There is reason to believe that the case brought against Raye Dawn Smith may have had

sufficient irregularities as to call into question the basic fairness that is the linchpin of our system

of justice. An innocent woman has been convicted of a crime she never committed. In addition, she

lost both of her children, one to death (most likely a homicide) and the other to the bureaucratic

sweep of the Department of Human Services. These miscarriages of justice are. happily, only

occasional, but they do happen. In this case, the miscarriage was not accidental or inadvertent. It

was the result of a deliberate plan which was instigated from the venomous hatred of the Defendant

by her former mother-in-law, the bizarre, erratic, and unsettling behavior of her abusive former

husband, an insatiable appetite of the hyenas of the media built on sensational and untrue rapid fire

"coverage" as "news" so that they shaped the events and public perception, and finally the trial itself.

If there is a parallel to another recent case, it would be the Australian woman Lindy Chamberlain

who was convicted in 1982 of killing her 9-week-old daughter, Azaria. There, as we now know all

too well, half-baked and overstated incriminating forensic evidence and a profile infused with

given a sentence of life. Four years later, she was released. The "evidence" proved to be "cooked"

and "unsafe." Americans are, of course. familiar with the story through the talents of Meryl Streep,

who played Chamberlain in "A Cry in the Dark." That case, and this one, are cautionary notes on

how flawed evidence, perjury, overzealous prosecution, and a public campaign of vilification

together with intrusive rampaging media which practiced no restraint of truth telling, objectivity,

balance or fairness can influence unfairly the outcome and skewer justice. Like a plague of locust,

the media descended upon all participants and simply ran over those in their path, egged on as they

were by a self-seeking and self-promoting ex-husband and ex-mother-in-law.

Part of the reason these miscarriages are rare is that courageous courts and district attorneys,

acting in their roles as officers of the court, are the last safety valve. See, for example, the story of

President Roosevelt's First Attorney General, Homer Cummins in William Kunstler's, "The Case

for Courage." See also Norris v. Alabama; 294 U.S. 587,55 S.Ct.579,79 L.Ed. 1074 (1935); Powell

and the "Scottsboro boys." Here, there was no safety. This jury should have been sequestered, kept

alert by the court, and together during recesses with a confident determination to avoid

contamination resulting from any leaking of prejudice stirred up most often by the Briggs family.

The Court failed to meet this responsibility in a meaningful manner. The prejudice was more acute

in this case because the trial was held in Creek County on a change of venue that was in reality no

change of venue. The case was moved about 40 miles down the Turner Turnpike to the tiny

municipal building of Bristow in a small courtroom where witnesses, parties, lawyers, jurors and the

media constantly mixed among each other. These circumstances were clearly obvious to all, but only

a fonnal and ritualistic cant was used to advise the jury to avoid being put in this situation. In such

a small town with limited lunchroom facilities, the jurors, media and particularly the Briggs family,

but also everyone else, generally gathered at the same small restaurant where conversations and

media reports of the trial could easily be overheard. Had this case, for example, been moved, as it

should have been, to a larger, more metropolitan county, such as Cleveland, Payne, Washington,

Muskogee or Altus, then this condition would not have occurred. Instead, the venue was not even

transferred to another county seat. It was merely transferred to a division of Creek County, down

the road to an adjoining county2 where the trial court's brother was also a district judge. These

comments are not made as personal criticism. Far from it. They are made as a frank recognition of

the failure of judicial control of the atmosphere of this trial which permitted the miscarriage to occur.

prosecution. For there can be no miscarriage of justice unless there is a prosecution. Ordinarily,

public prosecutors are known to their communities, elected, and subject to some professional and

judicial restraint, and self-restraint. For "our system of criminal justice necessarily depends on

277,285,64 S.Ct. 134,88 L.Ed. 48 (1943). "A prosecutor must draw a careful line ... he should be

236,253,63 S.Ct. 561,87 L.Ed. 734 (1943). His "interest therefore in a criminal prosecution is not

that [the prosecution] shall win a case, but that justice shall be done. While he may strike hard

629,79 L.Ed. 1314 (1935).

What occurred here is clear enough. The former mother-in-law of the Defendant ran a public

relations media campaign composed of continuing efforts to solicit comments from the media, to

appear on television programs, and to thrust herself and her family forward to capture public

attention. And then, when captured, to use that "indignation" which she stirred up through a mixture

demonstrated no small amount of political prowess. She assisted the Defendant's former attorney.

4

who had represented Raye Dawn in her divorce from Mrs. Briggs' son, actively to campaign against

Judge Craig Key. See Oklahoma Rules of Professional Responsibility Rule 1.8(b). Once Judge Key

was defeated in a campaign that should have involved the appropriate judicial and professional

authorities to call a stop to, then, in all likelihood, Mr. Smothermon realized his own political

vulnerability to Ms. Briggs. So, he allowed the prosecution to be shaped, not by an impartial

evaluation and balancing of the evidence, but by his own desire to continue in office and a sense of

political opportunism.

Attorneys are residents of Oklahoma County. The District Attorney of Oklahoma County, David

Prater, resides there, and the occupant of the office of District Attorney for Pottawatomie and

Lincoln Counties resides there. Richard Smothermon is not a bona fide resident in good faith in his

Shawnee. He is not. He does not live in the residence, and as far as can be determined, has never

lived there while district attorney. He lives in Edmond, Oklahoma, with his wife. He sleeps there

at night, he parks his car there, and he shops and does everything from his laundry to automobile

repairs in and around Edmond, Oklahoma: No effort is maintained, really, to disguise this fact.

Almost every night he is in Oklahoma, his personal automobile can be found parked in front of the

Edmond home that he owns and lives in with his wife, Connie. The house in Shawnee is owned by

his wife, purchased after he was elected District Attorney and before their marriage, and on almost

all occasions, a pickup is parked in the driveway. Though the evidence is not overwhelmingly clear,

more likely than not this pickup is used for various [undercover] drug operations. It is infrequently

moved. and its license plate is changed. The identity of its owner is blocked in the public record.

Mr. Smothermon has never been the duly elected and qualified District Attorney of District 23. He

has never met the most elementary requirement: he is not a resident of the District. His lack of

residential qualification is not a technicality. It was difficult enough more than 40 years ago to enact

the District Attorney System. The Legislature was very specific on funding, lawyer qualifications,

terms, prohibitions against seeking other public elected offices while serving as district attorney. and

residency. The system of "Rotten Boroughs" was not authorized. Legislators, judges. firemen,

fail to do so can result in removal from office, to falsify residency can result in a felony criminal

conviction, political or personal convenience notwithstanding. Richard Smothermon's claim of

residency in Shawnee appears to be a public fraud.

Consequently, he had no authority to investigate or prosecute this case and, apparently,

continues as a prosecutor by a lie. But, this is not the only professional failing. Mr. Smothermon,

the "District Attorney," does not actively try cases. In any high-profile, controversial case. he

employs a lawyer in private practice who engages in criminal defense work at the same time she is

an "assistant district attorney." She, too, is a resident of Oklahoma County, or at least not a resident

she is the assistant district attorney. This dual role is prohibited. In most of the cases in which they

appear, Mr. Smothermon does the public work with the media and she does the courtroom work.

while practicing private law in her regular occupation, including criminal defense (with an office in

the same building as Ms. Smith's undersigned counsel). Because she is not subject to the same rules.

regulations and professionalism of truly duly certified assistant district attorneys, she commits

misconduct in the courtroom, and her manner of presenting evidence and arguing is directly contrary

to established decisions of the Oklahoma Court of Criminal Appeals. Such behavior has been

condemned and judges who did not control it have likewise been criticized by the Court of Criminal

Appeals.

These allegations, while serious, are supported by an abundance of evidence and they are a

public scandal. Along the way, the media served its own interests, not the public interests. The

elected "district attorney" served his interests, not the interests of fair, impartial and objective

enforcement of the laws. The trial court, respectfully we submit, failed to protect the public's and

the Defendant's interests.

In summary, what occurred is this. The evidence suggests, quite strongly, that Kelsey Briggs

was killed as a result of the actions of Michael Porter. Mr. Smothermon has said as much, and

though he charged Mr. Porter with murder, he knew or suspected that the evidence was insufficient

to prove him guilty beyond a reasonable doubt in a fair trial. But, the Briggs family were less

interested in Michael Porter than they were in prosecuting Raye Dawn Smith. But, there was little

evidence to answer by Raye Dawn Smith unless Michael Porter became a State's witness. So,

incredible as it is to believe, the charged murderer of a two-year-old innocent child escaped justice

by false testimony against his wife, the child's mother, and Mr. Smothermon and Ms. High were a

party to this disgraceful, immoral, illegal, unconstitutional and unprofessional travesty. The

evidence was clear that Michael Porter lied about Raye Dawn Smith. He not only contradicted half

a dozen different oral and written statements (both sworn and unsworn), but his testimony was not

supported by any medical evidence and could not be, honestly. So, he bought himself escape from

the possibility of a death sentence, or life without parole, to a sentence that must be modified in the

future, or even if not, would eventually result in his release, assuming a normal life expectancy.

Mr. Smothemon facilitated this because by so doing he escaped the political wrath of Kathie Briggs.

He had to have known that Kathie Briggs would come after him. as she did Judge Key. unless he

went after Raye Dawn Smith. To prosecute Raye Dawn Smith, it was necessary to let Michael Porter

walk away from murder of a child.

As disappointing as these actions were, they do not begin to compare with the lack of

professionalism of the so-called medical witnesses who egregiously and unprofessionally dishonored

themselves by manipulation of the honest medical evidence to support their view of alleged "child

abuse." There was in reality little evidence that Kelsey Briggs had ever been abused until the day

she died. The photographs of the alleged bruises and marks are not those of abuse. The fractures

on her legs are not resulting from abuse nor is the collarbone break.

For Kathie Briggs knew from her own experience and observation that the Department of

Human Services always opens a file and creates an investigation on a "referral." So, when she

appeared in Dr. Andrew Sullivan's office, she immediately prejudiced the medical history of the

child by talking about the mother and her "counseling" in "anger management."3 Dr. Sullivan.

having heard the magical words, decided that the child's injuries were the result of possible abuse

and took the casts off. No primary treater of the child imagined child abuse. And then, to add the

c o ~dpe grace, Dr. Robert Block appears, a man who exaggerates his credentials and ability in trials,

who attacks physicians personally and professionally who testify to contrary opinions, and who even

files complaints against lawyers who have dared to challenge him. Less known is the other Robert

One has to wonder what Dr. Sullivan would have thought had he known the full history of

the emotional upheaval of the Briggs family.

Block. The carping critic, the angry polemist who writes articles for "peer review" which mainly

consist of scathing and unprofessional comments against a host of doctors more experienced. more

qualified and more talented than him.

All of these coming together - a benign court. a politically motivated district attorney. an

available "assistant," a media in a highly competitive environment, and a grandmother who sought

to bring herself to the center of the controversy - all resulted in a failure of due process of law.

We end as we began, an innocent woman was convicted of a terrible crime. We cite here the

authority and the evidence which leads to no other conclusion but that.

On July 18,2007, the jury returned a verdict of guilty on one count of enabling child abuse

against Raye Dawn Smith and recommended a 27-year sentence of imprisonment. On February 24,

2000. more than four months after Kelsey's death, an Information was filed and signed in the name

of the "State of Oklahoma, County of Lincoln" by Richard Smothermon against Raye Dawn Smith

for two felony counts. See Exhibit "3." Defendant contends in this motion and brief that this

Information is void on its face - is a meaningless document, which did not give this Court

jurisdiction over the person of defendant or subject matter jurisdiction of a crime - because it was

not signed by the duly elected and qualified district attorney for District 23. Therefore. those

proceedings were void. Supporting exhibits to this brief show that Richard Smothermon is a legal

resident of Oklahoma County, which is in District 7. He is not a legal resident of District 23, which

encompasses only Lincoln and Pottawatomie Counties. While he purports to have a residence in

Shawnee. supporting documents evidence that this home was purchased long after he was elected

to the office of District Attorney for the Twenty-Third District. See Exhibits "5, 7 and 8."

'Moreover, this house is registered to Connie Pope, not Richard Smothermon. See Exhibit "8."

Richard Smothermon lives in Edmond, Oklahoma, and owns that home, which is in Oklahoma

County. See Exhibit "1 1 ."

Supporting evidence also shows that the Amended Felony Information against Raye Dawn

was not signed by the duly elected and qualified district attorney for District 23 or his legally

constituted assistant. See Exhibits "15, 17-24." Rather, it was signed by Patricia L. High. who is

High was legally barred from serving as an assistant district attorney. Therefore, both of the

charging instruments against Raye Dawn are void are their faces.

Prior to trial, this case received news publicity in epic proportions. Defendant contends that

this toxic and the velocity of the often intrusive, untruthful and sensational content of adverse

publicity had a negative impact on her constitutional right to a fair trial. The State even agrees that

the news media had a negative impact. Richard Smothermon, the attorney that prosecuted this case,

was interviewed following the trial by KOKH FOX 25 in Oklahoma City. See Exhibit "37." In that

interview, Mr. Smothermon said, "that the media became so consumed and so feverish about this

in the print media for two years before Raye Dawn went to trial. According to transcripts of close

captioning of local news provided by Newslink, there were 910 stories reported on Kelsey Smith-

the defense filed its change of venue motion on May 11,2007. See Def.'s Verified Application for

The media frenzy did not stop after the change of venue. According to transcripts of close

captioning of local news provided by Newslink, there were 423 stories reported on Raye Dawn's trial

See Exhibit "37."

Raye Dawn's jury was not sequestered overnight during the trial and not kept together during

regular recesses and was observed by numerous witnesses mingling and interacting outside the

interviews with members of the Briggs family and other trial witnesses were conducted in front of

looking for sound bytes and would interview members of the Briggs family right in front of where

particular restaurant in Bristow, Russ' Ribs, that was extremely small, and witnesses contend that

members of the news media sat at one large table while jurors sat at surrounding tables. See Id.

Two witnesses report seeing a male juror sitting at a table right next to the Briggs family in

of the Briggs family deliberately planted themselves as near members of the jury as possible so their

prejudicial comments could and would be overheard by the jury.

reporters chasing or running after people in and out of the courthouse each day in an effort to obtain

Pictures and video from security cameras inside the courthouse were reportedly leaked to the press.

See Id. Raye Dawn, who was escorted inside the courthouse each day by sheriffs deputies because

of reported threats from the Briggs family, was asked on video inflammatory questions by the news

media - questions that implied she was guilty - while jurors looked on next to the vending and snack

machines on the east end of the building. See Id. Every major television station in Oklahoma along

with numerous newspaper reporters were present for the trial. See Id. The coverage was deliberately

designed to be a circulation and audience builder and to increase the viewing audience in the highly

competitive Oklahoma City and Tulsa media markets.

Further, defendant contends that the trial transcript will show that the jury was admonished

by this Court several times to keep their eyelids open. Attached to this brief are affidavits from two

witnesses who observed jurors sleeping intermittently throughout this trial and one juror who "sat

slouched in her seat" wearing "a NASCAR fleece blanket draped over her body from head to toe."

,See Exhibit "38." One witness has said the "jurors appeared to be watching the trial as if they were

seated in their own living rooms." See Id.

The State presented testimony in its case-in-chief from two medical witnesses, Andrew

Sullivan, M.D., and Robert Block, M.D. Defendant contends that both of these physicians overstated

and manipulated the medical evidence in a shameful and unprofessional manner to comport with a

story of child abuse. They were not neutral and objective medical professionals. but partisan zealots

of "child abuse" prosecution when neither the facts or medical research substantiated their opinions.

Attached to this brief is an affidavit from a board certified radiologist who has worked and trained

in the field of pediatric radiology for 15 years who has reviewed the X-rays of the child's right and

left tibia1 shafts. See Exhibit "52."' Dr. Keller asserts that this child did not suffer spiral fractures,

but rather "bilateral oblique fractures," which "are more commonly referred to as 'toddler's

are usually associated with falls from swings, slides, trees, etc." See Id. She further contends that

these. fractures "have a low specificity [for child abuse] because of their common occurrence in

accidental injury." See Id.

The evidence will also show that Richard Smothermon knowingly solicited false testimony

by putting Michael Porter on the witness stand. Mr. Smothermon stated in open court that he

that he believed Porter had "committed the sexual abuse." See Partial Trial Tr. at 245. Porter

testified that Raye Dawn was "responsible" for Kelsey's death. See Id. at 252. Porter further

testified that he was only "indirectly" responsible for what happened to Kelsey. See Id. Mr.

Smothermon again stated on the record that he disagreed with Porter. See Id. At Pages 253-259,

Smothermon allowed Porter to testify more or less in a narrative manner to a series of events on

science. See Id. at 253-259.

complete trial transcript from the court reporter and only having received a partial transcript at this

The original, signed and notarized affidavit from Dr. Keller is in the mail and will be filed

by defense counsel with the Court immediately upon receipt.

time, Defendant relies on the KOKH FOX 25 Transcript and asserts that the official trial transcript

will bear out the following. However, Defendant does cite to those portions of the official trial

transcript she was able to obtain.

OKLA. STAT. tit. 22, 5 952 provides as follows:

A court in which a trial has been had upon an issue of fact has power to grant a new

trial when a verdict has been rendered against a defendant by which his substantial

rights have been prejudiced, upon his application in the following cases only:

First. When the trial has been in his absence, if the charge is for a felony.

Second. When the jury have received any evidence out of court, other than that

resulting from a view of the premises.

Third. When the jury have separated without leave of the court, after retiring to

deliberate on their verdict. and before delivering or sealing the same, if it be sealed,

or have been guilty of any misconduct by which a fair and due consideration of the

case has been prevented.

Fourth. When the verdict has been decided by lot, or by any means other than a fair

expression of opinion on the part of the jury.

Fifth. When the court has misdirected the jury in a matter of law, or has erred in the

decision of any question of law arising during the course of the trial.

Sixth. When the verdict is contrary to law or evidence.

Seventh. When new evidence is discovered. material to the defendant, and which he

could not with reasonable diligence have discovered before the trial, or when it can

be shown that the grand jury was not drawn, summoned or impaneled as provided by

law, and that the facts in relation thereto were unknown to the defendant or his

attorney until after the trial jury in the case was sworn and were not of record. When

a motion for a new trial is made on the ground of newly discovered evidence, the

defendant must produce at the hearing in support thereof affidavits of witnesses. or

he may take testimony in support thereof as provided in Section 5781, and if time is

required by the defendant to procure such affidavits or testimony. the court may

postpone the hearing of the motion for such length of time as under all the

circumstances of the case may seem reasonable. The application for a new trial on

the ground that the grand jury was not drawn. summoned or impaneled as provided

by law may be shown in like manner.

Each of the grounds for a new trial asserted by Raye Dawn Smith could support a reversal of the

conviction and/or sentence on appeal. In connection with her claims, Raye Dawn requests an

evidentiary hearing and sufficient time to prepare for such hearing. In the instant case, there is not

a thin allegation of jury misconduct, there is instead a clear indication that one male juror disregarded

the Court's instructions and watched a local news station's broadcast of details of the trial during the

lunch break one day of the trial in front of several witnesses at a burger restaurant in Bristow.

Moreover, it is clear that numerous members of the jury congregated with members of the Briggs

family and the news media and were present when members of the Briggs family and other trial

witnesses were interviewed by the news media about the case. Witnesses also observed a fair share

of jurors sleeping intermittently throughout the trial with one juror, in fact, curled up in a fleece

blanket. It is also necessary to conduct an evidentiary hearing to determine whether pre-trial

publicity so tainted the jury pool that Ms. Smith was denied a fair trial. Counsel wishes to present

testimony from expert witnesses who have conducted empirical research concerning pre-trial

publicity and its effects upon potential jurors. In addition, Ms. Smith intends to call several

witnesses specialized in the medical field, including a board certified 15-year pediatric radiologist

to testify that the "so-called spiral leg fractures" that Dr. Sullivan and Dr. Block claimed could only

he caused by abuse are, in fact, oblique and not spiral and they are common toddler fractures that are

usually associated with falls from swings, slides, etc., and are not indicative of abuse. Raye Dawn

Smith did not abuse her daughter, Kelsey, and the medical evidence that was presented at trial did

not support abuse by the Defendant.

The evidence will also show that neither the Information or Amended Felony Information

in this case was filed by either a duly qualified and elected district attorney or his duly qualified and

appointed assistant, and that Richard Smothermon and Patricia High are offending the State of

Oklahoma. Moreover. the evidence will show that Ms. High engaged in highly improper conduct

jury. Mr. Smothermon also exercised unethical conduct when he knowingly solicited false testimony

by calling Michael Porter to the stand to testify, and then gave his personal opinion concerning Mr.

Porter's guilt of mind. Finally, this brief supports and an evidentiary hearing will show that Richard

Smothermon, the purported district attorney for Lincoln and Pottawatornie Counties, allowed Kelsey

that murdered and sexually assaulted Kelsey. Raye Dawn Smith is innocent.

Under the Oklahoma Constitution and Statutes, the prosecution of a criminal case must be

brought in the name of the State of Oklahoma and must be signed by the duly qualified and elected

of the Information reads in part as follows:

State of Oklahoma. County of Lincoln: I. RICHARD L. SMOTHERMON, the

undersigned District Attorney of said County, in the name and by the authority, and

on behalf of the State of Oklahoma, give information that in said County of Lincoln

willfully, knowingly and wrongfully commit the crime(s) of:

Information is void on its face: it is a false document. Mr. Smothermon may have very - well taken

Oklahoma County. which is District 7. He is not the qualified district attorney. David Prater is the

23, which encompasses only Lincoln and Pottawatomie Counties. As evidenced below, Mr.

Smothermon has never purchased a residence nor is he a resident in the Twenty-Third District. His

1 District 23. Incidentally, her purchase of the building was also before she and Mr. Smothermon were

Pursuant to OKLA. STAT. tit. 19, $215.2(B), to qualify as a candidate for the office of district

attorney a person must have been a resident of the State of Oklahoma for two (2) years, the district

years of age, prior to the date of filing for office. Richard Smothermon was elected to serve District

Smothermon was not a resident of District 23 when he filed his Declaration of Candidacy.

Counties. See Exhibit "5," "Smothermon's 2002 Declaration of Candidacy." Mr. Smothermon

listed his mailing address as P.O. Box 415, Chandler, Oklahoma. See Id. This mailing address is

in Lincoln County, but this address did not represent Smothermon's place of residence at the time

but rather was his law office. See Id. Mr. Smothermon was not a qualified candidate for the office

Candidacy, Mr. Smothermon solemnly affirmed that the facts in the document were "true and

correct5 and that [he was] fully qualified to become a candidate for the office." See Id.

In 2006, Mr. Smothermon listed 1528 N. Park in Shawnee, Oklahoma. as his place of

"Smothermon's 2006 Declaration of Candidacy." This building is located in Pottawatomie County,

which is in District 23.

Mr. Smothermon lists this Shawnee address on his Statements of Organization which he filed

"Smothermon's SO-1s." Curiously, Mr. Smothermon did not file his SO-1 for his 2002 campaign

in either Pottawatomie or Lincoln Counties when he filed for office in 2002. The Warranty Deed

discloses that the house in Shawnee located at 1528 N. Park was purchased by Connie Pope on

Recently the Oklahoma Multi-county Grand Jury indicted three individuals for engaging in

Misrepresenting one's residency can be charged as a criminal offense. While one can understand

the personal and political convenience. it is troubling that Mr. Smothermon apparently disregards

the law and misrepresents his own residence and winks at those requirements.

18

License." A current Property Assessment Information document shows that this Shawnee residence

is still registered to Connie Pope. See Exhibit "10," "Property Assessment Information." Mr.

Smothermon bought a home in Edmond, Oklahoma, on June 29,1998, at 504 Gray Fox Road. See

Exhibit "1 1," "Warranty Deed on Edmond House." Pictures of this house are attached as Exhibit

seldom moves, but strangely, its license plates change. See Exhibit "13." The identity of the owner

of the changing plates are blocked when one runs a search; therefore, there is no way to determine

Smothermon generally drives a 2003 Altima car to and from Edmond and Shawnee. He parks the

Richard Smothermon in Edmond. While the utilities, i.e., gas, water, and electric, are registered in

Richard Smothermon's name for the building in Shawnee, the low cost of same reflect that it is

highly unlikely that anyone, let alone Mr. Smothermon, is living there. There are seldom any lights

on inside the home at any hour of the night or day. And, no other cars aside from the black pick-up

that almost never moves are ever parked at the home. It appears that Mr. Smothermon uses this

Shawnee building solely as a "mail drop" or an accommodation address. Mr. and Mrs. Smothermon

do not live apart in two separate counties, he in Shawnee and she in Edmond. Rather, they both live

in the Edmond residence. He is a bona fide resident of Oklahoma County. A search of the garbage

at the curb also evidences that no one is living there. i.e., the garbage left at the curb did not contain

necessary household items you would normally see if someone was, in fact. living there.

OKLA. STAT. tit. 22, 3 303(A) requires the district attorney to subscribe his name to

Information filed in the district court and endorse thereon the names and last-known addresses of

all the witnesses known to the district attorney at the time of filing. Therefore, it is essential to the

validity of an Information charging a crime that it be signed by a duly qualified and elected district

and discussion iizfra pp. 29-34. The Information in Raye Dawn's case was not. See Exhibit "3."

There are only two charging instruments that may initiate a prosecution in Oklahoma - an

Indictment and an Information. See OKLA. CONST. art. IT. § 17 ("No person shall be prosecuted

criminally in courts of record for felony or misdemeanor otherwise than by presentment or

indictment or by information."); see also OKLA. STAT. tit. 22, $5 381 -440; Webber v. State. 1925 OK

736, 239 P. 566, 567 (No original prosecution can be instituted in a court of record in Oklahoma,

except by presentment of Indictment by a grand jury, or by an Information exhibited by the county

attorney, or some other officer thereto authorized by law); Berg v. State, 28 0kl.Cr. 28 1,230 P. 296

Raye Dawn Smith was charged by Felony Information on February 24,2006, more than four

months after Kelsey Smith Briggs passed away and four months after Michael Porter was charged

with her murder. See Exhibit "3," "Information" and Exhibit "14," "Porter's Information." Richard

Smothermon signed his name to the Information purporting to be the District Attorney for Lincoln

County. See Id. Contrary to Sections 303(A) and 409(2) of Title 22 of the Oklahoma Statutes. the

Information in Raye Dawn Smith's case was not presented and signed by the duly qualified and

elected district attorney of District 23 or his duly qualified and appointed assistant. See OKLA. STAT.

tit. 22, 5 303(A), which provides in part:

The district attorney shall subscribe the district attorney's name to informations filed

in the district court and endorse thereon the names and last-known addresses of all

the witnesses known to the district attorney at the time of filing the same, if intended

to be called by the district attorney at a preliminary examination or at trial.

See also OKLA. STAT. tit. 22, 9 409(2) ("The indictment or information is sufficient if it can be

understood therefrom: That it was found by a grand jury or presented by the district attorney of the

county in which the court was held."). Rather, it was signed by a licensed attorney who resides in

Oklahoma County, which is District 7. Nothing under Oklahoma law gives Richard Smothermon

the exception to reside in District 7, but hold the office of district attorney for District 23. In fact,

the law directly prohibits such action. It appears that Richard Smothermon may never have resided

in District 23 at any time since the November 2002 election. He was not a legal resident of District

23 when he ran for office and was elected the first time in 2002, and he was not a legal resident of

District 23 when ran for office and was elected a second time in 2006. Moreover, he was not a legal

resident of District 23 when he investigated, formally charged, and prosecuted Raye Dawn Smith.

'To this day, Richard Smothermon is still not a legal resident of District 23.

It is clear that in Oklahoma the Information must be signed by a duly qualified and elected

district attorney, and if it is not it is void and should he set aside because the Court had no

jurisdiction to prosecute. See e.g., Whittemore v. State, 26 0kl.Cr. 338,223 P. 890 (1924) (Pursuant

to the Oklahoma Constitution, Article 11, 3 17, a prosecution in the county court for the unlawful

manufacture of whisky without indictment or information, but on complaint not signed nor sworn

to by the county attorney, is unauthorized); Edwards v. State, 1957 OK CR 21, 307 P.2d 872, 877

(Where prosecution is for misdemeanor in municipal criminal court, a court of record, prosecutions

must be instituted by the municipal or city attorney in conformity to requirements of Code of

Criminal Procedure relating to county court trials with city attorney subscribing his name to the

information or his name must be subscribed thereto by an assistant, or the information is void and

confers no jurisdiction upon the court to try the accused): Ex Parte Long, 26 0kl.Cr. 259,223 P. 710,

71 1 (1924) (Where an accusation purporting to be an information filed in the county court was not

signed by the county attorney, and his name was not signed by a duly appointed and qualified

assistant, the information is void and the county court did not acquire jurisdiction of the person

therein named as the defendant): Buis v. State, 1990 OK CR 28, 792 P.2d 427, 430-31 (failure to

verify signature of arresting officer on uniform violations complaint precluded the district court from

238, 133 P. 260. 262 (Court acquired no jurisdiction to try the case and conviction and sentence of

defendant void where the duly qualified and elected district attorney's name was not subscribed to

the Information himself nor was his legally constituted assistant's signature). See also discussion

infra pp. 29-34.

The Court in Lincoln County never had jurisdiction to try the case against Raye Dawn Smith

because neither the Information or Amended Felony Information were signed by a duly qualified and

elected district attorney of District 23 or his legally constituted assistant. Therefore, the Court did

not have the jurisdiction and power to move the case to Creek County, Bristow Division on a change

of venue motion. The Information issued against Raye Dawn Smith is void and her conviction and

sentence are also. The Office of District Attorney of District 23 should be declared vacant and a duly

qualified individual appointed as district attorney.

Patricia L. High was an active participant in the prosecution against Raye Dawn Smith.

"Amended Felony Information." Touted by the news media as a "private practice lawyer" and "hired

prosecutor,''6 Ms. High was hardly a backseat driver at trial but rather an integral part of the

Kathie Briggs posted a message on her Web site that Smothermon "hired a top notch

prosecutor to help him in Kelsey's case. Her name is Patricia (Patti) High (sic). She has worked on

23

the trial herself. She conducted voir dire. She took an active role in questioning and cross-examining

(Exhibit "1"). Under Oklahoma law, however. Ms. High never should have been involved in the

investigation or prosecution against Rave Dawn Smith. Moreover, she had no authority under the law

to sign the Amended Felony Information.

The laws authorizing the appointment of special prosecutors in Oklahoma were declared

was appointed as special prosecutor in a criminal case in Garfield County by Earl E. Goerke, the duly

reasons for the appointment, including a heavy case load, reduced number of assistants, the

appointment and the failure of the State to follow existing statutory authority to obtain assistance if

filed a written motion with the district court to disqualify the special prosecutor claiming the

many child abuse/murder cases and has the reputation for being tough. She has already brought new

Constitution and Oklahoma Statutes do not permit such appointment. See Id. This motion was also

overruled. See Id. at 159. Apparently, the defense also asserted to some degree that Mr. Jones

appeared or was appearing as a special assistant district attorney, although there were no facts in the

all times been acting as a special prosecutor not as an assistant district attorney, i.e., he was appointed

by the district court for the special and limited purpose of assisting in the prosecution against

Petitioner Driskell. See Id. The Court held that the "mere changing of the name from Special

Prosecutor to Assistant District Attorney, relying on the temporary increased work-load brought about

the State of Oklahoma do not permit the appointment of a Special Prosecutor by the District Court

to assist the District Attorney." See Id. at 160.

Richard Smothermon, who purports to be the duly qualified and elected district attorney for

Richard Smothermon in the prosecution of former Creek County Judge Donald Thompson who was

convicted of four counts of indecent exposure for exposing himself and using a sexual device while

presiding over court cases. See Exhibit "18." In fact, Ms. High delivered the closing argument for

the State in that case. See Id. Ms. High is currently assisting Mr. Smothermon in the prosecution

against Gary K. Jay in Pottawatomie County. See Exhibit "19," "Shawnee News-Star Article." Mr.

Jay is a former Shawnee attorney who was arrested and charged in January with lewd molestation and

Because Mr. Jay had practiced law in Shawnee for many years, local judges recused themselves from

involving child abuse and domestic violence.

The State of Oklahoma District Attorney's Council insists that Ms. High has been in

continuous service in the district attorney system since 1988 and was essentially "transferred" from

Oklahoma County to the Pottawatomie County District Attorney's Office on January 2, 2007. See

Exhibit "20." The Council further asserts that as late as August 22, 2007, Ms. High was still

it "was unnecessary for Mr. Smothermon to seek her appointment as a Special Assistant District

statute is problematic for several reasons.

First, the documents obtained by the undersigned counsel through an Open Records Request

to the Pottawatomie and Lincoln Counties District Attorney's Office do not support that this was a

transfer from another district office. In fact, the personnel action papers relating to Ms. High show

checkmarks next to "permanent appointments," and do not exhibit checkmarks next to "transfer

District Attorney." It appears from these documents that Ms. High worked an average of 83.79 hours

a month for the Pottawatomie County District Attorney's Office from January 2007 through August

2007, and was being paid an average net monthly salary of $2,302.46 by the State of Oklahoma.

What is not evidenced in these documents is what cases Ms. High was assigned, i.e., whether her

assignment was solely limited to the prosecution of Raye Dawn Smith. Defendant believes she was

hired for that limited purpose contrary to the laws of Oklahoma which prohibit the appointment of

26

special prosecutors, as evidenced above.

If one were to assume for argument's sake that Ms. High was a duly authorized part-time

assistant district attorney for the Pottawatomie County District Attorney's Office, there is still one

problem that cannot be explained away no matter how it is dressed up. And that is, under

criminal defense lawyer.

The State contends she is a part-time assistant district attorney. Yet, on March 26,2007 and

August 2, 2007, Ms. High filed entries of appearance in two separate criminal cases in Oklahoma

County on behalf of the criminal defendants in those cases. See Oklahoma County Case Nos. CF-

2007-840 and CF-2007-4046 and Exhibit "22." Both of these cases are pending, and Ms. High

entered her appearance at a time the State District Attorney's Council and Mr. Smothermon asserts

she was employed as a part-time assistant district attorney in Lincoln and Pottawatonie Counties.

She entered her appearances at a time when she was assisting in the prosecution against Raye Dawn

Smith.

A member of the bar who is a part-time district attorney may not be appointed

to defend persons within or outside the jurisdiction in which he serves as assistant

its criminal laws. His first and foremost duty is to represent the State in criminal

proceedings and, he cannot represent a defendant where the State of Oklahoma

is the opposing party. One cannot adequately serve two masters; these positions

are inherently antagonistic and irreconcilable.

which he is elected. He is also an officer of the state, in the general matter of the

enforcement of the criminal law. It is the state. and not the county that pays his salary

and official expenses.

attorney the right to request assistance from assistant district attorneys from other districts. it does

not give the district attorney the right to consult any private attorneys interested in the trial of a

entire people of the State, and it is his duty to be impartial in the discharge of his functions, and not

CR 75,114 P. 343 (where counsel privately employed to prosecute a case appear before a grand jury

and assume to represent the state upon the investigation of a case then pending before said grand jury,

an indictment found by said grand jury as the result of such investigation should upon motion of the

defendant be set aside).

"Our Constitution by express provision protects the citizens of this state against private

provides that, "All prosecution shall be carried on in the name and by the authority of the state of

Ms. High has a thriving private law practice as evidenced by the docket sheets attached to this

brief. See Exhibit "23." Her practice is not limited to criminal defense, but rather she has entered

appearances in civil cases. probate cases and domestic disputes both in Oklahoma and Cleveland

Oklahoma City are attached as Exhibit "24." She is being paid by the State of Oklahoma to prosecute

individuals accused of crimes in Pottawatomie and Lincoln Counties, while at the same time

operating a private law practice on the side and defending persons charged with crimes in Oklahoma

County.

In Hartgraves v. State, the defendant filed a motion to set aside the Indictment asserting that

the prosecution employed a private attorney who presented the case to the grand jury, conducted the

examination of the witnesses before the grand jury, and insisted that the grand jury should return an

Indictment. See Hartgraves, 114 P. at 343. In finding for the defendant and setting aside the

Indictment, the Court of Criminal Appeals stated in pertinent part:

We believe that it is the plain meaning of the laws and Constitution of

Oklahoma that regularly elected or appointed officers shall conduct all criminal

prosecutions.

See Hartgraves, 114 P. at 346.

Ms. High is not a regularly appointed officer authorized to conduct criminal prosecutions.

Contrary to the law, Ms. High serves two masters. She cannot be both a part-time assistant district

attorney paid by the State of Oklahoma and a private criminal defense attorney. She must choose.

Pursuant to OKLA. STAT. tit. 22, 303(A), it is essential to the validity of an Information charging

a crime that a duly qualified and elected district attorney subscribe his name thereto or that his name

be signed by a duly appointed and qualified assistant district attorney. See OKLA. STAT. tit. 22,

.303(A). On March 16,2007, Ms. High signed the Amended Felony Information against Raye Dawn

Smith. See Exhibit "15." Ten days later High is entering her appearance on behalf of a criminal