Alaskablawg

Home Phone Number

Skelly writes about a PD who is so busy he accepts collect calls from home. While this is a noble thought, I agree with CrimLaw: Nobody gets my home phone number. However, when I was the sole public defender in a small Alaska community, I got phone calls at home even though my number was unlisted. I remember 2 instances in particular: One Sunday evening, about 10:30, I got a phone call from a client wanting to know what was going to happen at her court date the next day. I told her I did not take calls at home and she could call me the next day. I don't know why that one sticks out so much. Maybe because it was so late. Maybe because the next day's hearing was a pretty simple hearing I had already explained. Anyway, I remember it.

The other one that sticks in my mind came the day after a fairly long and grueling trial. I had been up until 1 or 2 a.m. each night of the trial and had gotten a verdict somewhat late the day before. I cannot remember if I had any hearings the next day, but if I did, they were late in the day so I slept in. The office opened at 8:00 and at 8:05 (no joke) I was lying in bed thinking that I really needed to get up when the phone rang. It was a client who yelled at me, "You're not in the office working on my case!" (Again, no joke). I suggested that he commit a biological impossibility and hung up the phone. He did not call me at home again, although he did ask to use my boat a couple of times after that so I guess his feelings weren't too hurt.

These calls did not happen a great deal, but they did happen when I was in a smaller community.

Court decisions November 26, 2004

Court of Appeals had 3 decisions last week (The Supremes had a few as well, but no criminal ones):

First is Knutsen v. State. This case came out of Naknek, where I used to cover when I was a public defender. I did not do the trial, but it certainly got a lot of attention. Anyway, John "Smiley" Knutsen surreptitiously set up a video camera in the women's dressing room of the local swimming pool. This was discovered after he had recorded some women and girls changing their clothes but before Mr. Knutsen had a chance to view the tape. The surreptitious photograph of naked adults is a misdemeanor and of naked children is a felony. Mr. Knutsen wanted a jury instruction that he knew he would be photographing minors. The trial court declined. Mr. Knutsen was convicted and appealed this issue.

The Court of Appeals says that this defense was not applicable in this case. Mr. Knutsen was convicted of indecent photography. This statute makes it illegal to photograph a person's "genitals, anus or [female] breasts" without their consent or, if under the age of 16, the consent of the parent or guardian. Based on Alaska statutes, the mens rea is knowingly regarding to conduct and reckless about circumstances. So to convict Mr. Knutsen, the State must prove he knowingly took the photographs with reckless disregard that the subjects did not consent. The age is not really an issue to the element of the crime.

The age of the subjects, though, is relevant to punishment. If the subject is a minor, the conduct is a felony. If the subject is an adult, the conduct is a misdemeanor. Even though there is a distinction of punishment based on age, the state does not need to prove any mens rea regarding the age of the subject under the indecent photography statute. Other statutes prohibit photographing minors with their knowledge and those statutes do require a mens rea regarding age, but the conduct at issue in this case is the photographing without obtaining consent.

The court also ruled that Mr. Knutsen could be convicted of 2 misdemeanors and 6 felonies based on one event because there were 8 different subjects. Those sentences were run concurrently but stand as separate felonies.

Next, the court issued an opinion in Riggins v. State. Mr. Riggins was convicted of assault in the second degree for an assault on his girlfriend. The trial court allowed in evidence of previous assaults on this girlfriend and other girlfriends based on ARE (Alaska Rule of Evidence 404(b). Alaska is unfortunately following the national and federal trend in 404(b) prior bad act evidence. Evidence of prior domestic assaults, sex assaults, and sexual abuse of a minor charges (not convictions!) are allowed under certain circumstances. While courts used to just let anything in, the Court of Appeals in the recent decision of Bingaman v. State, 76 P.3d 398 (Alaska App. 2003) put some brakes on that practice (I want to emphasize the word some.). The Court ruled that just because 404(b) allowed evidence in, the evidence must still be relevant and more probative than prejudicial.

In this case, the court ruled that the prior convictions against this particular girlfriend could come in but the admission of the allegations and convictions against other girlfriends was an abuse of discretion. As such, the conviction was reversed and remanded for a new trial. This is a good case to read in conjunction with Bingaman and 404(b) evidence as well as the 403 prejudicial/probative balancing test. This case does not really seem to set new law so much but instead further defines the law and analysis set forth in Bingaman.

Lastly, the court issued a decision in Howard v. State. Mr. Howard was pulled over and given a ticket. In the process of the traffic stop, Mr. Howard identified himself not as Jarsis Howard, his lawful name, but rather as Omari Russell (someone known to him). When the trooper discovered the misidentification, Mr. Howard fled into the woods. The trooper did not follow him, concerned about a possible violent confrontation. Instead, an off-duty correctional officer, living next to where Mr. Howard was hiding, chased Mr. Howard into the woods and restrained him. Mr. Howard was charged with resisting arrest and forgery and convicted of both.

Mr. Howard's first argument was about the forgery, saying that there was insufficient evidence to convict him because he did not "intend to defraud" [statutory language] Omari Russell (the name given by Mr. Howard to the cops). The Court rules that even if Mr. Howard did not intend to defraud Mr. Russell, he did intend to defraud the court and the cop. They note that this result is consistent with a great many other jurisdictions. In Alaska, "intent to defraud" means "an intent to injure someone's interest which has value". The court decides that even if Howard only intended to avoid getting a ticket, the jury could find that he had an intent to harm Russell because Russell, not Howard, would bear the cost of the ticket. Further, the State is only obligated to prove that Howard had the intent to defraud someone if they proved that Howard had the "intent to defraud any person or corporation". Given that Howard's license was revoked, it was reasonable to determine that he knew what would happen based on traffic offenses and his knowledge about these consequences befalling Russell. Based on this, there was sufficient evidence to convict Howard of forgery.

However, the court ruled that there was not enough evidence to convict Howard of resisting arrest. The trooper had told Mr. Howard to turn around to be cuffed and Mr. Howard instead ran into the woods. Howard refused to submit to the arrest rather than actively resisting. The trooper admitted that the only thing Howard did was run into the woods. There was no struggle or fight so Howard was acquitted of the resisting arrest charge.

UK Home Protection

This article aims to give UK citizens advice about how to handle a 'hot burglary'. A hot burglary is a burglary that occurs while residents are at home. The article suggests that victims remain passive and give up your valuables without a struggle.

I do not wish to be an ugly American. I have travelled internationally and hope to do so in the future because I find it fascinating. I travelled throughout Hong Kong, eating in literally holes in the wall without English menus. The fun of leaving this country is experiencing other cultures, not eating at McDonald's. That said, such advice is just bullshit and makes me glad that, while this country is far from perfect, I live in this country and not one where I am punished for defending myself and my family.

Now, I know that the law does not allow one to use deadly force to protect property. However, if someone is in your house, you can use deadly force to protect yourself and your family from harm. The key is whether your belief is reasonable under the circumstances. You can kill someone based on a wrong belief but be legally not guilty if your belief about the danger you (or a third person) faces is reasonable. If you awake in the middle of the night to find someone in your home, chances are a jury will find such actions reasonable.

Having said that, keep in mind that there are cops (and DAs) who will still prosecute a homeowner. I represented a man charged with killing someone in his own home. The deceased had threatened my client with death and sex assault (he told my client, "You're going to die sucking my dick, Blondie.") Because of a poor interview, the cops and DA thought my client was lying and charged him. Fortunately, the jury realized what happened and voted not guilty.

Ask any lawyer for general advice and that lawyer will give equivocations and general principles, not really answering the question. So, I will not post anything here about when you can shoot someone or when you cannot. Laws differ among the different states and based on the circumstances. What I will say, though, is this: If I ever had to shoot someone in self defense, I would not say anything at all to the cops. Nothing. Zip. Nada. Zilch. I would instead get a lawyer ASAP.

Why? Because you never know how a cop or the DAs office is going to respond. Yes, there are a number of good cops who would take your word for what happened and get a DA anxious to make a name for herself. Or you might find a cop who thinks that the world is divided into cops and perps. Anything I tell my lawyer is confidential and what my lawyer tells the cops cannot be attributed to me. Further, let's say that in the excitement I get some details or facts about the shooting wrong. While entirely understandable and expected, do not think that the cops or the DAs will interpret it as such. Instead, the variation between your statement and the evidence will be viewed as proof that you are a lying scumbag who deserves to go to jail. Yes, you might win at a jury trial, but why give them more rope to hang you? Remember Miranda: Anything you say can and will be used against you. So, if it was me, I would keep my damn mouth SHUT! This is not construed to be legal advice in anyway, but the wise will listen and learn.

Tort Reform

Legal Underground tort reform series continues, linking to an article showing that those who advocate for tort reform are not the most accurate sources of information. The article shows that much of the information given by the Manhattan Institute in support of their tort reform efforts is wrong, probably deliberately so. A search of the 'tort reform' section on Legal Underground also brings up this article by Stephanie Mencimer of the Washington Monthly. She thoroughly debunks the idea that we are in a lawsuit crisis, pointing out that since 1975, the rate of lawsuits has been declining and that the actual number of lawsuits filed have been declining since 1996. Legal Underground also has a good post detailing why med mal lawyers, in general, don't just accept the stories of their clients and rush to file lawsuits.

Readers might wonder why a good libertarian would be against tort reform. After all, we support individual responsibility as well as individual liberty. True, but good libertarians do not believe in initiating force or fraud against others and being responsible for injuries caused. If a manufacturer sells a defective product that injures someone, that manufacturer should be responsible for damages. Likewise, if a doctor does not do her job according to relevant medical standards and someone is injured, that doctor should be responsible for the resulting injuries.

Such a form of 'regulation' is actually much cheaper and more efficient, but also less coercive, than government mandated regulations. This idea is a continuation of the English common law idea that people must behave reasonably. And quite frankly, I have a hard time imagining juries being substantially more compassionate in civil cases than criminal cases. Most of the defense attorneys to whom I speak or whose blogs I read seem fairly consistent that juries are extremely skeptical of their clients. It would seem to me that type of attitude would pervade civil cases as well.

Tort reform, then, seems a way to deny remedies and recourse for average citizens. Businesses will still have access to the courts, but tort reform will limit individuals' right of access to the courts. I grant that there are occasional jury awards that may be unjustified, but generally, the facts and circumstances of a case are not conveyed by the media. As such, it is hard to know just what was involved in a particular case. I figure that its easier and cheaper to let a few 'outrageous' verdicts be supported than to overhaul the whole system and deny all of us access to a court system.

Raich v. Ashcroft

Drug War Rant has, as promised, a great guide to Raich v. Ashcroft, the medical marijuana case set for argument Monday before the Supreme Court. The guide is a handy reference to the case's history, the legal principles involved, the players involved and some of the legal history involved. For lawyers and interested people, there is a section of links to the briefs submitted by parties and amici.

This case is important for more than just marijuana or drug war implications. This is one of the best commerce clause cases to come before the court in years. Interestingly, Alabama, Mississippi, and Louisiana filed amicus briefs urging the court to find the marijuana in question outside the reach of federal law. Alabama's brief is rather scary for the vehemence in which they proudly recite their drug-fighting past. But they also note that this activity should be beyond the reach of the feds.

I thought that Randy Barnett did a great job of distinguishing this case from Wickard v. Filburn, a case that greatly expanded Congress's commerce clause powers. I think this is significant because the court can uphold the 9th Circuit without overturning Wickard, which I think a majority of justice would be loathe to do (although the Institute for Justice urges the court to do just that in their amicus brief). The briefing by the respondents shows exactly why I think Randy Barnett should be George Bush's nominee for the Supreme Court. I really doubt he will, but he should be.

Anyway, Monday at 10:00 EST, the parties argue this case. Drug War Rant is looking for responses from anyone who is there in person. If anybody wants to email me about the argument, I would greatly appreciate it and will post good descriptions of the argument.

Bush practice

As should be obvious from my previous posts, Alaska is substantially different from the other states. While a lot of states can point to geographic differences in attitude (compare LA to San Francisco), no other state has the geographic diversity and the cultural diversity that Alaska has. Only about 1/3 of the state is accessible by road. The other communities must be reached by plane or boat. As you might imagine, practicing in such a community is substantially different than other practice areas. To fully describe those differences would require a book, which I may write someday, but not now. Time will show how many posts I make on this subject, but I thought that it might be interesting to convey some of what it is like to practice in a 'bush' area.

First, bush practice is characterized by informality. This reflects the lifestyle in general. I cannot imagine a more impractical outfit to wear in the Alaska Bush than a business suit. They are too thin to provide warmth and they are too easily torn, dirtied, damaged, etc. Business dress shoes do not last long on dirt roads or paths because the mud and gravel chew them up. I've also not seen a business shoe that will keep your feet warm at -30 or colder. When it is that cold (or colder), your car or other equipment does not work well (to say nothing of people). This greatly increases your chances that you will have to exit your vehicle to get it working, get it on the road, extract a moose from your grill, whatever. A business suit is an extremely poor choice of an outfit in those circumstances. It is hard to get axle grease, gasoline, antifreeze, or moose blood out of your suit. I realize it is just as hard to get axle grease, etc., out of jeans, but who cares? Just buy another pair to wear to court and wear the grease-stained ones when you're hunting.

Judges understand this and frequently do not wear suits themselves. In fact, most of the time, judges and lawyers do not wear even ties. During the time I spent in Dillingham, I would usually wear jeans and a flannel shirt to court for the most part. I would wear suits during trials, but this was a tremendous inconvenience.

The informality is also seen in the relationships between attorneys and also judges. In a town with three, maybe four lawyers, it is hard to be a jerk. I am not saying that it does not happen, but it is usually not cost-effective. The same with judges. I can recall several times getting a phone call from the judge who would say something like, "Hey, I just talked to the DA, and I am wondering if we can move the sentencing hearing set for tomorrow. The kings are running [for those who are not from Alaska, this means that the king salmon are swimming upstream, ready to be caught!] and I have a chance to get up river." Of course, if the judge was up fishing, I would try to go at the same time (not with the judge, although I did see him sometimes up the river. I would stop by his camp and have a beer or two).

Bush judges also have what I would refer to as a pragmatic practicality to their rulings. For example, in DUI cases in Alaska, first time offenders are required to pay a fine of $1500. If a client of mine lived in Togiak, for example, and had to pay $125 to fly to Dillingham, the court would frequently credit that flight cost to the fine, court costs, or mandated attorney fees. His reasoning, which I cannot fault, was that the cost to fly to Dillingham would not have to be paid by a Dillingham resident. Thus, the Togiak resident is being charged to exercise her constitutional right to live where she wants to.

I remember the first felony trial I had in Dillingham. A client of mine was charged with masturbating in front of children. As the proof came out at trial, the children had seen him doing this and yelled at him. He left and, unknown to him, the children followed him. When he resumed his hobby, the kids began to pelt him with rocks. He had a prior conviction (He was legally innocent on this charge) that came into evidence. I fought hard to exclude that conviction. Afterwards, the judge told me not to worry about it. He said that in small communities, the jury would know about the prior conviction even if it were not introduced into evidence and that the rumor mill would have made the conviction much worse than what actually happened. This was not a discussion about that particular case, but more about trying cases in small communities. The judge had practiced for several years in that community and he always followed the ethical rules, but he also was a good source of advice about local juries and attitudes.

The few attorneys in town formed the Bristol Bay bar association. We held our bar meeting in, you guessed it, a dive bar. And yes, I did have clients come and yell at me while we were having a meeting. The clients seemed to take that I was present with the DA, the magistrate, judge, and a couple of other attorneys from town as proof that we were all in cahoots together. We had no regularly scheduled meetings; at random intervals, one of the participants would suggest to all the others that 'it was time for a bar meeting', whereupon, we met and drank beer. Our Bar Association gained some notoriety for sending a resolution to the Alaska Bar that attorneys not be forced to wear ties in court. The law in Alaska (and there's an actual case on this) is that the judge has the authority to require attorneys to wear a tie. We wanted to change that law. The resolution was forwarded to the Alaska Supreme Court but was never acted upon. I suppose it did not make much difference because unless we were in trial or a felony sentencing hearing, nobody wore a tie anyway.

Life in bush Alaska is truly different and the practice of law reflects that difference. I hope to explore that difference further in the future.

Gut feeling, cont.

Ken Lammers follows up on his post about cops' gut feelings. While I'm sad to say that I think he is generally correct, I am also happy to say that, at least for the time being, matters are not as bad in Alaska. For example, under Stefan v. State, 711 P.2d 1157 (Alaska 1985), cops have to record any statement of an in-custody defendant before it can be admitted in court. As a practical matter, cops generally start recording before questioning of any witness. But this means that I can hear what my client said, which is invaluable. I hear the cop saying why he stopped my client. Sometimes, as you might expect, it's not the reason that is given in the police report (which we also get in Alaska). That leads to interesting motion work. The recording works both ways. I've had cases where the recording convinces me to go to trial and the flip, where it convinces me to try to get a favorable plea bargain.

Another benefit for Alaska is the way that indigent defense cases are handled. Typically, private attorneys get a contract with the Office of Public Advocacy (OPA). OPA has staff attorneys, such as myself, that handle cases. The contracts cover situations in which OPA staff attorneys cannot cover a case. The contract specifies a certain rate per hour, based on the types of cases and experience a lawyer has. Further, OPA, not the court, determines whether experts or investigators are hired for a case. For a misdemeanor DUI, your odds of getting an investigator are probably not terribly high as a general rule. For a homicide, though, I have never had a request turned down. Actually, I've never had an investigator or transcript request turned down. Before taking that statement to the bank, however, I offer a couple of provisos. First, the cases I get are generally homicides or other high-profile cases. (For the type of case I get, see here and here, both of which are my cases). As such, I'm more likely to get an investigator or transcripts if I need such. Second, I try to not abuse the privilege. I do not make a request unless I think it's really necessary and will be helpful.

That said, I agree that there are a lot of people that get convicted on conjecture or gut suspicion. While the law says that everyone is innocent until proven guilty, that's just a legal theory. In practice, I have to give a jury a good reason to acquit my client. If I argue that there is reasonable doubt about the case, I generally start preparing for an appeal (for non-lawyers, this means that I lose). I have heard jurors say after a verdict, "Well, there were several possibilities to explain what happen, and he [my client] did not disprove the state, so he must be guilty." This is ass-backwards. The state has to prove someone's guilt, but if I as a defense attorney argue this, many jurors think I'm just a slimy lawyer trying to hide facts and get some violent predator loose.

This is one reason why I (and most of the defense attorneys I know) prefer to represent guilty people. If I go to trial representing someone who's guilty and I lose, then in one sense, it is a lot less pressure. If I represent someone who is innocent, however, the jury is thinking "What did s/he do to be here?" And if I cannot actively persuade them that my client did nothing, my innocent client goes to jail.

Most citizens do not really want to examine what happens in the criminal justice system. That is a shame. We have watched over 100 people walk off death row, Death Row!!!, in the last 10 years or so for being innocent. Yet there has been no systematic investigation into how so many people could be convicted when they are innocent. We are not seeing systematic changes in the way that photo lineups are handled, in the way that state scientific laboratories are still run by the cops, in the way that judges give any benefit of doubt to cops, in the way we fund indigent defense, etc. So, like Ken, I am not surprised by skepticism about his posts because that attitude pervades the 'justice' system. And like Ken, I am saddened that attitude prevents us from seeking a justice system based on fairness, objectivity, and rationality.

Lawyers in Love

With apologies to Jackson Browne, Legal Underground has good advice for amorous lawyers. Now if they were public defenders, this type of behavior would be quietly applauded, except if it happened at the hot tub during the annual conference. Then the participants would be openly applauded. PD interns, from what I hear, seem to have a rousing send off as they get ready to steel themselves to face their third and final year of law school. This, impressionable law student, is why you should be a public defender. Of course, you get no money, clients do not really appreciate you, legislatures underfund you, and the public views you as one (small) step above a Nazi medical researcher. But hey, you don't get fired for having sex (generally).

Lawyer Toys

Legal Underground has an interesting post about digital cameras as toys for wealthy lawyers. Maybe one of these days I won't be a lowly PD and I can get people to pay for my services and I can afford a really nice camera. That would be nice since the decent digital camera I had was ruined when a friend drove it (and me) into an ice lead while caribou hunting last year. We did not get a caribou. I got a wet ass and a ruined camera.

Next, they are going to discuss big-ass yachts. Don't know if I need one, but I could really deal with a double rifle by Dakota, preferably in .500 Nitro Express. I do need it for my African Safari (which, at present income rates, will occur in roughly 2053). And in case you're wondering, I'll use my Ruger .416 Rigby for bears in Alaska.

Gut Feeling

Ken Lammers shuts down cops' gut feeling that a suspect is guilty.