Alaskablawg

Jury Selection

After five court days (we had last Tuesday off), we got a jury in our trial.  Openings are tomorrow and the case is expected to last through around Thanksgiving, depending on breaks, witness availability, etc. 

Up here in Kotzebue, the  temperatures have been fairly balmy - in the mid-20s for a high or so.   There is snow on the ground and we can watch the Chukchi Sea gradually freezing up.  Last week, while at dinner at a local restaurant, we watched seals play amidst the drifting ice chunks. 

Posting will be light so I won't have time to discuss other legal-related events.  In the meantime, I continue working.

Blawg Review

It looks like I made Blawg Review for the Fish Porn site, below. It was listed under Humor, which is interesting because it was not really a particularly funny post, but hey, I'll take it. I would like to think that it was the superior writing that got me on Blawg Review, but really, I think that nobody outside of this state can believe that trout come so big. Either that or they really don't know what Alaska men find pornographic.

This is a state where, particularly outside the major urban areas (Anchorage, Juneau, Mat-Su and Fairbanks) men really outnumber women. One woman was told that she should go to Alaska to find a partner because the odds were good and she replied, "Yes, but the goods are odd." Considering what Alaska men find to be pornographic, that's definitely true. I don't know what that says about me, so I think I will just end this post.

Court Opinions

There were three court opinions issued by the Court of Appeals last week. The first, Greist v. State, deals with Blakely, again. The Alaska Court of Appeals has had a slew of cases recently dealing with Blakely. In this one, they decided that since Blakely excludes prior criminal conduct from what which must be submitted to the jury, the aggravator of a prior juvenile record that would count as a felony falls under this exception. This is just a reiteration of Edmonds v. State (filed July 29, 2005 and is likewise a reported decision).

Again dealing with Blakely, the Court of Appeals decided Simon v. State. In Simon, the defendant pled to a reduced sex assault charge and agreed to a sentence of a third offender, 3 - 5 years in this case. The court gave him 5 years to serve, nothing suspended. Alaska courts cannot give someone the maximum punishment unless they are a 'worst offender'. Siimon argued that whether he was a worst offender should have gone to the jury. COA disagrees, saying that he had specifically waived any Blakely argument (his plea came 6 weeks after Blakely); he had anticipated the possibility of his being sentenced to 5 years to serve. If his attorney had argued about Blakely, the deal could have been pulled off the table. Also, he had to concede some aggravators as part of the plea. Those would have made him a 'worst offender' and justified the 5 year sentence.

The last case is a lot more interesting. In State v. Gonzalez, Mr. Gonzalez was suspected of sexually abusing a young child in 1992. The State conducted an investigation and Mr. Gonzalez left Alaska, heading to Florida. He returned in 2002. In the interim, the State lost several pieces of evidence, such as tape recordings of witnesses, etc. When the State discovered he had returned, they filed charges based on the 1992 charges. Gonzalez argued that the charged should be dismissed for pre-indictment delay. Trial court agreed and the State appealed.

This case is important for a couple of reasons. First, motions to dismiss are reviewed on an abuse of discretion standard. Second, the mere passage of time and resulting loss of memory is insufficient to give cause for dismissal under Alaska law. This is because the loss of memory benefits the defendant just as much as the State. As such, the defendant has to show actual prejudice. In this case, he showed that several interviews that were potentially exculpatory were lost. Since the trial court did not abuse its discretion, the motion to dismiss was granted. This is a case involving good facts and also a good review of the law regarding pre-indictment delay in Alaska. Mark this case. It is a good win for Dan Lowery of the Public Defender Agency.

Client interviews

I work for an alternate defender Agency, the Office of Pubic Advocacy, but we maintain a good relationship with the PDA. There is a new PD, a recent law school grad, who had a rather interesting client meeting somewhat recently (He told about this story at the PD conference so it is public knowledge at this point).

He has a misdemeanor slot, handling 10 - 25 misdemeanor cases per week, roughly. And sometimes, clients can be hard to reach. Generally in the local court, trial calls are held on Friday. So every Friday, he goes to court and goes over the cases that are ready for trial to figure out which ones will go to trial on Monday.

So one Thursday, he stops in a neighborhood bar to grab a brew and sees a very attractive young woman. He sits next to her and they start up a conversation and he buys her a drink. She seems to be an interesting person and interested in him and he is thinking that the evening is going well when she announces she has to leave because she has to get up early the next morning. She says she has to go to court in local court.

Our intrepid PD hero wonders a bit about this and asks her who her attorney is, and she mentions his name! He asks her name and sure enough, her name is on his court list. His stomach sinks rather rapidly when he realizes that she is facing trial for minor consuming alcohol charges. He also realizes that if she checks her voice mail on her cell phone, there is a message to call him about the impending court case. There is another message saying she hasn't called him and that she needs to be in court early Friday morning. He quietly agrees that she should go to court and he leaves quite quickly. The next day he checks his file and is relieved to learn that she is in fact over 21 at the time this happened. To be on the safe side, he asked that the case be transferred to another attorney. That request was granted. To my knowledge, they did not start dating.

Legal Hurricanes

Timothy Lynch, of the Cato Institute, writes about the 4th Circuit's recent Padilla decision. This decision is a dangerous precedent allowing courts to take away private citizens' rights to due process in situations involving military personnel. While this may be sensible in some circumstances, what is troubling is Bush's continuing expansion of military powers.

For example, Glen Reynolds, over at Instapundit, writes about how Bush has been addressing the avian flu issue. If you are keeping up with the issue (and you will start keeping up with it if you read "The Great Influenza: The Epic Story of the Deadliest Plague In History" (John M. Barry), which even Bush mentioned), it is very concerning that while Bush appears to be aware of what is happening regarding avian flu, he is ready to expand the military's role in disaster planning.

This is all the more concerning when one begins to realize the implications of Harriet Miers' nomination to the Supreme Court. Of all of the analysis, I think the two best articles belong to William Stuntz and to Randy Barnett (which should be no surprise to long-time readers of this blawg, since I think Barnett should be on the Supreme Court). I think that the 1-2 combination of Roberts and Miers shows Bush is more interested in having his War on Terror upheld in the Supreme Court than anything else. And that is a very frightening prospect.

Apparently, I'm not the only one. Jim Lindgren, over at Volokh, which is hardly a bastion of left-wing thought, agrees. George Will, echoing William Stuntz, also condemns Bush for this pick. I'm no fan of Will, but I think it's significant that his analysis is so close to Stuntz.

Stuntz and Barnett address the same problem from different angles. Stuntz argues that Bush is a decision-maker, not a contemplator. As such, he makes his decisions quickly and then implements them. He's decided how he wants to win the War on Terror and all that remains is to put it into action. Barnett points out that this pick is pure cronyism: Bush is rewarding a friend. Bush's thinking is, "Hey, I know her. She will do a good job." By "good job", he means that she agrees with Bush in how to fight the War on Terror.

Considering how goal-oriented Bush is, it is not a surprise to see him push the War on Terror so hard. I think just about everybody wants a President that will protect this country from foreign invasion, but the legacy that Bush will leave behind is a series of precedents that will erode what little is left of the Fourth Amendment. Decisions like Padilla an ominous beginning.

Fish Porn (or, what I did on my Alaska vacation)

I have not posted in a really long time (see comments in the 'Ecto' post below) for a couple of reasons. First, I've got a huge case coming up in just under 2 weeks. It's a very high profile murder case. Given how small this state is, I'm not going to give any details, but I have been just crazy busy having to deal with that on top of preparing for this trial. I also spent several days fishing. Now, you might wonder why I would go fishing with such an important trial pending.

I have been planning this trip for some time, since January, to be precise. I got this case in March after this trip was already set. I had asked to set the case in January, 2006, given my absence in September. The court denied that motion, saying that it did not want to try the case in January next year because it had been tried in January this year. Well, I was still going on my fishing trip. With that in mind, let me share a few photos and some commenary.

I will starte this picture of my fishing partner (my dad) and the guide, fishing in the river set against some of the foothills in the Becharoff National Wildlife Refuge:

But you are probably wondering why I would entitle this posting 'Fish Porn'. Well, I figure that the following pictures will, if you fish, particularly if you fly fish, only make you lust. Consider this nice Arctic Char caught at the Ugashik Narrows:

Or how about this nice rainbow trout (Yes, that is a rainbow trout):

Or maybe this particular trout (different than the one above):

Anyway, I spent several days fishing. All fish (except one Dolly Varden char, not pictured here) were released. The two rainbows pictured above were over 30". In a surprising way, it did help me prepare for trial because I was able to relax and do something I've wanted to do for a long time: go fly fishing on the Naknek in September. Next year at this time I hope to have good pictures of a giant brown bear for the wall and a moose for the freezer (although I wouldn't mind a nice rack on the moose).

I was not fishing the whole time, but that explains a few days. Otherwise, I have been preparing for trial or attending the public defender agency annual conference. I think that discretion is the better part of valor when it comes to discussing PD conferences so I will just let that one go. But I did go to 2 days of really good lectures on DNA evidence and forensic pathology.

Bail in Alaska

There was also recently a very important 9th Circuit decision, United States v. Scott. Mr. Scott was arrested for drug charges in California. He was granted bail and as part of his release, the court required that he submit to urine test to show he was not using drugs. Someone came to his house to test him and he turned up positive for meth. So, they arrest him and search his house, finding a shotgun. He had a prior felony so he is charged in federal court as a felon in possession. 9th Circuit holds that you can't condition somebody's release upon waiving their 4th amendment rights. There is a big difference between pre-trial and post-trial release, i.e., parole or probation, because post-trial release involves somebody who's already been convicted. The 9th Circuit Blog, in a post by Steve Kalar, a friend of mine, has a good rundown of the decision here.

This case is huge for Alaska. There are only a few communities that really have any sort of bonding agencies that cover them: Anchorage, Fairbanks, and Juneau. Kenai and Palmer get some coverage out of Anchorage, and while those areas cover a great deal of the population, there are realistically no bail agencies out of Barrow, Nome, Kotzebue, Bethel, Dillingham, Unalaska or Kodiak. Imagine a $1500 bail. No bail agency's going to take only $150 to cover a bail like that when they would have to spend a minimum of $350 to go out to the community to recover a bail jumper. So, Alaska courts impose what is known as a 'third party custodian' and also performance bonds. This means that people have a court-ordered babysitter and that they have to follow certain conditions, such as no drinking, etc.

Well, it is going to be really hard to justify those searches after Scott. It's been a while since I've had a bail hearing (most of my clients are charged with various forms of murder. The last bail hearing the court reduced the initial $500,000 bail to $150,000). If my clients could afford that bail, they would not get me as a lawyer. Nonetheless, I would really like to see Alaska lawyers start to challenge these bogus bail conditions with Scott.

This case has some great language about the "special needs" required for a blanket search and general law enforcement needs most emphatically do not qualify as "special needs". Believing that someone is more likely to commit a crime because he has already been charged is 1) erroneous, and 2) not covered under special needs. As such, it's unconstitutional.

Read Kalar's take on it and read the decision. If you're from Alaska, print the decision and give it out to everybody, court, DA, client, court clerk, whoever, at your next bail hearing.

Court Opinions

It's been a while since I've posted (explanation will be posted in a bit) so I thought I would review recent Alaska cases. There's also a very important 9th Circuit case I want to talk about separately. So here they are:

In McDole v. State, Mr. McDole was convicted of theft for unlawfully receiving unemployment benefits. There were two issues in the case. The first dealt with whether he was a first or second felony offender for presumptive purposes. In Alaska, a person has to be off probation for ten years before prior felonies do not count for presumptive purposes. So, if you're convicted of a felony on 1/1/2006 and spend 2 years on probation, a conviction for any crime until 1/1/2018 will mean that you are a second felony offender for presumptive purposes. This means you get a) a higher sentence, and b) a loss of discretionary parole.

McDole was unconditionally discharged from probation in 1991. The state charged him with one aggregate count of felony theft. The thefts started in June, 2000 and went through 2002. McDole argued that since some of the thefts occurred in 2002, after the 10 years was up, he should not be considered a second felony offender for presumptive purposes. Court of Appeals doesn't buy it. The thefts started well before the October, 2001, date when the 10 year period would expire, so he's a second felony offender.

He also argued that the court erred by not sending an uncontested aggravator (history of similar conduct) to the jury. Court finds that this is a procedural error that was not disputed and so its analyzed under plain error (see Milligrock v. State, 118 P.3d 11 (Alaska App. 2005), applying plain error to undisputed aggravators). So, no relief for Mr. McDole under Blakely.

Next is Grossman v. State. Mr. Grossman was convicted of second degree murder for beating a fellow to death. He was sentenced to 99 years imprisonment. Grossman argued that the instructions regarding accomplice liability were flawed. Accomplice liability is a little complicated in Alaska. In order to convict someone as an accomplice, they must aid another in committing the crime "with the intent to promote or facilitate the commission of the offense." This means that the person convicted as an accomplice must have acted with the same mens rea as the principal. Under the murder 2 theory here, the state had to prove that Grossman intended to cause serious physical injury (and actually caused death) or he behaved with "extreme indifference to the value of human life".

Grossman's argument is that in the main case on this point, Riley v. State, 60 P.3d 204 (Alaska App. 2002)(ed. - essential reading for a study of accomplice liability), the Court had discussed conduct. He had committed only one act. Thus, according to Grossman, Riley requires more than 1 act and the jury instruction allowed a conviction for only one act. Court of Appeals doesn't agree. They hold that you can be convicted as an accomplice for only one act.

Grossman also argues his sentence was wrong based on Blakely. Problem is, murder 2 has a wide range of possible sentences, including 99 years. No aggravators or mitigators apply in murder sentences (including murder 2), so there was nothing for the court to send to the jury. This is complicated a little by an Alaska case, Page v. State, 657 P.2d 850 (Alaska App. 1983), establishing a 20-30 year benchmark guideline for murder 2 cases. COA holds that a common-law benchmark is not the same thing as a statutorily prescribed sentence. As such, Blakely doesn't apply.