An area judge will recommend the Oklahoma Court of Criminal Appeals grant a Cherokee County woman a new trial on a first-degree murder charge after ruling she had ineffective counsel during her first trial.

Associate District Judge Darrell Shepherd made the ruling at the conclusion of a two-day evidentiary hearing ordered by the appellate court to determine whether Pearl Lynne Smith had ineffective assistance of counsel from local attorney Park Medearis.

A jury convicted Smith in June 2004 of a lesser charge of second-degree murder and recommended a 28-year sentence, imposed by Shepherd.

Shepherd said he didn’t understand why Medearis would be so “particular” in wanting the waiver of his attorney-client privilege with Smith on the record, yet would not keep any record of his discussions with Smith about the importance of using battered woman syndrome as a defense.

First Assistant District Attorney Donovan Dobbs said Medearis was effective in his representation of Smith. He said Medearis told Smith about the importance of battered woman syndrome, but she decided not to pay an expert because she believed she would be convicted, regardless of her defense. Medearis later concurred with that statement.

“Obviously, he was somewhat effective,” Dobbs said. “Mrs. Smith was charged with first-degree murder, and he presented enough of a defense that she was convicted of second-degree murder and only sentenced to 28 years.”

Dobbs said the first-degree murder charge carries a possible life without parole sentence, and second-degree murder carries a possible life sentence.

“We [prosecutors] were going for first-degree murder and life without parole,” Dobbs said.

Smith, who wept openly at the counsel table where she sat with members of her appellate defense team when the judge made his decision, was represented by Medearis at trial. Medearis testified Monday afternoon but was not present when Shepherd announced his ruling. The Court of Criminal Appeals will ultimately determine whether Smith receives a new trial.

The appellate court ordered Shepherd to have the evidentiary hearing after Smith raised the issue that Medearis failed to present a battered woman syndrome defense. She also alleged he failed to speak to witnesses and visit the crime scene to conduct his own investigation.

“It wasn’t contested that Pearl shot him,” Medearis testified. “She told how it happened and there was nothing to dispute what she said.”

Medearis, who was paid $15,000 to represent Smith, said Smith gave him a floor plan of the house and the names of witnesses, and he saw no need to visit her residence.

Shepherd said the testimony concerning battered woman syndrome would have been admitted as evidence if offered.

“There is a rather high likelihood it would have effected the outcome,” the judge said. “I don’t think it was trial strategy [that it wasn’t offered]. I think it was a lack of ability on the part of Mr. Medearis to impress on Mrs. Smith the critical nature of having this evidence.”

He also said Medearis’ failure to visit the crime scene seemed to be a “secondary issue,” but he believes the defense counsel should have viewed the scene.

Medearis said it was Smith who chose not to use the battered woman syndrome. He said she told him she didn’t want to spend the money for the expert.

“She was my boss,” he said. “I did what she wanted to do.”

Shepherd asked Medearis how forceful he was in recommending Smith use the battered woman syndrome defense. Medearis said he talked several times with Smith about her defense and she told him about verbal, physical and mental abuse she endured from the victim.

Medearis testified he located an expert on battered woman syndrome, but the witness told him abruptly that he no longer took this type of case. He said he encouraged Smith and her daughter to find an expert witness who could examine Smith and then testify concerning whether she had battered woman syndrome.

“I don’t think I specified what the qualifications would need to be,” he said. “Common sense would tell you that you would want someone who could do the examination and testify in court.”

He also testified it would have been the expert’s duty to tell Smith whether he or she was qualified for such an examination and testimony.

Smith’s appellate defense team took Medearis’ case file several days before the hearing for copying. He said Monday afternoon some of the items – including one expert witness’ resumé – was not in the file when returned by the public defenders.

Medearis said a letter from the expert mentioned a $2,000 retainer. He said he didn’t believe her involvement in the case through trial would have been much more than that.

“She seemed fine financially,” he testified. “I didn’t see the need to ask for the court to pay [for an expert]. She posted a $100,000 bond and she paid me. I didn’t think she was indigent.”

Medearis said Smith had 10 acres of land free and clear, a car, home and telephone. Smith testified the land was tied up in the probate. She sold a pickup truck to pay part of Medearis’ fee. He said he wasn’t retained by Smith, but she paid a flat fee for his representation.

“I believed she had the financial where-with-all to afford the expert, if she wanted to use that defense. “That [battered woman syndrome] is the defense I hoped to advocate for her.”

He said the decision not to use battered woman syndrome was not one he would have made on his own.

Medearis said he disagreed with prosecutors about how much of a witness’ testimony had to be revealed before trial. He said that prevented what he believed were some minor parts of testimony from being presented at trial, but he believes they got in all the defense’s major points as evidence.

Smith said Medearis represented her and her daughter in a carbon monoxide poisoning case, and some of that settlement was used to pay Medearis for representation in the murder case. She said she recalls telling Medearis about the domestic violence issues.

“I was pretty shook up,” she said. “But I tried to tell him everything that happened.”

She said Medearis told her and her daughter to find a battered woman syndrome expert. She also said there were times Medearis cut meetings with her short.

“I left there [Medearis’ office] crying,” she said. “He said he had other things to do.”

Smith testified she had a very small income from her 27 dairy goats. None of them are females and she was milking two of the nine.

She said Medearis suggested she seek Veterans Administration benefits, and they were denied. She said she didn’t work between the time she got out of jail on bond June 18, 2003, and her trial. She ultimately said she didn’t work because of recent hand surgery, from which she didn’t fully recover until she was in prison.

“I was splashed all over the papers,” she said initially. “No one was going to hire me.”

Smith said she was also busy with estate issues.

“Every time I turned around, something else would happen,” she said. “And I have a heart defect. I’m on blood pressure medicine.”

Dobbs asked Shepherd to require Smith to answer his question and nothing more. Shepherd admonished her to only answer the question.

“I’m trying to, but he’s [Dobbs] being combative,” Smith said. “I was quiet before and it was used against me.”

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