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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 117369
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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If a defendant files application for post conviction relief

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If a defendant files application for post conviction relief and in that application he brings out information about meetings with his defense counsel to show very clearly the attorney knew very well that he needed an expert drug witness but repeatedly said his department did not have any money and the judge would not give him a continuance anyway and never filed any motion for continuance or made any attempt to file application with Oklahoma Indigent Defense System (his employer), would the defendant be called by judge in a hearing to testify about what defendant put in application about the meeting? And will defendant have to answer any questions about the trial since he chose not to testify during to trial? In other words if he has to testify will his testimony be limited to the subjects he brought up that are not in the transcripts?
Thank you for your question and for asking for me.

The defendant is never called to testify in a hearing pursuant to his 5th amendment rights, but he does bear the burden of proving that the attorney did know that an expert should have been used and he would do that by presenting another legal expert to testify and to testify that the attorney's actions were not up to legally accepted standards and the expert would have likely made a difference in the outcome of the case.

Once a defendant gets on the stand, they have to testify to pretty much everything asked and this is why usually another attorney is used to testify to what should have been done by the first attorney.

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Customer: replied 4 years ago.

So if the defendant is indigent and can't afford an attorney and he does not want to testify about what he put in the application. What does the judge do just ignore what he said. In this state he can't get counsel for post conviction relief after the direct appeal unless it is a capitol crime.

The defendants father was there in the meetings and could testify that what the son was saying was correct. Will that help any?

He still does not have to testify, he merely has to produce evidence that the attorney did not provide the expert and that the expert would have made a difference in the outcome of the trial.

This means you will at least need to get the expert to testify in court as to what information they could have provided or you somehow will have to prove what information they could have provided that would have changed the outcome of the trial.
Customer: replied 4 years ago.

Ok so he can use court records to show attorney never got an expert and previous Supreme Court and State Appeal court decisions to show expert is required to be effective counsel, right?


He also has an expert with very good credential willing to testify but he does not want his name and credentials put in the application until he gets $2000 retainer fee. The defendant wants to say something like" I have located an expert pathologist with Phd who is willing to testify against the prosecution witness and explain that 1ng of thc has to effect on a person driving or drowsiness. He will also testify that thc stays in the blood longer than 4 to 6 hours even up to days and or weeks depending on the person. This is directly opposed to the prosecutions expert testimony . However the the expert wants his retainer fee or some agreement that he will be paid before his name is XXXXX XXXXX the record. The defendant request that the state pays this needed expert since it failed to get him an drug expert for trial and this is the primary reason he is in jail today. The defendant is more indigent now than he was prior to going to jail. Do you think the judge will go for this?

Thank you for your response.

Yes, he would use the transcripts and previous proceedings showing no expert was called. He should also call the prior attorney as a witness to ask why no expert was called to get the attorney to testify that no money was made available in the indigent program to hire such experts.

The expert will have to put something at least in the form of an affidavit as to what they could have provided that would have changed he outcome of the case. The court needs to know why this expert was necessary. He has to convince the court somehow that the expert would have made a difference and if the expert would not agree to at least an affidavit, then he will need to allege in his complaint for post conviction relief that the expert will testify that this is the case or at least include some scientific study that shows what the expert is saying is correct.
Customer: replied 4 years ago.

Ok this sounds really great. So the defendant being pro se can ask the court to subpoena the trial attorney and at the hearing the defendant can ask his past attorney why he did not get an expert. Is my understanding correct.?

And the defendant can allege in his complaint that the expert will testify to what I mentioned in last post and that should be enough. Right? the defendant can also get a study from the web that is consistent with what the expert will say.


What are the chances the judge will have state pay for the expert since the defendant is indigent?

Thank you for your follow up.

Yes, he can subpoena the trial attorney to testify to why the action was not taken. If you prove that the expert would make a difference, then there is a good chance the court will order payment for the expert.
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Customer: replied 4 years ago.

What should have happened in this case where the defense counsel alleged there were no funds for an expert? Would this have been grounds to file a motion to dismiss the case?

Thank you for your follow up.

The defense counsel should have made a motion to the court to order funds or order that the state pay for such an expert for the defense if they had grounds to believe that the testimony of such expert could change the outcome of the trial. It would not be grounds to necessarily dismiss the case, as the judge can always compel the state to pay for an expert or to provide an expert who will testify in the defendant's behalf.
Customer: replied 4 years ago.

Great news. So with all this information what are the chances of defendant winning post conviction relief if everything is done properly as far as the application and hearing?


He also has two occasions where he was not given his miranda rights. One occasion the officer on the scene of accident had him sit in police car and fill out accident report where he admitted he fell asleep at wheel due to exhaustion and heat. The police officer then took him to hospital where he took a mandatory blood test for intoxicants.


The other occasion after his blood test came back positive for thc about 4 months after accident, the same officer came to his house and asked him to step outside to answer more questions about the accident. The officer also told him he the blood test came back positive for thc and asked defendant when did he smoke mj. The defendant told him the morning of the acciden before going to work. (Accident was about 6pm)

The officer told him he would probably be cited for traffic violations but DA charged him with negligent homicide. He was not charged with DUI or DWI.


Should the Miranda violations be added to the complaint. I understand he was not completely in custody but wouldn't this be custodial custody since the defendant did not feel that he could disregard the officer's instructions or questions. Or would the Miranda just dilute the strong case of not having an expert witness?

Thank you for your response.

If he was not suspected of any crime at the time he filled out the police report, Miranda was not required. Also, under the State Implied Consent laws, any time serious injury or death results from an accident, blood/alcohol testing is mandatory and Miranda rights are not required, because when you sign for your license you agree to the implied consent laws. Thus, the Miranda argument would not help him in this situation I am afraid.

In order for them to charge him with negligent homicide, they did not have to actually charge him with DWI, as long as they prove he was under the influence. Under Oklahoma law, for intoxication on drugs it is a "zero tolerance" state, which means that the presence of any illegal substance regardless of the quantity is sufficient to prove intoxication I am afraid.

The statement taken by the officer when he came to the house to arrest him would be inadmissible in court for failure to advise of Miranda, since at that point the officer knew he was going to arrest him and if this statement was introduced in court then you can raise that as an error based on failure to advise of Miranda and his attorney should have raised it in court and if he did not then this is ineffective assistance of counsel.
Customer: replied 4 years ago.

Ok but the officer did not arrest him at that time but a warrant was put out for his arrest a couple of months later. But it is clear the officer was coming to his house to get information that would be used against the defendant in court and it was. The officer's statement in court that the defendant smoked mj the morning of the accident was a very big factor in his conviction and the judge in the hearing said that statement along with the statements of the prosecution expert witness that his driving was impaired and drowsy due to mj use was the reasons he was going to allow the mj evidence into trial.


Would that make that make a difference in this case that the officer did not arrest him that day? Do you still think this info about him smoking mj morning of trial still inadmissable due to miranda?

I understand, but if he came back 4 months later, at that time he was a suspect of a crime and was being questioned about committing a crime, so Miranda had to be given and failure to give Miranda was grounds to have the statement about smoking MJ that morning of the accident suppressed and thrown out.
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Customer: replied 4 years ago.

You said in last post "..but if he came back 4 months later, at that time he was a suspect of a crime and was being questioned about committing a crime, so Miranda had to be given and failure to give Miranda was grounds to have the statement about smoking MJ that morning of the accident suppressed and thrown out."


I remember reading something like that before. Do you have any idea the opinion that this particular reason for applying Miranda came from?

The reason Miranda would apply to the second instance 4 months later is that Miranda must be provided any time a person is a suspect of a crime and is being questioned about that criminal offense.
Customer: replied 4 years ago.

Is that a part of the Miranda vs Arizona decision?

Yes, it is part of the Miranda decision.
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