert had not convinced the judge the defendant was impaired in the hearing he never would have been allowed to speak to the jury.

 

I am adding this later. It appears that the botXXXXX XXXXXne still is if the defendant would have had an expert witness the out come of the hearing and trial would likely have been different. Wouldn't that still be the main point to focus on?

 

I am also thinking if I file a complaint with the attorney general they will want this report from OSBI. Wouldn't the fact OSBI did not review the motion hearing transcripts be important? And also the fact that they have not produced one sentence from any of their studies to support their arguments. The complaint including excerpts from hearing and trial. I am also thinking

Expert:  MyraB replied 12 months ago.
Is there some difference in the way he is allowed to phrase things in front of a judge in a hearing instead of in front of a jury?

Yes, there is a difference. He would not have been or should not have been permitted to testify that way in front of the jury, even if he testified to that at the motion in limine hearing. At the motion in limine, the judge was more concerned with whether any conclusion at all could be drawn from the level of thc.

Wouldn't that still be the main point to focus on?

Yes. And as I stated above, the prosecutor's statement that there can be different opinions on the same scientific study supports your argument based on ineffective assistance of counsel. A defense expert could have refuted the prosecutor's expert.

Attorney General and OSBI - It is likely the AG will want or get the report at some point in their investigation. The AG will likely want to obtain and review the hearing transcripts or you could provide those. The AG will conduct its own investigation. You can certainly argue that even though the OSBI expert and non-testifying expert agree they have pointed to no scientific studies or literature that supports their conclusion.
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 12 months ago.


Would it be appropriate to respond to the letter OSBI sent to the chairman of ASCLD? The defense did not have any comments about the letter. They just provided the letter as an attachment with their response to defendants motion for exculpatory evidence.


 


OSBI asked the experts 3 questions as follows: " In addition to reviewing the above documents, we solicited input from four different experts (two serving in leadership positions with the Scientific Working Group for Forensic Toxicology and two serving in leadership positions with the Society for Forensic Toxicologists. Specifically, we asked these experts whether their organizations had any guidlines (published or draft) which would provide expectations or best practices for testitifying regarding THC impariment, how quickly THC mebabolizes, and expected differences in THC concentrations and impairment if a sample is collected one hour post collision. We received feedback from three of the four individuals contacted..."


 


The defendant could respond that the letter did not use one line of information from the documents they reviewed to support any of their experts testimony. In addition the letter does not mention how the experts responded to the questions put to them and further, OSBI did not submit the most important question to the expert and that would be what level of THC causes driver impairment? This question and the others are not addressed in the letter. All they do is criticize the studies submitted by the defendant saying they are generally not unbiased, scientific studies


from peer reviewed journals and some of the cited studies reference outdated studies. But again they give nothing from their studies to support their expert's testimony. They also criticize the fact the our expert is not named and qualifications not given.


 


So the question is does this even deserve a response to prosecution's response since the prosecution had nothing to do with and is not commenting on the letter? Or would it be better to respond to ASCLD about what is missing in OSBI'S letter?

Expert:  MyraB replied 12 months ago.
Hello. I'm sorry I couldn't get back to you sooner.

I'm a bit confused. The defense did not have any comments about the letter. I think you meant the prosecution.

Also, I just want to know if I have the circumstances correct. OSBI sent the case to be evaluated by 4 experts, 3 of which responded. Was this for purpose of responding to the petition or at trial? How did they get a copy of the studies the defendant is relying on? Did the judge receive the letter from OSBI to ASCLD. I guess I need a better idea of where and how this letter fits in. This is different from your other question on whether the testifying expert may have been influenced by another expert, right? This has nothing to do with that, right?

Thank you.
Customer: replied 12 months ago.


No problem on getting back to me. I've been busy today also.


 


Your questions:" I'm a bit confused. The defense did not have any comments about the letter. I think you meant the prosecution." Yes I did mean prosecution.


 


"OSBI sent the case to be evaluated by 4 experts, 3 of which responded. Was this for purpose of responding to the petition or at trial?" No. OSBI asked four experts about the complaint made to ASCLD/LAB. Here is the beginning of the letter to ASCLD from OSBI in reference to my complaint of questionable testimony by one of their toxicologist, the one who testified at my son's trial:


 


Re: Allegations of Questionabel Testimony (Case #XXXXX OSBI Lab #)


 


Dear Ms (Chairman of of ASCLD)


 


Our laboratory has reviewed the above referenced allegations which we received July 16, 2013. After reviewing the documentation provided by ASCLD/LAB, our agency collected and reviewed the following addition documantations: Copy of the Application for Post Conviction Relief, OSBI Laboratory case File 2009-xxxx, Copy of trancript (portion containing analysts testimony during trial), OSBI training manual references and other relevant literary references. (Four reference manuals are listed).


 


In addition to reviewing the above documentations we solicited inputs from four different experts....


 


So that should clear up that question.


 


"How did they get a copy of the studies the defendant is relying on?" They got the copies from the post conviction relief application which is online on the court web site.


 


"Did the judge receive the letter from OSBI to ASCLD?" I don't know if the judge received letter or not but the prosecutor handling the post conviction relief received the letter and posted on line withe his response to motion for exculpatory evidence.


 


"This is different from your other question on whether the testifying expert may have been influenced by another expert, right? This has nothing to do with that, right? "


This was part of the same letter from OSBI to ASCLD.


 


 


 


 


 


 


 


 

Expert:  MyraB replied 12 months ago.
Thank you for the clarification.

Generally, there is no response required to the prosecution's disclosure made in response to a motion for exculpatory evidence. Unless you believe the judge would see the disclosure and, therefore, the letter from OSBI to ASCLD and might be influenced by it, then it does not particularly merit a response. In fact, the substance of the response that you've shared seems almost desperate.

The OSBI letter to ASCLD seems to be patently self-serving and defensive of their employee. It is remarkable that all they could come up with is that they reviewed the petition, documents, and studies, but all the experts agreed with the employee without revealing any basis for such agreement or with each other. Yes, it is amazing that still not one scientific, or even unscientific study, that supports the testimony. And what exactly is an outdated study when dealing with thc level? It seems that the effect would be fairly constant whatever the date of the study. A thc level of .1 now is the same as a thc level of .1 in a 20 year old study. So, I'm not sure what they mean by outdated. It's not like an area of forensic science where advancements can change the results.

I don't even know that it would be worth addressing a response to ASCLD. One, because they did not provide the letter to you for a response and had they wanted a response or to consider a response they would have had the courtesy to do so. And two, because they have already rendered their decision and appear to have accepted OSBI's version without any substantiation. How hard would it have been for ASCLD to tell OSBI, "thank you for your letter. Could you please provide us with any studies your experts used to form their opinion." I'm amazed the prosecutor hasn't asked. Their silence on that point seems to be a stronger argument then any you could make in response to the letter.
Customer: replied 11 months ago.

Sorry it has been so long in getting back to you. I have been dealing with personal issues from the time I sent the last series of questions. One problem was my computer was down for about 3 days due to a hacker.

 

Thank you for the information: I thought it might be good to respond to the letter to the court because I am sure the only reason the prosecution posted that letter is they felt it would help their cause and it is a good chance the judge will read it at some point. The following is a response. Let me know what you think.

 

 

COMES NOW the Petitioner, name, and hereby responds to the State Response to Petitioner’s Motion for the Production of Exculpatory and Mitigating Evidence.

 

The State does not acknowledge the receipt of any exculpatory evidence after the trial in this cause, however the State did attach a copy of a letter from OSBI to the Chairperson of ASCLD/LAB, the accrediting organization for OSBI laboratories. The letter, date Aug. 8, 2013, was in response to a complaint made to ASCLD/LAB about the questionable testimony of Mr. alleged in the Application for Post Conviction Relief in this cause at motion in limine hearing and trial on Nov 9, 2011. The complaint was made after the filing of the Application for Post conviction relief. The letter, signed by OSBI Director of Criminalistic Services Division, defends the testimony of Mr. as being based on scientific studies but gave no proof . Since the State filed the letter, the Petitioner responds to the main points of the letter as follows:

 

(1.) The letter notes that after receiving the complaint from ASCLD/LAB, OSBI reviewed a number of documents including two books about Marijuana. The letter states that " n addition to reviewing the above documents, we solicited input from four different experts (two serving in leadership positions with the Scientific Working Group for Forensic Toxicology and two serving in leadership positions with the Society for Forensic Toxicologists. Specifically, we asked these experts whether their organizations had any guidlines (published or draft) which would provide expectations or best practices for testitifying regarding THC impariment, how quickly THC mebabolizes, and expected differences in THC concentrations and impairment if a sample is collected one hour post collision. We received feedback from three of the four individuals contacted...."

 

Response to statements in point 1: With all the documents reviewed and experts consulted not one single word from the listed book and report on marijuana studies nor a single word from the experts consulted about several different questions related to THC was given in the letter to support Mr. testimony. Not only that, the most important question of all was not even asked. That would be does 1-1.5 ng/ml of THC in a persons blood cause driver impairment? This question was not asked of the experts nor did they quote from any of their reference books anything to support this statement made by Mr. .

 

However, an excerpt from a study found on National Institute of Health website (http://www.ncbi.nlm.nih.gov/pubmed/17916224), titled "Developing Limits for Driving Under cannabis" states the following:

 

"...A comparison of meta-analyses of experimental studies on the impairment of driving-relevant skills by alcohol or cannabis suggests that a THC concentration in the serum of 7-10 ng/ml (appr. 3.5-5ng/ml whole blood) is correlated with an impairment comparable to that caused by a blood alcohol concentration (BAC) of 0.05%. Thus, a suitable numerical limit for THC in serum may fall in that range..."

 

According to this study the amount of THC needed to cause driver impairment is 3.5-5 ng/ml in whole blood not 1-1.5 ng/ml that Mr.has stated in the Motion in Limine Hearing and trial.

 

That study found on the National Institute of Health website is by the same group of international experts who also wrote the larger more detailed study "Developing Science-Based Per Se Limits for Driving Under the Influence of Cannabis (DUIC)" which was used by the Petitioner as his primary evidence study in his Application for Post Conviction Relief. The letter spent a paragraph criticizing this study trying to minimize it’s credibility. But these experts are accepted as scientific experts by the National Institute of Health in the field of driving under the influence of cannabis. It would be difficult to find a higher level of credibility than that.

 

The letter also spends a lot of time stating one other expert(different from the four noted above) came to same conclusion that Mr. did but again gave no scientific references to back up that expert’s conclusions.

 

(2.) The letter also spends a great deal of time explaining the complaint overstated what their analyst, Mr., testified to. The letter says that the complaint alleged their analyst testified that concentrations of 1-1.5 ng/ml of THC will cause impairment, the trial transcripts show that their analyst testified that their analyst stated, "Studies have shown from 1 to 1.5 nanograms per ml of delta-9-THC in a person’s blood can cause a person’s ability to operate a vehicle to be somewhat impaired.."

 

Response to (2). That quote is correct. But the very next sentence in the transcript says the following:"..What those levels (1-1.5ng/ml) will normally cause is a decreased car handling. That means tracking on the road. They will lose some of that. They’ll have somewhat poor coordination. Their reaction time will be slowed. So their reaction time is essentially increased. It takes longer for them to react and stop the car than if they weren’t on it. They have drowsiness. They have poor psychomotor skills and disorientation of time and space..."

So the 4 sentences that followed completely destroys OSBI’S argument that their analyst, Mr. , only said can cause not will cause

.

Further OSBI did not address the statements in the Motion in Limine Hearing where their expert gave proffered testimony so the Trial Judge could determine if he would allow any marijuana evidence into trial. Perhaps they avoided the transcripts of the Motion Hearing because Mr. also says 1-1.5 ng/ml will impair...

 

On page 9 of the Motion in Limine Hearing transcript Mr. says: "..It’s going to be my opinion that all the studies that I’ve read and the training that I’ve had, concentrations that we found in Mr's blood, which is 1.1 nanograms per ml of blood, is significant to cause a person’s ability to be some what impaired operating a motor vehicle. Concentrations of 1-1.5, the studies have shown, will impair a person’s ability to drive a car to different extent on different individuals.

 

So again these statement of Motion in Limine Hearing completely destroys OSBI’S argument that their analyst, Mr. , only said can cause not will cause. In this case will impair.

 

. In a concluding paragraph the letter says, " As I mentioned above, we have conducted a preliminary review of documentation and have determined from that review that their is scientific data to support our analyst testimony..."

 

The letter states that OSBI has determined that there is scientific data to support their analyst testimony but they did not produce one word of evidence to support Mr. testimony.

 

The three challenges in the Application for Post Conviction Relief and the complaint were that there was no evidence to support Mr. statements that:

 

1. 1-1.5 ng/ml of THC causes driver impairment,

 

2. That THC cannot be detected in the blood within 4 to 6 hours,

 

3. And that he could tell with "scientific certainty" that the level of THC was higher one hour before blood was drawn without knowing the time THC was ingested and without knowing the amount of THC ingested.

 

These challenges still stand. After presenting 3 pages of arguments OSBI did not present one word of evidence from their 4 experts or their studies to support Mr. statements or refute the statements the Petitioner provided from studies that disagree with Mr. statements.

 

WHEREFORE, The Petitioner respectfully XXXXX XXXXX Court see the information in the letter from OSBI to ASCLD/LAB as a desperate attempt by OSBI to help Mr. but provided no evidence to do so.

Expert:  MyraB replied 11 months ago.

Thank you for your response.

There are some typos throughout, but I expect that you will correct these prior to sending the response.

defends the testimony of Mr. as being based on scientific studies but gave no proof.
rather than "but gave no proof" you may want to change this to "but neither referenced any scientific studies nor other objective proof that support the testimony.

That would be does 1-1.5 ng/ml of THC in a persons blood cause driver impairment? This question was not asked of the experts nor did they quote from any of their reference books anything to support this statement made by Mr. .
After the ? This was the question that Mr. was asked at trial and to which he answered affirmatively. (You may want to add here that he stated at trial that he based his decision on scientific studiesYet, this questions was not asked . . . .

Great argument based on the transcripts.

The letter states that OSBI has determined that there is scientific data to support their analyst testimony but they did not produce one word of evidence to support Mr. testimony.
You may want to change the second reference to "support that testimony." Otherwise, it's a unclear.

their 4 experts or their studies to support Mr. statements or refute the statements the Petitioner provided from studies that disagree with Mr. statements
If the experts are not named, you can refer to them here as "their four phantom experts or purported studies."

Also, before the Wherefore you may want to mention that it also supports the ineffective assistance of counsel claim because counsel never requested a Daubert hearing and at the motion in limine did not ask on which studies the expert relied for his conclusion. It is clear now that no such studies exist and the state's expert's testimony could have been successfully challenged on it's lack of scientific basis.

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Customer: replied 11 months ago.


A couple of questions just came to mind.

 

Since OSBI completed this investigation on their on expert and it appears to be a deliberate coverup, what do you think think an AG investigation would do to the director who signed the letter in this investigation if in fact the defendant filed a complaint against the expert and the director who signed the letter?

 

Also OSBI stressed a lot that their expert used the term can cause impairment, not will cause impairment, but it turns out he use the term will cause impairment much more often than he use can cause impairment in the hearing and trial. (He actually only used "can cause" in the one sentence they quoted) Again, how do you think an AG investigation would view this since we have outlined it very clearly in the response?

Expert:  MyraB replied 11 months ago.
Hello again.

It's hard to tell what an AG investigation will do. I would hope that it would be fresh and unbiased and look into all aspects of the complaint. It is not unusual for an organization to circle the wagons to protect one of their own, so the AG may not see it as a cover up although it certainly may look that way to an outside observer. As I believe I mentioned before the AG could report adverse findings to the court and mandate that steps be taken to prevent a recurrence of the situation. It is more likely that the AG would find that any errors resulted from negligence rather than intentional conduct. It is unlikely heads would roll or anyone would be fired, though there may be some admonishment or discipline involved.

The expert's use of will is troubling, especially at trial as it leaves no room for doubt and concludes that it will happen in every case. OSBI seems to have realized the importance in the difference by making an issue of it. So, it certainly helps your argument that you can counter by pointing out that in reality the expert used "will" far more ofter than "can." I expect the AG may view the expert's use of will rather than can as unfortunate and negligent, rather than deliberate. It was really up to defense counsel to object if the expert's testimony went beyond the bounds of acceptable opinion. So, it really does come back to the ineffective assistance of counsel argument.
Customer: replied 11 months ago.

Thanks for your response but what does a person have to do for AG to do something? The agent had no studies to support what he was saying. He repeatedly lied under oath. With 20 years of experience he clearly knew he was lying. I just want to be clear. It sounds like you are saying even if a complaint was made to AG nothing would happen. Is my understanding correct?

Expert:  MyraB replied 11 months ago.
My best guess is that I don't know what would happen. If the AG investigated and found this was an isolated incident then it would take action appropriate to that finding. However, if the AG found that there was more to the testimony than negligence then I would expect the reaction to be different to reflect that. For example, you stated that there was a political overtone to the case. If the AG found that outside influences skewed the expert's testimony or the prosecutor's enthusiasm beyond acceptable boundaries, then that would be a consideration. If the AG found that this case was the tip of the iceberg and that the same issues could bring other cases and convictions into question, then the AG reaction would reflect that. Therefore, it is really difficult to say what would happen. The best you can hope for is that when you make a complaint and provide the information, the AG will do his job.
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