Alaskablawg

Appendicitis

I'm blogging this from my hospital room where I have been since Saturday night. I developed appendicitis late last week and had emergency surgery Saturday night. Surgery went well, although recovery is a bit slower than usual because a) it was not done laproscopically for some very good reasons, and b) docs are watching to make sure that it had not leaked before removal. Won't bore you with all of the details, but I will say that morphine is truly wonderful. The ability to end such pain makes a difference in the quality of life that cannot really be described.

On another note, an occurrence like this is a much bigger deal when you're on your own than if you are in a group or firm. From a business perspective, this will definitely lower income and having to change a previously set court calendar while lying in a drug-induced haze in a hospital bed is not fun.

I will say that so far, judges, opposing counsel and clients have been understanding and sympathetic. The lawyers with whom I share space have also been kind enough to help me re-arrange my schedule. And my secretary's assistance has been invaluable. Thank you so much for your support. In the meantime, I am doing what I can to improve and be back as quickly as possible.

How To Be Excused From Your Trial

Interesting decision from the Court of Appeals today. A defendant was so rude and obnoxious that the court ordered that he not be present during the trial, even if he wishes to testify. The Court of Appeals upholds this decision. Now, I'm a fairly pro-individual rights kind of person, and I think that as a rule, you should be allowed to attend your own trial. In this case, though, I think the trial court made the right decision. It is a long decision (65 pages) in part because of the numerous excerpts from the record. The COA, recognizing this is an extreme step, quotes so much from the record to show just exactly what one has to do to be ordered out of the courtroom for your own trial. Some of the things he says to the prosecutor are just beyond belief.

Part of the issue is that this defendant was charged with a sex assault. He was tried and convicted for that crime. This appeal stems from witness tampering charges from when he called her trying to get her to change her story on the sex assault charges. Before his sex assault trial, in a jury-out hearing, his lawyer on the previous case tells the court that her client wants to ask a question. That's always a bad sign, when the lawyer won't ask the question but instead lets the client ask it.

So, this guy looks at the judge and says, "I hear that some judge down here is fucking [the complaining witness] and writing her love poetry and shit. I can't get a fair trial if the judge is fucking her. So I got to ask, are you fucking [the complaining witness]?"*

The judge, who used to be the head of the criminal division of the Dept of Law and is a well-respected judge throughout the state, calmly leans forward and says, "Mr. Douglas, I don't write love poetry."

In the sex assault trial, a treating doctor testified that the complaining witness had marks that appeared to be cigarette burns near her ano-genital area. Upon hearing this testimony, the defendant yells out, "That's bullshit! She's got herpes!" **

If you are facing criminal charges and you are frustrated with your attorney, the prosecutor, the court, or whatever, I would strongly urge that you read this decision and realize that this is a great demonstration of how to NOT demonstrate your frustration. It is my opinion, and I could be wrong here, but its my opinion that outbursts and language such as the defendant used might not help create a lot of sympathy with either the court or the jury. Just a little suggestion.

*I heard this story from three different sources and that quote is pretty much verbatim from all three of them.

** Again, this story and this quote were confirmed by all three sources.

Post Acquittal Crime?

There's an interesting story developing in Anchorage these days. A local nurse, Mindy Schloss, disappeared in early August. The news has been filled with stories about all of the search efforts to locate her. In the past couple of days, though, the police have publicly stated that they are looking for a 'person of interest': Joshua Wade.

In 2003, Joshua Wade was acquitted of murder charges in a very high profile trial. Between 1999 and 2001, there were a number of violent rapes against Alaska Native women. Many felt that police were not doing what they could to solve the crimes because of the victims' race. In the midst of this, police found the body of a murdered woman who was also sexually assaulted. Several people told cops that Joshua Wade had bragged about killing her. It seemed from all public information that a conviction was a sure thing.

There were a couple of problems, though. For one, none of the DNA on this woman's body matched Mr. Wade. Secondly, fingerprints at the scene did not match Mr. Wade. Actually, the cops did not even test the fingerprints until the middle of the trial. The modus operandi matched the man ultimately convicted of the multiple rapes. It appeared that M. Wade did tamper with some evidence at the scene. His attorneys argued that he came upon her body after the sex assault and murder. Mr. Wade was acquitted.

Now, though, the cops want to talk to him about the missing nurse. This makes for some interesting water cooler discussion in Alaska. The mother of the previous victim has stated that this would not have happened if the jury had done its job and convicted Mr. Wade the first time. The not so subtle subtext to the news reports is that Mr. Wade was obviously guilty the first time. He just had some really good lawyers. An even subtler subtext is that perhaps those attorneys should be embarrassed or ashamed. That if maybe they had not defended Mr. Wade so hard, this nurse would now be alive.

Bullshit. First, as briefly noted above, there was plenty of reason to believe that Mr. Wade did not commit the murder for which he was previously charged. Secondly. there is no realistic way to predict the future. We have no way to know who might commit a crime in the future. Imagine the closing arguments in that trial:

Prosecutor: Well, the DNA evidence might not match. The fingerprints might not match. And all of the State's witnesses are dirtbags who have very good motives to tell the cops what they want to hear. But if you let Mr. Wade go, who knows what he might do?

To put it like that shows how ridiculous all of this is. Anybody in this business has a case in which a client whose case was successfully resolved has gone on to commit further crimes. But anybody in this business also has cases in which clients whose cases were resolved successfully went on to improve their lives and do good things. Some people take advantage of the breaks life throws them and some people don't. As a defense attorney, my job is to zealously defend my client on the charges that he is then facing. If the prosecution is so dead certain that my client is dangerous, they should work hard to develop a case and prove it.

I don't know whether Mr. Wade actually committed the crime for which he was acquitted. I don't know if Mr. Wade had anything to do with the disappearance of Ms. Schloss. What I do know is that there was plenty of reasonable doubt in his first case. And in our system, that means he should have been acquitted. Part of the price of that may, and I emphasize may, be that he was somehow involved in the death of Ms. Schloss. But even assuming that to be the case, his lawyers did an outstanding job and have nothing to be ashamed of. I also know that very few, if any, of us would want to live under a system where someone's potential future conduct is grounds to convict them when there is otherwise reasonable doubt.*

* I recognize some states allow civil commitment for individuals convicted of certain crimes. I also recognize that the Supreme Court has upheld this practice. That situation, as anti-thetical to liberty and a free society as it is, is inapposite here. Those commitments come after a conviction and a hearing. There was no conviction in this case, which means that the state could not have civilly committed him as dangerous anyway.

Congrats Steve

I just wanted to say a quick 'Congrats' to my friend Steve Hubacek. He won the Alaska State Fair giant cabbage weigh off with an 87.7 pound cabbage. He looks pretty happy:

Michael Vick, Part II

There's another point that keeps going through my head about Michael Vick: people generally ignore cruelty to other people but, in this country at least, get up in arms about cruelty to animals. I have represented people who have been charged with unbelievable cruelty towards other people, children even. These cases have, in some cases, gotten tremendous publicity. But public reaction is generally muted.

But somebody is charged with cruelty to animals and public reaction is swift and vitriolic. I know of several animal cruelty cases that have gotten publicity from up here in Alaska. The prosecutors have gotten letters from people all across the country demanding the maximum penalty, even if it is a first offense. Some horses haven't gotten enough food and all of a sudden, people across the country think the owner needs to do years in jail. Courtrooms are full at sentencing to make sure the judge knows the 'community is watching'. But someone tortures a child and nobody says anything. The judge sentences someone in an empty court.

Is that because moral outrage is higher in cases involving animal cruelty? Why? I can honestly say that if Michael Vick is indeed guilty, nothing he did even compares to people who torture other people. But those cases do not draw near the outrage. Is it because there is some cadre of animals lovers out there that keep an eye out for these cases, writing to DAs and urging high jail sentences? If so, some people need to get a life. Is it because this country is a bit nuts about our pets?

Again, I have no idea. What I do know is that it makes no sense.

Michael Vick, Part I

I've been watching Michael Vick's legal troubles and two main thoughts keep rolling around in my head. The other point, since it is so disparate, is in another post. I also want to say that, while I do not know whether he's guilty or not, I think dog fighting is disgusting. I think it is cruel and despicable, but it is well worth pondering why it is illegal.

It should be no surprise to those who know me that I have strong anarchist tendencies, but animals are considered property under law. The law does nothing if I decided I want to burn up my car providing that I do not harm anybody else by doing so. That includes harm to lienholders. So if I pay cash for a new Ferrari, drive it to the middle of my property and then set it on fire, legally, what have I done wrong? Nothing.

So why are animals different? Because they're alive? Realistically, such activity is outlawed because of our collective moral outrage (more on that in the next post). Is that a sufficient reason to outlaw something? Why? I don't really have an answer. I just keep mulling it over in my head. If moral outrage is philosophically sufficient to outlaw something, where is the line between society's moral outrage and individual rights?

Robert Bork argued that moral outrage is sufficient to outlaw some behavior and, ironically, he used dog abuse as his example. I have some rather profound disagreements with Bork's political and constitutional philosophy (this disagreement is probably crystallized in his description of the Ninth Amendment as an 'ink blot'). Yet to dismiss an argument because of who makes it is a genetic fallacy and as such, logically insupportable.

It seems to me that if animals are merely property, then dog fighting should not be outlawed. It may be disgusting and immoral, but there are lots of things that are disgusting and immoral that are legal. I think that the moral approbrium directed at Vick should show that not all social regulation has to originate with the government. Consider that Vick has lost every single one of his major endorsements, effectively costing him more money than most of us will ever see in our lifetimes. Further, Vick's employer has not yet decided whether it will allow him to keep his job. All of those are legitimate decisions between private parties and show that there are a lot of ways in which behavior can be regulated without any government rules.

If animals, though, are more than property, then there may be justification for such laws. But if animals are more than property, what would they be? To elevate them to the legal status of human beings, a la animal rights, is absurd. Its absurd because a brown bear, even in such a skewed legal system, will never be convicted for killing and eating a moose, even in the most brutal manner. Thus, animals would not ever be required to recognize and honor rights of other animals. Rather, it would only be humans who would be required to respect rights of animals. Such inconsistency demonstrates why animal rights is ultimately a philosophical dead end.

If animals are deemed to be legally more than property, what would that intermediate step be? What would it be based upon? I don't think the mere fact that animals are alive would be sufficient. Somehow, I do not think that the outrage against Vick would be as high if he went to see a demonstrate of a cobra and a mongoose fight. If it were snakes that were being destroyed, people might look askance at him but I doubt he would be facing federal charges or the loss of his endorsements and his job. This means that it is not merely an animals status as a living creature that generates the desire to protect animals.

So why the protection for dogs but not snakes? Is it because we find snakes repellant and dogs companionable? Is that a sufficient reason to distinguish? If so, how would we codify the distinction? Reptiles are deemed to be property and can safely be exhibited in fights, but displaying fights between mammals can result in jail time?

Maybe I am just a bit off by pondering this situation too much. Maybe I just think too much. I don't know. But I don't really have any good answers to the questions above, either.

Prison

Why are so many people in prison? This article tries to get to the bottom of that question. Very thought-provoking. Key passage: This situation raises a moral problem that we cannot avoid. We cannot pretend that there are more important problems in our society, or that this circumstance is the necessary solution to other, more pressing problems—unless we are also prepared to say that we have turned our backs on the ideal of equality for all citizens and abandoned the principles of justice. We ought to ask ourselves two questions: Just what manner of people are we Americans? And in light of this, what are our obligations to our fellow citizens—even those who break our laws? Read the whole thing.

Prosecutorial Misconduct

Out of Washington comes an interesting story about a prosecutor who was sleeping with a defendant's mom. The prosecutor says that the relationship ended when the kid (it's a juvenile case) was arrested. The mom says that the prosecutor tried to find out about the defense strategy and control the case. Whatever the case, I think the best course of action once it was known the kid was being investigated would have been for the prosecutor to recuse himself and his office.

Brilliant ad

This is a remarkable ad. Link from Radley. Spread it around.

Recent Movies

I've had the pleasure of seeing 2 really good movies recently: Ratatouille and Pan's Labyrinth. They are good for different reasons, but I would recommend both of them.

Ratatouille is the next good movie from Brad Bird. He does more with animation than many directors do with live actors. I must admit that part of the reason I enjoyed the movie is that it is so heavily focused upon good food. Well, Thomas Keller consulted, so what can you expect. But the movie succeeds because it is not merely a 'follow your dreams' movie, although it is that. It has several other subplots, the 'acting' is genuine (so to speak), and the graphics are stunning. Watch this movie and then re-watch some old Pixar, such as Toy Story. The graphic difference is incredible. Is it an in-depth movie about the human condition? No, but it is entertaining and competently done, but is something to say.

Pan's Labyrinth, on the other hand, is a much darker movie. A Mexican film, it is known outside of English speaking countries as the Labyrinth of the Faun because Pan has connotations that the director did not want. Set in fascist Spain in 1944, the film function on one level as a simple tale of a girl who loves fairy tales living in a very dark time. Her father has died and her mother has married a brutal Captain in the Spanish army. She and her mother go to the mill where her step-father is in charge of a small garrison assigned with the charge of rooting out local resistance troops. The girl learns that she may be the lost daughter of a powerful fairy king who ran away to the mortal world. She has to prove her worth, though, by finishing three tasks before she can be accepted back.

Put this way, this story sounds trite, something for children. Indeed, when the film first came out in Mexico parents brought their kids, believing it to be a 'fantasy' story. It is not. The movie has some rather graphic violence. The movie's main interest, though, is a focus upon obedience. How much do we really value obedience? Is unquestioning obedience better than questioning obedience or even disobedience? It has been several days since I finished watching it, but I find my mind returning to it several times to ponder how various events support the director's theory. That alone should show that it is worth watching.

Wrongful Convictions

1 out of 6 juries in criminal cases decide cases incorrectly according to a new study in The Journal of Empirical Legal Studies. The study is online here, but it costs $29 and I haven't spent the money yet.

1 in 6. Hhmmmm. That would seem to suggest that maybe, just maybe, political responses to crime such as:

increasing the number and types of crimes
increasing jail sentences
mandatory minimum jail sentences
reducing probation/parole options
increasing public defender caseloads
limiting defense access to discovery
sex offender registries
reducing ground for bail
the drug war in general

(to name a few) are potentially misguided. Just a thought.

American Prisons

Radley Balko has a sobering note that, last year, the US gained more than 62,000 prisoners. Worst part of it: the US incarceration rate for black men is over five times higher than South Africa's incarceration rate for black men at the time of apartheid. Think about that. A black man in America today is five times more likely to be behind bars than he would have been if he lived in South Africa in the late 80's.

Legal Humor

I generally don't post portions of the flotsam and jetsam I receive in email, but I thought this was sufficiently humorous I would make an exception. It's about how to pronounce "Daubert", as in the famous case on Evidence Rule 702. For non-attorney readers, all I can say is that you sort of have to have a working knowledge of Daubert to get the full humor.

The Daubert Worldview

Prolegomenon: A Pronunciation Gazetteer
Q: Before we get to what it all means, how is "Daubert" pronounced?
A: "Dow-burt."

Q: How do you know?
A: From published, peer-reviewed literature authored by a duly licensed attorney who developed his views in the regular course of his professional duties. See Michael H. Gottesman, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor, 43 Emory L.J. 867, 867 (1994).

Q: What makes Gottesman an expert on this subject?
A: He represented Jason Daubert before the Supreme Court and listened to his client pronounce the name.

Q: So Gottesman's opinion on the correct pronunciation was developed for litigation purposes?
A: Yes.

Q: Is "dow-burt" the generally accepted pronunciation? A: Not universally so. Many lawyers and judges say "dough-bear."

Q: Well, what about the methods Gottesman used to arrive at his conclusion? Is listening to the client a prevalent methodology in the legal field?
A: To a point.

Q: So did Gottesman take any courses on listening to the client during law school?
A: Almost certainly not.

Q: Has the technique of listening to the client been tested?
A: Informally.

Q: Does it have a known error rate?
A: The error rate is thought to be fairly high.

Q: Has Gottesman been consistent, at least, in the position he has taken on the proper pronunciation?
A: No. When he was arguing the case before the Supreme Court, he pronounced the name "dough-bear."

Q: Why?
A: The Justices seemed to prefer that pronunciation.

How to Hire A Criminal Defense Lawyer

Being in private practice, I encounter a number of people who are looking for a criminal defense attorney. Many times, the need is urgent because someone in their family was just arrested, or they hear that there is a warrant out for their arrest. In those circumstances, there can be almost a panic to hire a lawyer. So how do you do it?

There are several things to look at. First, and this may seem obvious but it is surprising how many times people miss it, make sure that the lawyer you are talking with handles criminal cases. Just because some attorney handled your divorce or the closing on your house does not mean that lawyer would do well in a criminal case. Nevertheless, one of the best places to start is with lawyers that you may know. Ask them who they would hire for the type of case.

This part is also important. Not all criminal defense lawyers handle all criminal cases. Federal law, for example, is generally dramatically different from state law. Make sure the lawyer can handle your type of case.

If you do not know a lawyer, check out some attorney groups focusing on criminal defense. NACDL (National Association of Criminal Defense Lawyers), for example, has a membership directory. Many states have their own state organization. (Alaska's is the Alaska Academy of Trial Lawyers.) A google search would easily find those groups. Use their membership directory. Membership in such an organization, while certainly not necessary to practice, shows that the lawyer at least has enough interest and focus in the area to spend money to be a part of the organization.

Start calling people that come up in the member search. Ask if they handle these types of cases and if they can handle your case. There may be legitimate reasons they cannot. The lawyer may not have time right then or there may be a conflict of interest. Make an appointment and go visit the potential lawyer.

Should you find out the fee before you go to see the lawyer? That depends. If you are pressed for time or you know that you are going to hire a particular lawyer, it is a good idea. On the other hand, if you have some time, I would recommend seeing several lawyers. Law is an art, not a science, and there are several different ways to approach the same problem. You should go with a lawyer you are comfortable with. To know who that is, you should visit a few. You should also hire a lawyer whose direction or outlook is the same as yours. Stay away from lawyers that try to push you into a particular choice of action, such as pleading or trial, without knowing a great deal about the case.

Also stay away from lawyers that promise really good results. Good results can happen, but even the best lawyers do not always get the results they want. The reality is there are three types of cases: cases easily won (acquittal), cases easily lost (conviction), and cases in the middle. Every client wants to think that their case can be easily won. That is not the case. Good lawyers will have higher winning percentages, all things being equal, of the cases in the middle. Cases easily lost are cases in which the evidence is rather strong and you might want to really consider a plea bargain. Some lawyers are better at trial than at negotiations. If you are not familiar with the evidence that will be presented against you, you should be prepared for all possibilities. Sometimes it is better to hire a lawyer who can negotiate a good deal for you rather than a fire-breathing trial monster. If the evidence is overwhelming, you may want someone who can minimize potential jail or prison time. A trial monster may not be such a person. On the other hand, you may decide that you are going to trial no matter what. In such a case, get the trial monster.

This is one reason why asking, "What is your record?" is not really helpful. What do you mean by 'winning'? Straight acquittal? Does not always happen. Further, the less serious the charge, the greater chance at an acquittal. There are several reasons for this, but a lawyer with a high winning percentage handling misdemeanors may not be as good as a lawyer with a low winning percentage in homicides.

So how to lawyers charge? Depends upon the case. Lawyers generally charge either a flat fee or an hourly rate, depending on a number of factors. For smaller cases, DUIs, misdemeanors, maybe low level felonies, it is quite common for a lawyer to charge a flat fee. There are many stages of a criminal prosecution. Your lawyer should explain the general procedure for your jurisdiction. If she charges a flat fee, make sure you understand what that covers. Does it only cover initial proceedings or does it go all the way through trial? If it goes through trial, would you get a refund if it settles? The answers may not always be so clear. I know of an attorney who charges a certain fee for a DUI. Whether there is a trial or not, that is the fee. On one hand, it can be nice to know that you won't have to pay extra money for a trial if you want it. On the other hand, maybe you don't want to pay for a service that you don't use.

Hourly rates are generally used for more complicated or expensive cases. In these cases, money is deposited into a special bank account lawyers keep called a trust account. The rules governing trust accounts are very specific and strict. There are few ways to lose your license to practice law as fast as taking money from a trust account without proper authorization. The lawyer keeps track of his time and at agreed upon intervals (once or twice a month), notifies you of the time he spent and what he will be withdrawing from the trust account.

Expenses for cases are also paid by the client. Common expenses include experts, investigators, transcripts, paralegal work, travel, and copying charges. Your lawyer should explain how those expenses are tracked and how you are to pay for them. Be wary of lawyers that try to push a great deal of expenses without explaining them to you. But also be careful of lawyers that do not spend money that needs to be spent, such as an investigator. If you cannot afford an expert or an investigator, you should consider another attorney or appointed counsel. Hiring an attorney without providing funds for such is going into a fight with one hand tied behind your back. It is not smart.

If you do have some time and have been able to talk with several lawyers, you will most likely wind up with more than one lawyer you are considering. If that is the case, go with the lawyer that you felt the best about. You (or a family member or a friend) are about to go through a pretty traumatic and rough experience. While the tips I've given above will help you decide who is qualified, there is realistically no way I can tell you who you would be best hiring. You would do well to go through this experience with someone you get along with.

I hope this helps. If you have any questions about what I have written, feel free to email me. Please do not, though, email to ask about a particular attorney.

Private Practice

This weeks marks the one year anniversary of my being in private practice and I thought I would comment a bit on what I've learned.

I really enjoy being on my own. There are some downsides, to be sure. Money is not as constant. The expenses are certainly higher. I miss murder cases. (I know, I'm a sick puppy, but what can I say?)

But there are a number of other benefits. For one, I control my caseload. This means that I take only cases I want to take. Why might I not want to take a case? The type of case, for one. I don't really like DV hearings, so I can send them to someone else. The client can make me not want to take a case. Some people have unreasonable expectations. My caseload could also be too high. I have turned away some work for this reason at times. I also have the benefit of talking to someone before charges are filed. This is a huge advantage. I have been able on several cases to tell clients to shut their mouth, preventing them from talking to the police. I can take different types of cases. For example, I am trying to build a federal practice. (I did tell you I was a sick puppy, right?) Couldn't do that as a State employee.

All in all, I enjoy being my own boss. I wouldn't trade it for the world. We all have to find our way, to follow our passion. And I am not really cut out to be an employee. That's neither good nor bad. It just is. I have a nice Mac at work that I have loaded with all of my music. When I work late, I can crank up some tunes. I can look at whatever I want to look at without running into filters that prevent you from looking at anything not work-related Maybe I just have a problem with authority. Whatever it is, I am enjoying it immensely.

Fallout from the Duke case

Radley Balko has an excellent article about some of the implications of the Duke case. While he starts with the Duke case, he quickly uses it to cast questions upon our justice system.

In response to the Duke case and its ramifications, a Colorado Judge wrote an editorial for the Wall Street Journal (free link no longer available) in which he argued that statistically there are only a few cases of proven innocence. Since the numbers are so low, groups like the Innocence Project are creating a lot of hysteria over nothing.

The eyewitness ID blog (which will be added to my blog roll when I get around to it, as will some other blogs) had a couple of posts that rightly took the judge to task. The first post pointed out that this is not a statistical problem. It is a moral problem with our justice system that we have so many wrongful convictions. The second post focuses on how much our system glosses over the types of errors that lead to wrongful convictions. How many cases get reversed on appeal? Very few. And how many are revered on a post-conviction relief petition? Even fewer. These are in part because the system does not really want any reform to examine the prevalence of wrongful convictions. These are excellent points and I cannot recommend the posts highly enough, but I want to add my own two cents.

The WSJ article says there's no way to figure out a known false conviction rate. That's true. But that misses the point. The exonerations should make us pause for a couple of reasons. First, we are seeing, as Radley notes, a lot of overturned convictions come from Dallas because the Dallas police department has kept physical evidence. Thus, it is one of the few jurisdictions in which we can go back and use objective evidence to see if convictions were wrong.

But there's another problem: DNA evidence, even if it is preserved, is simply not available in every case. Yet we are seeing that juries have convicted the wrong people based upon wrongful IDs, false confessions, incompetent or dishonest forensic lab technicians, legal malpractice, and a variety of other issues. Those issues are present in a vast number of cases where DNA is not even an issue. The citizenry is glad to see an innocent person walk out of jail, but they also scream for his conviction during trial. When legislatures deal with funding criminal justice issues, there is a lot of money for DAs, cops, victims' programs, prisons, judges, parole officers, polygraph operators to watch those sex offenders, lab technicians, and anybody else to get people into jail.

But one of the best ways to prevent wrongful convictions is to have a vigorous defense bar. A defense bar with a case load low enough that they can return phone calls, investigate matters and properly prepare for trials. Alaska's better than most, but we're a long way from ideal. The Alaska Legislature, I think, would rather fund animal research for cosmetics than indigent defense agencies. I'm not a real big fan of taxes being rather anarchistic myself, but as long as the State's going to pay to prosecute people, it should pay the public defenders well enough to be an effective foil to the prosecution.

Another reform would be to separate the state forensic laboratories from being part of law enforcement. The Dallas sheet rock scandal, Fred Zane in West Virginia and San Antonio, the DNA technician in Oklahoma, all are examples of what happens when forensic technicians switch from being scientists to being advocates. A good way to prevent this would be to make the agencies neutral. Privatize the labs. Even the medical examiner's office.

There are a number of ID reforms that could be implemented. For some reasons, though, States do not seem to be rushing to implement them. There has been some movement regarding tape recording all statements, but again, it is sporadic. Federal law enforcement agencies greatly resist such efforts.

Nobody wants the innocent to go to jail. But it seems we really have adopted Feliks Dzerzhinsky's philosophy: Its better to execute 10 innocent men than to leave one guilty man alive. When judges blithely admit errors and say that its no big deal, when they say that we should ignore the questions that this wave of exonerations has raised, when they accuse some people of worshipping innocence, is it such an unreasonable conclusion? No.

Sonya Ivanoff Bill

Governor Palin yesterday signed the Sonya Ivanoff Act, a bill that mandates a 99 year prison sentence for police officers who kill while on duty. It is based upon the murder of Sonya Ivanoff, who was killed in Nome in August, 2003. A Nome police officer, Matt Owens, was convicted of killing Sonya. There's just one problem: Matt did not do it.

I was one of Matt's lawyers in his second trial. The first trial ended in a hung jury. I was working for OPA at the time and was assigned the case for re-trial. The original trial attorney, who is one of the finest defense attorneys in the country, did the second trial with me. The case took 2 months to try so to try to set forth all of the reasons would take a book. I will try to hit the high points, or rather, the low points, here.

The State's theory is that Matt, a white police officer, picked up Sonya, an attractive young Native woman, while on duty. He took her a short ways out of town, shot her, and left her in some brush. Sonya was reported missing by her roommate. About a day later, she was found. There was no physical evidence that pointed to anybody, and the town of Nome was literally up in arms. While this case was being investigated, a woman called to say that she had seen Sonya getting into a police car about 1:30 on a Monday morning (Sunday night). Nothing was done about this tip for roughly a month. Then, a Nome police officer who was reviewing the materials saw a record of this phone call. He went and talked to the witness, who described how she had seen Sonya get into a police car. Matt was one of 2 officers on duty at that time.

That short paragraph does not hint at the racial tension and turmoil that this set of events caused. The governing authorities in Nome have been white for roughly the past century. It is a century that is not marked by peace and good will towards others. Rather, the police have, at best, turned a blind eye to abuses of Alaska Natives. At worst, the police have taken a part in such abuses. One reason Nome has so many bars is that they were set up by whites to cheat Natives. Sell watered down whisky at inflated prices and then steal ivory and furs from them. Police reports of assaults or other maltreatment of Natives are legion, documented occasions when Cops would drive intoxicated Natives outside of town to make them walk back, taking money or other items from them. Nome is a wet town (meaning alcohol can be sold) and many people come from surrounding dry (no alcohol is allowed, period) villages in part to drink. Given that roughly 95% of the population of surrounding villages are Alaska Natives, the overwhelming number of visitors from those towns are Native. Over the past several decades, a number of Alaska Natives disappeared or died and this just fed the rumor mill. Two of the more popular rumors were that Nome cops would kill people and dump them into the bay or that there was a serial killer on the loose, a serial killer so deep in the white power structure that Nome cops looked the other way. In fact, during the second trial, the Anchorage Daily News ran a front page Sunday newspaper article about this situation. The US Attorney for the District of Alaska came to Nome to conduct hearings and review the reports. Given this backdrop, it is not surprising that when Sonya was reported to have gotten into a police car, all of the fears of the local populace were vindicated.

Since there was some indication of possible police involvement, the investigation was turned over to Alaska State Troopers. Matt and the other police officer, Stan, were to fly to Anchorage to meet with troopers. The night before Matt was to go, a Nome police car was stolen (at that time, the cars were kept unlocked with the keys in them. There had never been any problems before this). Matt was on duty the night when this car was reported stolen. He found it in an abandoned mining pit. He called in to dispatch and went to the vehicle. While approaching it, someone fired a gun. Matt radioed shots fired and ran away. The cops investigated the matter and found an envelope with one of Sonya's pool passes and a note threatening investigators. They also found a shotgun and expended shell. Given that Matt had been fired upon, mental health counsellors advised he take two weeks off. This message was never passed on to troopers. So, when they were expecting him to get off the plane, he was not there. Matt was convicted at that point. The rest was just a formality.

The cops did not believe Matt's version about what happened in the gravel pit because he did not follow police protocols by his own admission and because he could not recall exactly how he ran through the underbrush in the dark September night after having been fired upon. When I say he did not follow protocols, I meant that when he saw the car, he just got out and walked up to it. He testified he thought juveniles had taken it for a joy ride and left it in the gravel pit. He should have waited for backup and not approached the car on his own. Ultimately, they arrested him and brought him to trial. As I've said, there are a great many more details that could be raised, but there are several points that have convinced me that Matt did not do it.

For one, the police car described by the witness matched the police car driven by the OTHER DRIVER. She gave a statement to the police in early September, 2003. She described it as a 'new' police car. The other cop, Stan, was driving the new police car. She described the various decals and where they were. The new police car did not have some of the decals she described. Further, some common decals were placed differently; i.e., the 9-1-1 sticker was on the side rather than the back, etc.. All of her descriptions matched the other police car. Why then were they convinced she described Matt's car? In December, after Matt's arrest, the cops asked if she ever saw running boards. She did not even know what they were. After they told her that Matt's car had running boards and what they were, she said that the car had running boards. There's only one problem: she was standing on her porch when she saw the car. The ground sloped down to where she saw Sonya getting into a police car. Between her and the police car (which was a Ford SUV) were several smaller cars. She could see roughly the top half of the vehicle but she could not see the running boards.

Matt supposedly kills Sonya in about 20 minutes. He picked Sonya up, according to the State, at 1:25. At 1:45, he was back down on Main Street to deal with bar closure. The other officer at the time clearly says that Matt was at bar closing at 1:45. It was pouring rain at the time. Yet Matt was completely dry. No physical evidence ever tied Matt to this case. No hair. No fibers. No blood. Sonya was shot in the back of the head from point blank range by someone who was most likely grabbing her. Nothing of Sonya's was ever found on Matt's uniform or in his car. No tire tracks matching Matt's police car, or any other car he drove, for example, were found at the scene.

The rain is important for another reason. Sonya was dumped in the brush near a rutted track. On that track, unobstructed by brush, was a giant blood pool. The weather at that time was rainy from about 4:00 Sunday evening to 5:00 Monday evening. Between 1:30 a.m. Monday and 5:00 Monday, it rained almost 1". I have cut up caribou and moose in the rain so I know what happens to giant pools of blood that have water dumped on them: they dissipate and trickle away. Stuart James, who literally wrote the book on bloodstain pattern analysis, testified that there was no way that blood could have been put there at 1:30 a.m. given the rain that subsequently fell. He testified that the blood had to have been deposited there after the rain stopped. The rain stopped, if you recall, at 5:00 Monday night.

This brings us to main point number 2: two people claim to have seen Sonya on Monday night, roughly 18 hours after the state says she was dead. One was a fellow working up there in one of the mining pits. He saw Sonya in a vehicle with some other people. He had been working a lot and Friday after she was murdered, he went to the Subway in Nome (yes, there is a Subway in Nome) and saw her picture. It was a 'missing' picture that friends had been put up before her body was found. He thought, "Hey, I saw her", so he went to talk to the police.

The second person to claimed to have seen her Monday night was Stan, the other police officer. On Tuesday, Sonya's roommate came into the police station to report her as missing. Stan kind of shrugged it off and told her that he had seen Sonya "last night", which would have been Monday. The State tried to argue that Stan was confused and stupid, but there was literally no way for Stan to have seen her Sunday night. Further, after her body was found on Wednesday night, the cops went to get search warrants on Thursday. Stan testified in support of the search warrant. He testified under oath, roughly 60 hours later, that he had seen her "Monday" night.

As I've said, this is a greatly simplified version of a two month trial. There are, however, some additional points I want to raise. The State never found the gun used to kill Sonya. Troopers did find a .22 shell casing near where Sonya's body was found. They brought in a gun that Robert Shem, the state toolmark and firearm examiner, said, "Could not be excluded" as having made the marks on the shell casing. Luke Haag saw things differently. He wrote the book on reconstructing shooting incidents. He gave a number of reasons why the gun given the State could not have been the gun that fired the shell casing. When the State tried to impeach him with a letter that Haag wrote (in which he wrote, "Bob, I may be wrong, but..."), we introduced the rest of the evidence in which Haag castigated Bob Shem for abandoning the neutrality important for forensic examiners. Haag described how he had other toolmark examiners look at the data and the agreement was unanimous: the gun provided by the State could not have fired the shellcasing.

The defense provided some other experts. Lisa DiMeo testified that there was a set of tire tracks in the soft mud underneath the blood. The rain had erased most of the previous tire tracks. Her testimony showed that there was another vehicle that drove down the road after the rain ended but before the blood was deposited. You know how the State addressed this in it's closing argument? "Lisa DeMeo is from California and we all know that California is the land of 'DUH'."

The last expert was Greg McCrary. Greg is a former FBI agent who used to head the profiling division. He knows a thing or two about crime scene reconstruction. He testified that Matt's behavior in recovering the stolen police vehicle was consistent with police officers who, trying to be more helpful than hard ass, don't always follow established procedures. He said that FBI studies show that police officers with this attitude are much more likely to be killed than the average officer or the hard-ass officer. He said that if Alaska had provided their case file to the profiling unit at the FBI, the FBI would have said two things: 1) there's nothing close to evidence that points to Matt as the killer, and 2) Matt did not fit the profile of the person that killed Sonya. This was in part because the FBI's opinion would be that the killing of Sonya was personal and committed by someone who knew her well. The State brought in several people to show that Matt and Sonya had been seen together, but the funny thing is, all of them were proven wrong. Several testified that they saw the two of them together about a month before Sonya was killed. Matt was proven to be in Florida at that time.

None of these experts are defense whores. In fact, most of the time, these experts testify for the prosecution. Their opinions and the physical evidence show that Matt could not have committed this crime. Did that phase the State? Not really. The DA, at Matt's sentencing, said that they think Matt was a serial killer who happened to be caught on his first victim.

Unfortunately, it appears that it is still an honor in Alaska to get a conviction on someone who is possibly innocent. Lest the reader think that this is merely sour grapes from a defense attorney, I would point to the William Osbourne case. Osbourne was convicted of sexual assault several years ago. The DNA testing was not as accurate as todays tests are and the tests showed that Osbourne was 84% likely to have provided the DNA recovered. Osbourne has filed to have the DNA tested, but the State has resisted. They repeatedly fight against federal orders to just test the DNA. This is a far cry from the justice-seeking attitude evidence by the new Dallas DA referenced above.

So, that is why I think that Matt is innocent. His case is up on appeal. One of the main points is venue. Venue in this case was a joke. Our pre-trial opinion surveys shows that almost 60% of the people in Kotzebue (where we did the second trial) thought he was guilty. Just before we started trial, one of the jurors asked to speak with the lawyers and the judge. He said, "I can't do this." His wife was from the village where Sonya Ivanoff had lived. He said that everybody in town knew how this case was supposed to turn out and he was concerned for reprisals against his wife and family if he was on the jury and the trial did not turn out as it was supposed to. We renewed our motion to change venue, but it was denied. I have serious questions about whether Matt's case will be reversed in state court because if it is, it means that Matt as a white cop did not get a fair trial by a Native jury panel. The federal bench here is pretty good and I think we've got a decent shot at federal habeas for an unreasonable application of state law. We did federalize the hell out of our motions to preserve the matter. A decent shot at federal habeas, though, is still a small shot.

On a personal note, the case was the nadir of my career for several reasons. It's bad enough that someone you know is innocent is convicted, but I was not prepared for the trial like I wanted to be. I had six months to prepare for the re-trial and it was just not enough time in general. I had too many other cases and efforts to lighten my case load went nowhere. When the PCR comes, I will testify to such. Several people that were involved in the first trial have commented that the case was too large to learn in 6 months. It's cold comfort. In my mind, I know that the trial was lost once jurisdiction went to Kotzebue, but that doesn't make the pill any easier to swallow. One benefit to private practice is I can decide what cases I want to take. I am not going back to Nome or Kotzebue as an attorney. Further, I will never take another case where that judge is presiding. And if I get a case like this, I can refuse other cases that would impinge upon my ability to properly prepare, a situation I was never afforded at OPA.

I was talking with an attorney friend in the past several months about which attorney he would hire if he were charged with a crime. We talked about the crime, custody, etc. He ultimately said if it was a serious charge and he was out of custody, there would be no attorney because he would take off. He said he has no faith in the justice system and he would be gone ASAP. Cases like Matt's show that is not an unreasonable answer.

Victims' Rights

Barry Boss has an excellent article about why the current victims' rights movement is bad for our justice system. Nobody would say that complaining witnesses should be treated poorly, but such a focus upon the rights of 'victims' is having several pernicious effects upon our criminal justice system. For one, it skews the system away from justice and toward revenge or retribution. Secondly, it takes control of a case out of the hands of the prosecutors and puts it into the hands of the complaining witnesses. Third, it greatly erodes the presumption of innocence because we start with the idea that the defendant has indeed committed a crime since these people are 'victims'. Lastly, it also undermines a defendant's right to cross-examination since attempts to question credibility are not viewed as the rightful testing of an accused's story, but rather 'victim bashing'. No, it's not victim bashing. Its testing evidence because someone's more important rights, life and liberty, are at stake.

To give an idea of some of the absurd results that can occur with this victim rights fetish, consider a somewhat recent (within the last couple of years) case from Anchorage. The client was arrested for possession, not distribution or manufacture, of child pornography. Some of the images involved were known child pornography*, US Dept. of Justice having determined that the images were created in the early to mid 90s in eastern Europe. The prosecution and defense reached a bail stipulation that would have allowed for the defendant's release from custody before trial since he was, after all, presumed innocent and entitled to bail under the constitutions of Alaska and United States. Alaska victim rights' law requires that the prosecution contact the 'victims' of a crime. As you might imagine, there was no way for the prosecution to determine the identify of the girls in the images, let alone find out how to contact them. Along comes the District Court Judge who refuses to let the guy out of jail because the prosecution had not contacted the victims. Even the prosecution thought that this finding was unreasonable. So, the case had to be postponed and set before a different judge, one who possessed a more enlightened understanding of the law.

*Child pornography is generally defined as actual images of persons under a certain age. Given Photoshop and other imaging technology, it is possible to take a legal photograph of adults engaged in sexual activity and change it to appear to be an underage person. One element that must be proven in a child pornography prosecution is that the images are indeed child pornography and not altered ("morphed" as its generally known) images. US DOJ and some other organizations have, through prosecutions, been able to determine how certain images were made. Images that are indeed actual depictions of underage persons are recorded so that in future prosecutions, the prosecution can rely upon previous court findings regarding those images.

Courtroom Hanky Panky

From Colorado comes news that a sitting judge was carrying on with a local attorney. Maybe not that big of a deal if they had been out in the open about it and they had no professional dealings. I know of several local attorneys who are married to local judges. Interestingly, they are all very, very good lawyers.

However, the attorney, who was a prosecutor, was assigned to this judge's courtroom and the affair was kept secret. She was handling 'dispositions', which the article does not define, but I would gather that it involved changes of plea. For those who are inexperienced with these matters, it is quite common for aspects of plea bargains to remain open, that is, for the court to decide these matters. Terms and length of probation are commonly left open for the court to decide, although there may be other conditions as well. For these two to do this should result in the disbarring of both of them and a re-examination of all dispositions conducted by her in his courtroom.

December 31, 2002

This is a long post, but the post below made this a good reason to blog about this.

The post below involves a post by Kevin Ramey, aka Birdman, on his myspace webpage. What I really remember Kevin for is not really Kevin, but his brother Ron. You see, Ron died in my backyard on December 31, 2002.

To fully understand, I need to set some background. At the time, I was the public defender in Dillingham, Alaska, about 350 miles westsouthwest of Anchorage. I lived about 20 miles north of town in a village named Aleknagik. It sat on the shores of Lake Aleknagik, the southernmost lake in the Wood-Tikchik park. (Check out the map - it will help make more sense of this story.) Aleknagik is, for now, split into two parts, north shore and south shore. The north shore part of town is on the north shore of the lake. You should be able to figure out where the south shore part of the town is. We lived in a house on the lake on the south shore. It's just above the asterisk on the map linked above.

Because of where we lived, people would frequently come by our house when crossing from the north shore to the south shore. We travelled across the lake via snowmachine in the winter and boat in the summer. The narrrow point between the north and south shore right by our house rarely froze because that area was comparatively shallow and the water was fast moving. As such, it was generally open year round and some people could cross via boat even in cold times of the year.

Some of this story we pieced together later, but early in the morning of December 31, 2002, around 1:00 or so, we heard a truck pull up by our house and sit there for several minutes. The truck then left. It turns out that a friend of ours from across the lake, Jim Caston, had tried to cross the lake in a canoe with a couple of friends, Chris Cooper (who had been a client of mine a couple of times) and Ron Ramey (who had not been a client of mine). Ron Ramey is the brother of Kevin Ramey from the post below. Jim lived directly across the lake and we could see his house from ours. He had been at the house of his sister's and her husband. Chris and Ron had stopped by to see him. They were fairly inebriated and announced that they were going to canoe across the lake. Jim, who was pretty much sober, said he would row the canoe since they were intoxicated. John Scott, Jim's brother-in-law, drove them to our house where they could launch the canoe. Ron's excess movement tipped the canoe and they went into the water by the shore.

Now, it had been fairly chilly for the past couple of weeks. The temperature was roughly 10 - 15 below Farenheit. If you look on the map, you see that a little bit east of the narrowing of Aleknagik is a small bay. That bay would rarely freeze over completely because it too was shallow. Nonetheless, at that time of year, the ice extended roughly 75 - 100 feet into the bay. The owner of the house where we lived would frequently park a barge along the shore there to keep it available for the spring barging season and this winter, a barge was included in the ice. Also on our property was a small shed where the barging company of the property owner would store some equipment.

In temperatures that cold, Jim rounded up Chris and Ron and they went back to his brother-in-law's house to dry out and get warm. They warmed up a bit and Chris announced he and Ron were going to cross that night. They were told this was a bad idea. Chris said, "What are you going to do - lock the canoe?" So, they went back and got in the canoe. John sat in the car and watched them cross. Jim's wife, Darilyn, was watching from the north shore.

Christina and I heard the truck come back and sit by the house idling for a while. Then the phone rang. Once. I had been lying there listening and when that phone rang, my heart skipped a beat. I opened one eye and looked at Christina. She was looking at me. A few seconds later, the phone rang again. Christina got it (it was on her side of the bed) and she told me that Jim needed some help. She told me to get dressed and go help him. So, I grabbed my fleece-lined jeans and a flannel shirt and went downstairs to get my bunny boots. As I'm putting them on, I can see John walking up to the house. He walks into the house and says, "Jim just went into the damn lake."

If you are reading this in warm comfort from some place like Arizona or Florida, you have no way of knowing what that statement meant. It sounds dramatic, but it's true - Jim was a dead man. I threw on my boots and coat and stepped outside.

Have you ever noticed that on clear, cold nights, sound travels very, very well? It did that night. I did not ever hear Ron, but I could hear Jim and Chris. They were yelling for help. That does not really cover it, though. Jim kept saying, "Oh my God. It hurts. It's so fucking cold. Get your ass out here. Get out here right fucking now. Do you know I'm dying. I'm dying goddammit!" Chris was yelling, "Get out here! We need help. Come on! Oh God it hurts. Where are you?"

John and I ran down to the point, the place where the distance between the north and south shores was the shortest. People would often leave boats here and there was a short skiff with a kicker (outboard motor) on it. Between this skiff and the water, though, was a small ridge of gravel left over from barge work in the summer. At that temperature, it was solid as concrete and we needed to move the kicker over that ridge. The kicker was encased in ice - it wasn't starting until spring. But we could see an oar handle and we figured we could get to those guys and try to get them in the boat. Before we put the boat in the water, I looked at John and said, "We're going to do what we can to get Jim and Chris, but we are not going to endanger our lives. If we cannot save them and return safely, we're not going to do it." John, who had been an MP, paused for a second and nodded grimly. He climbed into the boat and I got ready to push off.

"Wait! There's no oars in this boat!" John yelled at me. I looked at him quizzically because I had seen the handle. He held it up so I could see that the blade had been broken off the oar. "The goddamn oar is broken!" he sobbed. I paused a second as the impact of that news hit me. Jim and Chris were continuing to yell, although Chris was getting fainter because he was drifting away. I told John there was no point in going in that boat. With no oar, there was no way to steer and the current would take us away from Jim, who seemed to be in one place. I remember thinking quite clearly that Jim was going to die and I was going to listen to him.

We pulled the boat onto the shore and I told John to go into the house to see if Christina had reached the VPSO (what passes for a cop in rural Alaska - long story). I was going to try to find an oar in the shed. At that time, a snowmachine pulled up with two of John's teenage boys on it. Darilyn, Jim's wife, had called to John's house and they were coming to help. We found out that Darilyn had also called the VPSO. We sent them to the end of the barge to keep talking to Jim and Chris (if he could hear) and I went to the shed to get an oar. While I was in the shed, I heard a boat motor running and the VPSO (he kept his motor ready for accidents) came up to the point to pick up John. I left the shed and went to the end of the barge with John's boys. Jim had kept up his tirade. It turns out that he had borrowed some gloves that were a little bit too small for him and so he was not able to get them off. When the canoe tipped over, he kicked off his shoes and swam for shore. When he put his hands on the ice, the gloves instantly froze, preventing him from slipping under the ice.

I could see the VPSO and John reach Jim. They yelled, "We got him" and started to head for shore. The boat was crooked and I did not know what had happened, but I got the boys to bring the snowmachine down to the point. The boat pulled up and Jim was still in the water with John holding his head out of the water. John and I and his boys grabbed Jim (he was no small guy - about 250 normally; figure about 300 pounds with the water-logged clothes he was wearing) when he was in about 1 - 1 1/2 feet of water and dragged him to the snowmachine.

Jim started to slip into delirium - he started rambling and mumbling. He had been in the water about 10 - 15 minutes. He kept saying, "Tell my wife I love her." He talked about how pretty the stars were against the night sky. He talked about how he liked our house. He talked about how he wanted to fish off the point again. He talked about all sort of stuff. This is a sign that the hypothermia was worsening. Once hypothermia starts progressing, it goes fairly fast so we needed to get him warmed up.

We got him up to our house, about 20 yards away. To give you an idea of how cold it was, the bottom of my pants was covered with ice from being soaked with water and then freezing in the cold. The VPSO and John went off to look for Chris. Other people from town started patrolling and searching on their snowmachines as well. We got Jim into the kitchen, where Christina was on the phone to the hospital. She is a nurse and she worked at the hospital so she knew the doctors out there. We stripped Jim and dried him off. He kept going in and out of conciousness. Every time he started to go to sleep, we would try to wake him by talking to him. Several times, I had to slap him and yell at him. I usually yelled, "Dammit, Jim! You are not going to die in my kitchen!" I must confess that when I entered college, that was a phrase I never thought I would utter in my adult life.

We ultimately put him in front of the Toyo stove and covered him with many blankets, watching over him as he warmed up. It took almost 3 hours, but Jim pulled through. He did have a giant spot of frostbite on his heel. When the VPSO and John got to him, they tried to roll him in the boat. He was too heavy to get into the boat. As I mentioned earlier, he had kicked off his shoes. In trying to roll him into the boat, his foot hit the gunwale of the boat. It instantly froze to the side of the boat. He had a frostbitten area of about 2" wide on his heel where it hit the side of the boat. Ultimately, they pulled him off the ice and John just held him with his head out of the water and they drove the boat, slowly, over to the point with Jim still in the water, head and foot (frozen to the side of the boat) out of the water.

As for Ron, we never found him. He caused the canoe to turn over. They were about 1/2 of the way across when Chris remarked that the canoe was tilted. Jim started to say, "Don't move" but Ron, sitting on the floor of the canoe, shifted his weight. It tipped the canoe and he went right over. He sank and was never found. Chris Cooper found the canoe, floating upside down and got on top of it. He drifted with the current to eventually land on the south shore, a few hundred yards east of my house. From the tracks in the snow, it was determined that he got off the canoe and rested for a few minutes under a tree. He then began crawling toward the lights of my house. He was found a few hundred yards away, frozen in mid-crawl. He had already started to shed his clothes (those suffering from hypothermia will, in the last stages, think that they are hot and start shedding clothes. If searching for a person in conditions ripe for hypothermia, follow the clothes and you will usually find a body). His eyes were eerily open, staring at the goal he would never make.

The New Year's Eve celebration later that night was subdued. No fireworks. Everybody went to bed early. Nobody really talked about what happened, but just stared into New Year's drinks. We ultimately had some mental health counsellors come out and provide some counseling/therapy for those who were involved. John and Jim moved back Outside. I left Dillingham for the Mat-Su Valley.

Bush life is hard. There is no margin for error. A stupid mistake that causes embarrassment or discomfiture Outside will kill up here. Ron and Chris found out the hard way. As for me, well, maybe its superstition, maybe its an irrational fear, or maybe its my way of making peace with that night, but I've not gotten into a canoe since then. And I don't plan on it.