On October 11, 1991, the District Attorney, subsequent to the preliminary hearing but prior to trial, issued notices to take the depositions or statements of the Defendants' listed witnesses and subpoenaed them to the District Attorney's office; that the witnesses were not infirm, ill, or about to leave the State; that they were witnesses listed by the Defendants pursuant to an order issued by the District Court under the mandates of Allen v. District Court of Washington County, 803 P.2d 54 [1164] (Okl.Cr. 1991 [1990]). All were listed on Defendants' witness list as testifying to the facts surrounding the incident out of which the charge arose. All were given addresses of Rural Route 3, Woodward, Oklahoma, or Route 1, Sharon, Oklahoma, except one witness, Doug Bombrook, whose [831 P.2d 1002] address was unknown to the Defendants but who would provide an alibi for Defendant Roy Leon Morgan. All, with the exception of Mr. Bombrook, were either the parents, grandparents or other direct relatives of the Defendant. None appeared before the District Attorney, except the alibi witness, who apparently gave his statement to the District Attorney in his office. None of the other witnesses showed up at the District Attorney's office.

Petitioners contend that in the notice to Defendants' witnesses, the State makes an inaccurate and false statement that the District Court had made a finding that Defendants' attorney had not complied with a discovery order, and therefore the trial was continued and additional discovery materials to be furnished. Petitioners contend that no such order existed by the Court but that the prosecutor had contacted Petitioners' attorney and asked for further information, of which none could be provided, whereupon the prosecuting attorney advised that he would seek a continuance to further investigate the matter. A continuance was obtained. Petitioners further contend that when none of the witnesses appeared pursuant to the notice and subpoena, that the District Attorney met with the District Judge on an ex parte basis, filed a motion on October 18, 1991, and obtained an ex parte order on the same date without any hearing or any notice to the Defendants.

1. Petitioners were charged April 1, 1991, with two felony counts of Child Abuse. An amended information was filed April 23, 1991, charging Petitioners with two counts of Child Abuse and one count of Murder in the First Degree.

2. Petitioners were bound over for trial on June 13, 1991, on one count of Child Abuse and one count of Murder in the First Degree. Mr. Michael Gassaway, attorney for Petitioners, proposed and entered into an oral agreement on June 13, 1991, with the special prosecutor that if either attorney desired, he could take the sworn statement or deposition of any witness for the State or Petitioners.

3. On July 15, 1991, both attorneys in open Court entered into a stipulation which provided for reciprocal discovery. This is supported by a partial transcript of the proceedings attached as Exhibit "A" to the District Attorney's response and by the order entered by the District Court and signed by both attorneys attached as Exhibit "B".

4. On September 16, 1991, additional motions of Petitioners were scheduled to be argued; that Mr. Gassaway failed to appear in person, but that the State did announce by way of agreement that the remaining motions of Petitioners should be overruled; and that the District Court concurred in the agreement of the parties and confirmed said announcement by contacting the office of Mr. Gassaway. Further, that the District Court was advised that although the State had complied with the District Court's discovery order, that Petitioners had not furnished any material to the State. The District Court informed Mr. Gassaway's office that the trial was set to begin October 14, 1991, and that the Petitioners had not furnished any discovery materials; that September 27, 1991, was set as a deadline for the Petitioners to provide the materials, or appear September 30, 1991, to explain their reasons for failure to comply with said deadline and order. This is supported by an order entered by [831 P.2d 1003] the District Court on September 16, 1991, and attached as Exhibit "C" to the District Attorney's response.

5. The Petitioners did not provide the State any materials by the deadline of September 27, 1991, and Mr. Gassaway did not appear or even call on September 30, 1991, to explain reasons for his failure to comply with the deadline. That the special prosecutor contacted Mr. Gassaway by telephone and Mr. Gassaway told the special prosecutor that he would deliver all the materials to the special prosecutor on October 2, 1991, after both attorneys concluded an unrelated preliminary hearing held in Harper County. That the special prosecutor informed the Honorable Ray Dean Linder what Mr. Gassaway had stated and that Judge Linder requested that if the materials were not delivered as agreed, that both attorneys together should call him from the Harper County Courthouse.

6. That the Petitioners' witness list was filed in the Woodward County Court Clerk's office on October 1, 1991. A copy is attached to the District Attorney's response as Exhibit "D".

That after the unrelated preliminary hearing was concluded on October 2, 1991, at the Harper County Courthouse, the special prosecutor asked Mr. Gassaway for the materials and that Mr. Gassaway informed the special prosecutor that he had laid all the material out but had ran off without them. That Mr. Gassaway would not remain at the Harper County Courthouse long enough to call Judge Linder, but that he said he would contact the special prosecutor the next day, October 3, 1991. That Mr. Gassaway never contacted the special prosecutor on October 3, 1991.

7. That on October 4, 1991, Judge Linder was informed that Mr. Gassaway did not deliver the materials and that Judge Linder called Mr. Gassaway's office and left word for Mr. Gassaway to return his call. A copy of the phone bill reflecting Judge Linder's call to Mr. Gassaway is attached to the District Attorney's response as Exhibit "E". That Mr. Gassaway returned Judge Linder's call later in the day and told Judge Linder that he had no idea what the special prosecutor was talking about, that he had fully complied with the discovery order. That Judge Linder immediately contacted the special prosecutor and requested that he come to his office to speak with Mr. Gassaway.

8. That on the telephone, Mr. Gassaway stated to the special prosecutor that he had told the special prosecutor that he would mail the materials, and that he in fact had mailed the materials. The special prosecutor requested that Mr. Gassaway fax him another copy of what he had mailed. That about an hour later, the special prosecutor received by fax a copy of the witness list previously filed, but with some hand written scribbles added. A copy of this is attached to the District Attorney's response as Exhibit "F".

9. With the trial scheduled to begin on October 14, 1991, the special prosecutor filed a motion October 4, 1991, requesting sanctions for the Petitioners' noncompliance of the District Court's discovery order. A hearing date was set for October 9, 1991, at 11:00 a.m. A copy was sent by fax immediately to Mr. Gassaway's office and also by mail. A copy of the motion is attached to the District Attorney's response as Exhibit "G" and a copy of the Order for Hearing filed October 4, 1991, is attached as Exhibit "H".

10. That on October 7, 1991, Mr. Gassaway contacted the special prosecutor and asked why the motion for sanctions was filed and was told that the special prosecutor needed all the information and discovery materials as ordered by the District Court to properly prepare for trial. That Mr. Gassaway stated he did not know anymore about the witnesses than he had already provided and any further information had to be obtained through his clients' family. The special prosecutor reminded Mr. Gassaway about the previous agreement on taking sworn statements or depositions [831 P.2d 1004] and Mr. Gassaway stated he would sure stick to that agreement.

That on September 19, 1991, Mr. Gassaway had the Woodward County Court Clerk issue 50 blank subpoenas. This is supported by a copy of the Woodward County Court Records attached as Exhibit "I" to the District Attorney's response.

11. On October 9, 1991, Mr. Gassaway's office called the Court Clerk's office in Woodward and told them he could not be in Woodward for the motion hearing and did not have any objection to continuing it (meaning, according to the Clerk, the trial date). A copy of the note is attached to the District Attorney's response as Exhibit "J".

12. On October 9, 1991, Mr. Gassaway appeared on behalf of Petitioners at the hearing via telephonic communication. The District Court found that Mr. Gassaway had not complied with the discovery order and continued the trial to December 2, 1991, at 9:00 a.m., without objection, and that additional discovery materials were to be furnished by Mr. Gassaway. This is supported by a copy of the District Court's order attached to the District Attorney's response as Exhibit "K" and a copy of the partial transcript of the hearing attached as Exhibit "L".

13. That on October 11, 1991, based on the previous agreement between the special prosecutor and Mr. Gassaway, the process was started to obtain statements and information from family members of the Petitioners and an alibi witness by the name of "Doug Bembrook". That Mr. Gassaway had not provided the content of the alibi and also stated, that the address was unknown. The special prosecutor could not locate a "Doug Bembrook" but personally knew a resident of Woodward by the name of "Doug Benbrook". A copy of the documents the special prosecutor served on the witness and mailed to Mr. Gassaway is attached as Exhibit "M" to the special prosecutor's response.

14. On October 17, 1991, none of the witnesses appeared to give statements except Mr. Doug Benbrook. Mr. Benbrook was very cooperative. He stated that family members of the Petitioners had contacted him and told him that Mr. Gassaway said no one needed to appear to give a statement or information. Mr. Benbrook did make a statement concerning information about the case but it did not consist of what the special prosecutor considers an alibi as previously indicated by Mr. Gassaway.

15. That the special prosecutor called Mr. Gassaway to inquire why he told the witnesses not to appear. Mr. Gassaway stated they did not have to appear. When further inquiry was made about the discovery materials and information that Mr. Gassaway was to furnish by his agreement and order of the District Court, Mr. Gassaway stated basically that he had already complied and was not going to furnish anything else at all. That Mr. Gassaway further stated that the special prosecutor could go to trial with what he has furnished, or exclude Petitioners' witnesses from testifying. The special prosecutor told Mr. Gassaway that in his opinion, if the Petitioners' witnesses were excluded, any conviction and especially one involving the death penalty would be reversed on appeal. Mr. Gassaway responded that he was certain it would be reversed if Petitioners' witnesses were excluded and that was his insurance. Mr. Gassaway further indicated that the special prosecutor could get any additional order from Judge Linder, but that he was not going to comply or give any other information.

16. On October 18, 1991, the special prosecutor presented a written motion to Judge Linder and obtained an order from Judge Linder as a means to enforce the District Court's July 15, 1991, discovery order and Mr. Gassaway's agreement. A copy of the motion and the order are attached to the District Attorney's response as Exhibits "N" and "O".