Alaskablawg

Bad Case Law

This post is rather incongruous with the previous posts, but it's something I've been ruminating on over the past few weeks. I was talking with a friend who had won some trial motions and the State was considering appealing those motions. One consideration for the State is whether the appeal would make bad law for them, which would obviously be good case law for the defense bar.

I have not really dealt with appeals a great deal in my career, focusing more on trials, but it seems that when it comes to appeals, the DAs have in one sense a big advantage over the defense. You might be thinking that I'm really smoking something because they obviously cannot appeal an acquittal, but that's not what I'm talking about.

Take a drug case where the court grants the defense motion to suppress. If the decision is a close one, the State may well decide to not appeal to prevent a court of appeals decision that limits police authority to conduct a search. Defense appeals, though, are ethically made in a vacuum. If I have a case where the court denies my motion to suppress, I have to do what the client wants and I cannot consider whether this decision will give the police more authority in the future. I do not think that too many clients would take it too well if I told them that they should just suck up the trial court's ruling because their case would make bad case law for other defendants. Also, and maybe I'm wrong, but despite de novo review, I think judges give other judges a great deal of latitude (I know - big surprise).

So what does this mean? This means that the State winds up appealing cases where they think that the trial court was so clearly wrong that the decision will be reversed or when the case means so much to them that they are willing to take a chance. On the flip side, it means that the defense winds up appealing a lot of cases that will make bad law for the defense. The net effect of this is to create a structural bias in the law in favor of the State. Forget judicial philosophy, although that figures into it to some degree. No, the appellate system is designed to strengthen the position of the State.

There is, I think, a potential remedy. I know that Howard Bashman would not like the answer, but I think it should apply in criminal cases given the constitutional rights at stake. I think that a defense lawyer should be able to designate whether a decision should be published or not. This would protect the client's right to appeal but it would also limit potentially bad law by making the decision non-precedent. In a state as small as this one, even unpublished decisions can have a quasi-precedental value in trial courts. But they have no value as precedent in appellate courts. Lawyers could then designate cases for publication when they could be distinguished.

This does not mean, of course, that under this system appellate courts would automatically start making more defense-oriented decisions. What it does do is level the playing field where both sides have the opportunity to consider the possibility of making bad case law rather than just the State having that option.

Alaska Zoo

One thing I did get to do recently was take my two girls to the Alaska Zoo. Now, you might be thinking 'Whoop-de-doo!", but they went as part of a school group on Alaska Day (this is the last Monday in March, representing the time the US bought Alaska from the Russians. It's a state holiday.) and it was a great time. Now I've taken the kids to the zoo before (no Dead Milkmen jokes - these are, after all, my kids), but it's been in the summer. This was the first time in winter and it was really different.

Most of the animals in the Alaska Zoo are injured or orphaned Alaska animals and they were substantially more active than I'd ever seen them. The wolverines and the lynx were out running around while the Dall Sheep were leaping about their enclosures. The brown bears were still hibernating, though. Plus, we got to go in the back of several exhibits, including the polar bear exhibit, and see some of them really, really close. Those polar bears are much bigger than they appear in the Discovery Channel specials. This zoo also has a pair of snow leopards, which were very active in the cooler weather. The one exhibit my daughter Olivia did not like was the caribou exhibit, but she hasn't really liked caribou since one kicked her when she went to the reindeer farm. (We now sing "Olivia got kicked by a reindeer" much to her annoyance.)

So if you are ever up here in the winter, for the Alaska Shootout, some really good skiing or snowboarding, good snowmachine riding, the Iditarod, or maybe the Arctic Man, spend a few hours at the Alaska Zoo. (If you're from Outside and need good winter gear to keep out the cold, check out this site.) You'll do much better than if you see it in the summer.

Paralysis, a.k.a. Avoidance

As you may have noticed, I haven't posted anything in a good long while. Several reasons. First, things have been rather hectic at work as I wind up my tenure in state service. I had three major trials set for April and May so I was asked to stay until those cases were finished. However, they got moved and so we agreed that I would stay through the end of April to ease the caseload transition. Another attorney in my office transferred to another office and her replacement is not going to be here until the beginning of May. An attorney in the Anchorage office had some pregnancy complications that require her to take her maternity leave earlier than expected, so I've gotten several large Anchorage cases. Hopefully I can take some of them with me so I can have a source of income.

On the home front, we have recently had a 15 year old come stay with us. He is the son of some friends and he was having some personality issues with his parents. We agreed he could stay here and while the transition has actually been fairly painless, it has required a fair amount of work. He's a good kid, but our kids are 9, 7 and 2. The older 2 are girls, so it's as if we just skipped 13 years and got a teenager overnight.

Lastly, though, I've been suffering from paralysis or avoidance or something. Maybe it's short-timer's syndrome. Maybe it's burnout. Maybe it's merely procrastination. Whatever it is, I see something that needs to be done and rather than doing it, I fill my time with meaningless activities. While this has happened for short periods of time before this, I've never had a case this bad before in my life. It's kept me from blawgging for a while. But, I'm back now. Hopefully this means that my paralysis is ending. I'm getting rather behind.