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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 116795
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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For PaulMJD: In response to a petitioners application for

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For PaulMJD: In response to a petitioner's application for post conviction relief the State claims that the petitioner's one proposition of error, which is ineffective counsel due to not procuring an expert witness: "..It appears from the face of the application that all the issues raised are barred by waiver and res judicata and no fundamental error and no plain or fundamental error is shown by the petitioner..." The petitioner also found new evidence that what the prosecutions expert was saying was erroneous. The state did not address this issue except to say that the petitioner could have been found guilty without any input from their expert witness. What are some points you can think of to counter the prosecutions statements?
Thank you for your new question and asking for me.

The fact the prosecutor did not mention or address the new evidence means they do not have an argument for that or they intentionally avoided it. Thus, your response should be focused on that new evidence showing that their expert was erroneous.

Your argument is that the Oklahoma statute on driving while intoxicated (until November 2013) states: Is under the influence of any intoxicating substance other than alcohol which may render such person incapable of safely driving or operating a motor vehicle. Thus, you argue they did not prove he was incapable of safely driving or operating a vehicle.

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Customer: replied 4 years ago.

If the defendant shows the evidence was erroneous could the defendant be found not guilty? I ask that because in the motion in limine hearing the prosecutor repeatedly stated she needed the marijuana evidence in trial to prove element three of the charge which was willfull disregard for the safety of others. So if the defendant has proven the experts testimony was erroneous and the defendant was not impaired at the time of the accident, by the prosecution's own admission they have not proven element three of the case. So shouldn't that mean the defendant is not guilty?

Thank you for your response.

No, it is a bit more than that. You have to show not only was their evidence erroneous but he was also capable of safely driving or operating the vehicle. That is why I highlighted that term. So the prosecution will argue even absent the expert testimony, because he got into an accident he did not safely operate the vehicle and that is what you have to overcome (perhaps showing the accident was from no fault of his own).
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Customer: replied 3 years ago.

During the post conviction relief proceeding, someone ordered just the testimony for the criminalist who testified for the prosecution about what 1.1 ng of thc would cause a person to do.. The defendant's relative asked the court reporter why only the testimony for that witness was filed. She simply responded that the person who ordered it only wanted that testimony, so once it was ordered she filed it.


Some background is the relative contacted ASCLD who accredits OSBI 2 weeks before this happened about erroneous testimony from the OSBI Toxicology expert. The relative also gave the ASCLD some information from the testimony from trial and prehearings by this expert. The executive director from ASCLD assured the relative a week before this testimony was filed by the the court reporter, who typed the transcripts at trial and who is also the trial judge's personal court reporter, that he would look into the situation as soon as possible.


So I am wondering if this excerpt from the transcript of just the expert testimony was ordered by ASCLD. What do you think?


The relative did not ask who ordered it thinking the court reporter would not tell him since the person who ordered it was not filed. Would she be obligated to tell who ordered that portion of the transcript if asked?


If the judge or DA wanted just that testimony they would not have to order it would they? I am trying to figure out who ordered that testimony.

Thank you for the update.

The court reporter can tell you who ordered the record she had to transcribe, so you can ask her. As far as the reasoning, if they are investigating his testimony then they would only order the testimony necessary to investigate as they still have to pay for that testimony.
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Customer: replied 3 years ago.

In reference to your last post, the court reporter just told me that the the testimony was requested by OSBI Lab. Do you think that means an investigation is going on?


If there is investigation going on is the judge likely to wait until the investigation is over to make his decision on the post conviction relief issue?

Thank you for the information update.

Yes it appears that they are investigating your complaint, but I would never suggest on waiting for an investigation in case they try to sweep it under the rug and you should proceed with your own information and investigation for your case.
Customer: replied 3 years ago.

The defendant has done everything he can do at this point. Most recently he responded to states response to his petition. That was about a week ago.


Nothing has happened since then. The defendant assumed the judge will need some time to review all the information he has, but just wondering if the judge himself might try to delay things until he hears something on the investigation. He surely knows about the request for the transcript since it was his court reporter. So my question was do you think the judge will try to delay the proceedings?

If he has done everything that can be done at this point he has nothing more to do but wait for the to complete their investigation, which would be public record when completed so you need to keep on them about the investigation so you can find out the results when the finish.
Customer: replied 3 years ago.

You said the completed investigation will be public record, will OSBI notify the judge when it is over?

The investigation was prompted by ASCLD which was due to my complaint to them. So ASCLD should contact me and OSBI should contact the judge when investigation is done. Is that correct?



I do not know if I would trust them to notify the court. I would keep checking and keep checking with ASCLD for the outcome and you would raise the fact in the appeal that the investigation is being done and you do so filing a motion to the court to ask the court to hold off on the appeal until the investigation is completed and this is an option to put the court on notice of the investigation.
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