TAHLEQUAH, Okla. (AP) _ A woman convicted of killing her husband in June 2003 should get a new trial because she received ineffective counsel during the first proceeding, a Cherokee County judge has ruled.
The Oklahoma Court of Criminal Appeals ordered Associate District Judge Darrell Shepherd to conduct an evidentiary hearing after Pearl Lynn Smith said her attorney, Park Medearis, didn't present a battered woman syndrome defense.
A jury convicted Smith in 2004 of second-degree murder in the June 2003 fatal shooting of Thomas Smith at their rural home in Eldon, and a 28-year prison term was recommended. Prosecutors had sought a first-degree murder conviction and a sentence of life without the possibility of parole.
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 her about the importance of using battered woman syndrome as a defense.
Pearl Smith 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.''
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 affected 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.
First Assistant District Attorney Donovan Dobbs 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.
``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.''
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 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.
``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.''
Medearis said a letter from the expert mentioned a $2,000 retainer, and he didn't believe her involvement in the case through trial would have been much more than that.
``... 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.
But Smith testified the land was tied up in the probate, and that she sold a pickup truck to pay part of Medearis' flat fee.