Alaskablawg

Light Blogging

Blogging will be light over the next couple of weeks as I am going to be out of town. The Court of Appeals issued several major decisions Friday and I will be posting on them when I get the opportunity.

Lynne Stewart

Lynne Stewart was convicted last week. I think it is pretty clear that she violated the special administrative measures imposed by the feds. I am torn, though, in a couple of ways. First, it greatly bothers me that the feds were able to impose these measures about her visiting her client. On the flip side, these measures were put in place after her client was convicted of supporting acts of terrorism against this country. Further, when she did speak to the media and the world on behalf of her client, she announced that her client was withdrawing his support of a cease-fire agreement, which would seem a fairly strong indication of an incitement to violence. That said, no violence followed from her announcement and the cease fire at issue was in the Middle East, not in this country. Ignoring any attorney-client relationship aspects, I have problems with her being penalized for advocating any sort of idea, even an incitement to violence. I think that violates her First Amendment rights.

David Feige, at Slate.com, has an interesting article about Ms. Stewart's conviction. When I first heard of her arrest and of the terrorist measures put in place by the feds, I expected it to have a substantial chilling effect on attorney-client relationships. So far, that has not happened. From messages I have seen on listservs of different attorney groups and from other articles (such as this one from the NY Times) have led me to believe that this case may not have the chilling effect that I had feared. At any rate, it appears that this case is not so clear cut and there is reasonable grounds for disagreement about what this means. I will wait to see what ramifications this brings about.

Bush Practice, again

In the last post, I discussed bail somewhat tangentially to the subject of phones in court hearings. Bail in Alaska is really interesting for some reasons I have already discussed. As discussed before and below, the court frequently required a third party custodian (TPC) to monitor the defendant to make sure he abided by bail conditions until trial (I say he because in actuality, about 95% of my clients were male). The most common requirement was that the client not possess or consume alcohol. It is no exaggeration to say that in rural Alaska, over 95% of the people charged with crimes were extremely intoxicated at the time of the incident that alleged to arrest.

To give you an idea, the DUI statutes prohibit driving or otherwise operating a motor vehicle (Alaska specifically includes operating a boat, even on the open sea, in its DUI laws) with a blood alcohol concentration (BAC) over .08%. I would guess that the average BAC I dealt with was about a .25%. That is correct. Over three times the legal limit. At least once a month I dealt with a BAC over .30% and at least once a year I dealt with a BAC over .40%. For those who do not practice DUI law, .40% is considered lethal. It has a lethality rate of over 90%. That means that if you got 100 random adults intoxicated to over a .40%, more than 90 would die. The highest BAC I ever saw was a .57%, and she was walking.

Some of the villages I covered were dry, meaning that possession and distribution of alcohol were prohibited. Others were damp, meaning that it was legal to possess alcohol, but not legal to sell it. Those who regularly read this column know that I am a radical libertarian, favoring the lgealization of all drugs. I must confess, though, that I have some questions about allowing alcohol into some areas in rural Alaska. About a year ago, two rural towns in Alaska, unconnected by road to any other towns, went from dry to damp, meaning citizens could possess alcohol. These towns were about 500 people in population. After they went damp, the rate of sex assaults went up to about 2-3 a week. Yes, in a town of 500 people there were 2-3 sex assault complaints a week. The number of kids in need of aid also skyrocketed. Kids stopped coming to school because parents would be passed out and the older kids had to stay home to make sure younger kids were dressed, fed, and put in clean diapers. Domestic violence assault complaints rose about 500%. This experiment lasted about six months before both villages went back to being dry. Being dry did not erase all of the problems, but it lowered the sex assault rate to about 1 or 2 a year.

BTW, Alaska has the highest rate of sex assault and domestic violence in the country. 99% of these charges are related to alcohol. To understand an Alaskan drinking party, realize that such a party will involve 4 - 8 people who buy as much cheap booze as possible, R&R or Crystal Palace in 1.75l bottles. Upon opening a bottle, the lid is thrown away because it will not be needed. The drinking commences and continues until either 1) the booze disappears or 2) everybody passes out. If it is #2, the drinking resumes upon people achieving consciousness. It continues until one of the two alternatives occurs. If option number two, repeat until option one occurs. Then everybody scatters.

These drinking parties cause just about all of the sex assaults in Alaska outside Juneau, Anchorage, Fairbanks and maybe Kenai. I cannot even count the number of sex assaults I had where a woman would wake up from a four day bender and have sore genitalia. A sex assault exam would show that she had sex. She would say that she would never consent to having sex with the guys with whom she was drinking so it must be rape. And he would confess. No kidding. That is the average sex assault in Alaska.

Now, I understand that women have rights over what happens to their body. I accept that women can say 'no' and expect that it would be followed. But I also have a right to be safe in my person. That does not mean that I get really drunk, throw on a lot of expensive, flashy jewelry and walk through Central Park at 2:00 a.m. No, I do not deserve to be robbed, but anybody would tell me that is not a wise course of action. Yet these drinking parties continue day in and day out.

For these reasons, courts want to make sure that TPCs are sober and will call the police if a defendant begins to drink alcohol while out on bail. Somehow, I do not see ABC bonding in Los Angeles, CA, caring whether its clients drink alcohol. But bail conditions in Alaska require it.

Given all of this, it is hard to explain why marijuana is illegal and alcohol is, by and large, not. Alcohol, by any objective criteria, is a factor in a great many more violent crimes (other than possession/distribution crimes) than marijuana or even other drugs such as meth or crack. Yet alcohol is legal. Personally, I think this supports my dog sex theory. Most people recognize that they and their neighbors will be drink responsibly. They don't trust their neighbors to use drugs responsibly, though. Perhaps they should read Jacob Sollum's book. And have a drink. Or a smoke.

Bush Life, part whatever

Ken Lammers has a post in which is he amazed that the court handled a routine court case over the phone. If it were not for the phone, court hearings in rural Alaska would be cut by about 50 - 75%. I practiced in Dillingham, which had an 8 bed jail. It was common for people charged with really serious offenses to be sent to Anchorage fairly quickly. The bail statutes required that the defendant be transported to the place of arrest. Criminal Rules allow phone calls, but the party 'convenienced' had to pay for the call. If the State did not order transport of my client, the State had to pay for the phone call to the jail in Anchorage.

As I discussed earlier, though, bail frequently involves getting a friend of the defendant to be a third party custodian (TPC). If this person was in a small village, the TPC would most likely be on the phone. Remember, there are basically no roads. A village 50 miles away is separated by tundra, covered by snow in the wintertime but impassable in the summer. TPCs (or clients) would have to either boat or fly into Dillingham or be by phone. Considering a boat trip was impossible in the winter and usually a day plus trip in the summer and that plane fare was $75+ one way, the court usually allowed phone appearances.

Because of the size of Dillingham, the grand juries were conducted in Anchorage. (Alaska has an interesting rule about jurisdiction. Jurisdiction is statewide, although certain venues are recognized depending on where the crime or action is alleged to have occurred. Thus, a court in Ketchikan (1000 miles away) would have jurisdiction to hear cases brought in Dillingham. Ketchikan would just not be an appropriate venue.) If the DA was in Anchorage, the client was in Kenai, the TPC in Togiak, and the complaining witness was in Ekwok, someone would have to organize the teleconference. In those cases, the judge and I would be the only ones in the court room.

Of course, getting matters arranged for a client to return to the place of arrest was not always easy, either. I got reprimanded one time for a vehement message on the jail's voice message because they had not released a client of mine. I learned my lesson and grew to really appreciate my boss for not chastising me too hard. But getting matters worked out with transport and phone connections was not always easy.

Drug War Atrocity

From Drug War Rant comes this horrible story about the Drug War gone awry. When will we learn that this sort of thing is to be expected when we declare 'war' on drugs?

Legalization would stop this crap. I think that Dave Barry really hit it on the head when it came to legalization of socially frowned upon behavior. I call it the doggy sex argument. He argued that most people are against legalizing bestiality because if it became legal, everyone would want to have sex with their dogs. If you asked any specific individual, that person would always say, "No, I do not want to have sex with my dog, but my neighbor will. And that bothers me." (By the way, Barry's response was really good. Barry said that those advocating government control are rooting for a horrible system because more than one half of the people could pass a law that people had to have sex with dogs. Tyranny by the majority. Good rejoinder.)

Really, how many of your neighbors will have sex with their dogs if its legalized? Granted, Barry was being humorous to make a point, but it is well taken. Most people would be against legalization of drugs because "everybody will then take heroin". 98+% of the people polled would never want to take heroin, but they are dead-set convinced that their neighbor would. This is the same neighbor that would screw the dog, I suppose.

Yet such an argument demonstrates how fallacious it is. If prostitution were legalized tomorrow, how many more people would really solicit prostitutes? Maybe a few more, at least initially, but most people recognize that prostitutes are not a prime source for potential long-term relationships. In the same way, there might be a few more people who experimented with drugs, at least initially. But most people have behavioral regulating mechanisms in place (such as families, jobs, peer pressure, etc.) that deter addiction. Yet all of us give up our civil liberties because a comparatively few people do not exercise control when using various controlled and non-controlled substances. Why is it that Joe and Jane Citizen would never really consider having sex with the dog, visiting a prostitute or shooting up heroin but believe that only the threat of jail prevents all of their neighbors from doing so? If that's the case, I would suggest that they find a new neighborhood.

What a Pisser!

Paul Aremtanto asks, "Have you peed for your government/employer lately?"

The Federal Judiciary

I know that Underneath Their Robes is absolutely enamored with the federal bench, particularly the federal appellate bench. However, comparing federal criminal procedure to Alaska criminal procedure, I have no question that I would rather be in Alaska courts than federal courts (in a previous life, I did some federal criminal work and all I can say is "Good God, why not just throw the poor bastards in jail upon arrest? It avoids any pretense."). Plus, to my way of thinking, violent murder about sex and money is much more interesting than white collar crime. That said, this song about federal district judges is absolutely hysterical. Do not drink or eat anything before listening to this song! (RealPlayer required.)

Alaska AG

If you have not heard by now, Gregg Renkes, the Alaska Attorney General, has resigned. (an additional link is here, and the Daily News archive is here.) I have previously posted on this subject here, here, here and here. Essentially, Gregg Renkes had some stock in a company called KFx. KFx had developed a process to dry out damp coal/clean up dirty coal and make it easier/cleaner to burn. There is a great deal of coal in this state that classifies as 'damp' and KFx is understandably looking at Alaska as a place to show that their process works. The State was trying to interest bidders in the process and the Taiwan was interested. Renkes negotiated on behalf of Alaska, even though he held more than $120,000 worth of stock in KFx. Bob Bundy, a former US Attorney, reviewed Alaska laws and, while they were admittedly murky, determined that under Alaska law, Renkes' interest was not 'significant'. Bundy, who was privately appointed by the governor and did not have subpoena power, tried to recover some emails that were on Renkes state computer. Those emails were erased on October 1 (or maybe October 4, I can't remember). That is the same day that the Anchorage Daily News first report about the nature and extent of those transactions came out. Renkes said that he had a build up of over two years of email and an IT tech helped him erase them. Bundy said that the story did not ring true.

Part of the reason Bundy made his decision that $120,000 was not significant was an AG opinion from 1989 that 1% of a corporation was a 'significant' interest share. That corporation, however, was a non-transferrable, non-alienable native corporation chartered under the Alaska Native Claims Settlement Act (long story, but suffice it to say that non-natives cannot own any shares. these are very specialized corporations). Because Bundy deemed Renkes' shares insignificant, he found that Renkes had erred by not seeking ethical advice, but Renkes own actions were not unethical as defined by state law. This decision was reported about two and a half weeks ago.

Sarah Palin, a rising star in the Alaska Republican Party, and Eric Croft, a noteworthy Democratic state politician, filed a state personnel complaint, which is still being investigated. After Bundy's decision, there was a great deal of public outcry against Renkes and he decided to step down. He cited the 'vicious politics of personal destruction' as part of his reason. I find it interesting that he plagiarized a Democratic politician, Bill Clinton, in his resignation letter. Given the heat that was being generated, this was probably a wise maneuver by Renkes. It will most likely deflect the majority of criticism away from the Governor. Scott Nordstrand will fill in until a permanent replacement can be named.

Court Opinions February 4, 2005

The Court of Appeals issued one decision last week, Sergie v. State. Mr. Sergie was charged with attempted sex assault on his wife and he was convicted. He raised three issues on appeal. The first was sufficiency of evidence, which I do not really need tell you how it worked out.

The second issue concerns jury instructions. Under Alaska law, the mens rea of knowingly applies to conduct and recklessly applies to circumstances unless otherwise specified. Another, more specific mens rea is not specified for sex assault in the first degree (rape). To be convicted, a state has to show that a defendant committed sexual penetration upon another person without the consent of that person. Applying the mens rea means that a person has to knowingly commit sexual penetration (meaning that (s)he knows that (s)he's putting something into an orifice) with reckless disregard that the other person does not consent. Reckless is a conscious disregard of a substantial and unjustifiable risk.

Mr. Sergie, at the time of the alleged incident, was extremely intoxicated. Since the charge was attempted sex assault, the State had to prove that he acted with a specific intent. His trial attorney (which in all modesty I must admit was me) wanted to argue that the mens rea, intentionally, applied to all elements. In other words, that he intended to commit sexual penetration (so far so good) and also intended that the penetration be against the consent of the complainant (not so fast, son). The Court of Appeals rejected this argument, holding that while intentionally might apply at least to the conduct, it did not apply to the consent (or lack thereof). So, for attempted sex assault, the State has to demonstrate reckless disregard to the lack of consent. Intentionally applies only to the penetration. Thus, the trial court's refusal to give an instruction that Mr. Sergie had to intend that his attempted sexual penetration be nonconsesual was correct.

Last, Mr. Sergie argued that the court should have appointed another attorney rather than his public defender (me). The opinion notes that his attorney went to Anchorage twice from Dillingham but Mr. Sergie refused to meet him and that Mr. Sergie refused to talk to him. The court noted that an indigent defendant does not have the right to choose his/her appointed counsel. The trial court did not abuse its discretion in refusing to grant new counsel in the case. So, Mr. Sergie's conviction was affirmed.