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.
