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Wanderland

Who was in the Wrong?

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My boyfriend ( who is incarcerated in Oregon ) was told by his appellate attorney that the transcript of the first trial would not be used in the second trial because it would violate his due process rights. However, in his second trial, they did end up using that transcript against him and decided to uphold his conviction. What I would like to know is who would be in the wrong? The attorney or the court? If the attorney was wrong, would that be grounds of improper counseling for a post conviction case? Thank you for responding.

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6 minutes ago, Wanderland said:

in his second trial, they did end up using that transcript

 

I assume "they" refers to the prosecutor.  Specifically how did the prosecutor use the transcript from the first trial?  Can you briefly summarize the portion(s) of the transcript that were used?

 

 

7 minutes ago, Wanderland said:

and decided to uphold his conviction.

 

I assume that, at his first trial, he was found guilty, that his conviction was overturned on appeal, and that, at the second trial after the appeal, he was found guilty a second time.  Correct?

 

 

8 minutes ago, Wanderland said:

What I would like to know is who would be in the wrong? The attorney or the court?

 

No way to know without the information I mentioned above, and there are probably several other issues that come into play (e.g., the basis of the appeal and the appellate court's reversal of the first conviction).  It's possible that neither were wrong (although an unequivocal statement that the transcript from the first trial cannot be used in any way during the second trial after reversal and remand would not be correct).

 

It would also be helpful to know what your boyfriend's attorney told him when he asked why the transcript was allowed despite what he had been told.  However, I do not encourage him to reveal (to you or anyone else) the details of communications with his attorney.

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I'm afraid I myself would need more information about what portion(s) the transcript was used. He was convicted during his initial trial, but he appealed saying that the court denied his right of self representation and he was given a reversal and a remand. Before his second trial, he asked his attorney via letter about the possible use of the old transcript in the second trial and he received a reply telling him what I stated in the original post. If the statement from his lawyer about the prosecutor not using the first transcript from the initial trial would be incorrect is that improper counseling?

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Not exactly.  If the witnesses in the first trial were unavailable, then their prior testimony at the new trial would be admissible.  Even if they testified, they could be questioned about their prior testimony.  If they were available to testify at the second trial, then it is improper to admit the testimony from the first trial BUT a proper objection has to be lodged.  If your boyfriend represented himself at the second trial I doubt he was equipped to make the proper objections.  The rules of evidence are very complex and sometimes even lawyers mess up.

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1 hour ago, Wanderland said:

If the statement from his lawyer about the prosecutor not using the first transcript from the initial trial would be incorrect is that improper counseling?

 

I guess that would be an apt term, but it's not one that has any particular legal meaning.  Moreover, if this attorney didn't represent your boyfriend at the second trial, then it doesn't really matter.  What would have been different if, instead of saying, "they can't use the transcript," the lawyer had instead said, "they may be able to use the transcript; depends on the specifics"?

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