Alaskablawg

Innocence Before the Supreme Court

I haven't blogged recently because I've been absolutely swamped, but I wanted to take a brief moment to talk about a case coming up before the US Supreme Court on Monday. The case is District Attorney's Office for the Third Judicial District, et al. v. Osborne.

William Osborne was convicted of a sex assault in 1997. The best DNA tests available at the time showed he was among the 16% of the African-American population who could have left the semen. He has proclaimed his innocence. The case was proceeding in a state post-conviction petition when Osborne filed a §1983 action seeking further testing of the DNA. The State objected. The Innocence Project has been representing Osborne in federal court (more about that in a minute). They have offered to pay for the testing. Let me repeat that: the Innocence Project has offered to pay any costs to re-test the DNA with subsequent procedures to see if the DNA excludes Mr. Osborne. The State freely acknowledges that the testing would conclusively demonstrate whether he is guilty or innocent, but they will not release the evidence for subsequent testing. Robert Morgenthau, District Attorney for Manhattan since 1975, has an interesting take on the case. Essentially, while thinking that Mr. Osborne looks guilty, he does not think much of Alaska's District Attorney's Office.

There is certainly no reason for the State's refusal to provide the sample. A relatively quick test that would be paid for by another party means that the State is not inconvenienced and we can settle clearly Osborne's guilt or innocence. Yet Alaska obstinately refuses to turn it over.

Part of the reason that I post this is that this issue was raised by a good friend of mine, Randall Cavanaugh. He has been handling Mr. Osborne's state post-conviction relief petition since its inception. He brought in the Innocence Project for help with the §1983 action. While he's not arguing the case before the US Supreme Court, and while Peter Neufeld and the Innocence Project will get the lion's share of the press, it was Randall's diligence from the start that put this case in its current position. Randall is headed to DC to watch the oral argument. As an Alaskan, as a defense attorney, and most importantly as Randall's friend, I wish him well on Monday.

Alaska and the Death Penalty

We in Alaska are fortunate to not have the death penalty. We have not had it for about 50 years. I am glad we don't have it. While that may seem obvious as a defense attorney, I can say that I grew up a strong believer in it. However, day after day working in the criminal justice system has shown me what a lot of people already know: there are a great many problems with the death penalty.

Now, though, Alaska appears to be re-opening the debate. This year, a legislator has introduced a bill to allow the death penalty for certain crimes.

I understand on a gut level the idea that someone should have to pay for certain crimes with their life. However, that argument is essentially an emotional, instinctual, retributive reaction. Aristotle said that law was reason without passion, yet can anyone imagine circumstances in which passions are inflamed more than in the decision to seek death?

The problems with the death penalty are legion: it is applied disproportionately upon the poor and minorities; it has no deterrent effect; police and prosecutors do not always play by the rules; mistakes have pointed to innocent people being convicted of crimes; it is prohibitively expensive, etc. A great resource for those interested in this subject is Gerber and johnson's book The Top Ten Death Penalty Myths. In this book, the authors go point by point through the arguments in favor of the death penalty and show how truly flawed it is.

I would also point to the dissent of Justice Diaz in a recent Mississippi post-conviction petition in a death penalty case. It begins at paragraph 48 for those who are interested. Justice Diaz's dissent should be required reading for those who support the death penalty.

I have some optimism that this bill will not be enacted. There is actually a fair amount of resistance to the death penalty among a number of legislators and even in our own Department of Law. While I would like to think that our legislators will examine the issue 'without passion' and decide that the errors, the irrational disparities in application, and other well known problems are sufficient for Alaska to reject implementing the death penalty. But I think that it is more likely that legislators will see the bill. And when they see the price of Alaska oil, they may decide that they just cannot afford it.

New Year's Eve

Had a great time on New Year's Eve last night. New Year's Eve in Alaska generally means two things: cold temperatures and fireworks. On July 4, it is usually too light to see fireworks, although some people whoot them off around 1:30 or 2:00 or so. So we usually wind up setting them off on New Year's Eve.

The sky is clear and the rockets reflect off the snow. And this year did not disappoint. It was about -25º. We set off a lot of mortars and multi-shots. After a while, my fingers did not want to work as well. We only had one potential mishap: One of the mortars was stuck in the tube and it exploded in the tube. Fortunately, the tube held and there were no injuries, although old frostbite injuries were re-frozen.

There are a lot of places throughout south central Alaska that prohibit the possession or use of fireworks. If I'm correct, much of this comes from a large fire about 10+ years ago. While the fire had nothing to do with fireworks, people were concerned that fireworks could start another fire. That may make sense in, say, June or July, which are typically dryer months. In case nobody noticed, though, December and January are usually a) cold, and b) snow-covered. We've gotten a lot of snow this year, which makes for some great sledding and other winter fun. It also would seem to make it really hard for fireworks to start a fire.

Based on that, the rules have been officially relaxed in the Valley for some time. Even before that, though, setting off fireworks on New Year's was an offense that was extremely unlikely to get a ticket. Most of the time, cops either turned a blind eye or they were keeping an eye out for potentially intoxicated drivers.

So we had a good fireworks celebration and everyone involved woke up this morning with the same number of fingers as they had yesterday. Good food. Good drinks. Good friends. Good fireworks. Great way to start a New Year.

Appendicitis

I'm blogging this from my hospital room where I have been since Saturday night. I developed appendicitis late last week and had emergency surgery Saturday night. Surgery went well, although recovery is a bit slower than usual because a) it was not done laproscopically for some very good reasons, and b) docs are watching to make sure that it had not leaked before removal. Won't bore you with all of the details, but I will say that morphine is truly wonderful. The ability to end such pain makes a difference in the quality of life that cannot really be described.

On another note, an occurrence like this is a much bigger deal when you're on your own than if you are in a group or firm. From a business perspective, this will definitely lower income and having to change a previously set court calendar while lying in a drug-induced haze in a hospital bed is not fun.

I will say that so far, judges, opposing counsel and clients have been understanding and sympathetic. The lawyers with whom I share space have also been kind enough to help me re-arrange my schedule. And my secretary's assistance has been invaluable. Thank you so much for your support. In the meantime, I am doing what I can to improve and be back as quickly as possible.

Congrats Steve

I just wanted to say a quick 'Congrats' to my friend Steve Hubacek. He won the Alaska State Fair giant cabbage weigh off with an 87.7 pound cabbage. He looks pretty happy:

Sonya Ivanoff Bill

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.

December 31, 2002

This is a long post, but the post below made this a good reason to blog about this.

The post below involves a post by Kevin Ramey, aka Birdman, on his myspace webpage. What I really remember Kevin for is not really Kevin, but his brother Ron. You see, Ron died in my backyard on December 31, 2002.

To fully understand, I need to set some background. At the time, I was the public defender in Dillingham, Alaska, about 350 miles westsouthwest of Anchorage. I lived about 20 miles north of town in a village named Aleknagik. It sat on the shores of Lake Aleknagik, the southernmost lake in the Wood-Tikchik park. (Check out the map - it will help make more sense of this story.) Aleknagik is, for now, split into two parts, north shore and south shore. The north shore part of town is on the north shore of the lake. You should be able to figure out where the south shore part of the town is. We lived in a house on the lake on the south shore. It's just above the asterisk on the map linked above.

Because of where we lived, people would frequently come by our house when crossing from the north shore to the south shore. We travelled across the lake via snowmachine in the winter and boat in the summer. The narrrow point between the north and south shore right by our house rarely froze because that area was comparatively shallow and the water was fast moving. As such, it was generally open year round and some people could cross via boat even in cold times of the year.

Some of this story we pieced together later, but early in the morning of December 31, 2002, around 1:00 or so, we heard a truck pull up by our house and sit there for several minutes. The truck then left. It turns out that a friend of ours from across the lake, Jim Caston, had tried to cross the lake in a canoe with a couple of friends, Chris Cooper (who had been a client of mine a couple of times) and Ron Ramey (who had not been a client of mine). Ron Ramey is the brother of Kevin Ramey from the post below. Jim lived directly across the lake and we could see his house from ours. He had been at the house of his sister's and her husband. Chris and Ron had stopped by to see him. They were fairly inebriated and announced that they were going to canoe across the lake. Jim, who was pretty much sober, said he would row the canoe since they were intoxicated. John Scott, Jim's brother-in-law, drove them to our house where they could launch the canoe. Ron's excess movement tipped the canoe and they went into the water by the shore.

Now, it had been fairly chilly for the past couple of weeks. The temperature was roughly 10 - 15 below Farenheit. If you look on the map, you see that a little bit east of the narrowing of Aleknagik is a small bay. That bay would rarely freeze over completely because it too was shallow. Nonetheless, at that time of year, the ice extended roughly 75 - 100 feet into the bay. The owner of the house where we lived would frequently park a barge along the shore there to keep it available for the spring barging season and this winter, a barge was included in the ice. Also on our property was a small shed where the barging company of the property owner would store some equipment.

In temperatures that cold, Jim rounded up Chris and Ron and they went back to his brother-in-law's house to dry out and get warm. They warmed up a bit and Chris announced he and Ron were going to cross that night. They were told this was a bad idea. Chris said, "What are you going to do - lock the canoe?" So, they went back and got in the canoe. John sat in the car and watched them cross. Jim's wife, Darilyn, was watching from the north shore.

Christina and I heard the truck come back and sit by the house idling for a while. Then the phone rang. Once. I had been lying there listening and when that phone rang, my heart skipped a beat. I opened one eye and looked at Christina. She was looking at me. A few seconds later, the phone rang again. Christina got it (it was on her side of the bed) and she told me that Jim needed some help. She told me to get dressed and go help him. So, I grabbed my fleece-lined jeans and a flannel shirt and went downstairs to get my bunny boots. As I'm putting them on, I can see John walking up to the house. He walks into the house and says, "Jim just went into the damn lake."

If you are reading this in warm comfort from some place like Arizona or Florida, you have no way of knowing what that statement meant. It sounds dramatic, but it's true - Jim was a dead man. I threw on my boots and coat and stepped outside.

Have you ever noticed that on clear, cold nights, sound travels very, very well? It did that night. I did not ever hear Ron, but I could hear Jim and Chris. They were yelling for help. That does not really cover it, though. Jim kept saying, "Oh my God. It hurts. It's so fucking cold. Get your ass out here. Get out here right fucking now. Do you know I'm dying. I'm dying goddammit!" Chris was yelling, "Get out here! We need help. Come on! Oh God it hurts. Where are you?"

John and I ran down to the point, the place where the distance between the north and south shores was the shortest. People would often leave boats here and there was a short skiff with a kicker (outboard motor) on it. Between this skiff and the water, though, was a small ridge of gravel left over from barge work in the summer. At that temperature, it was solid as concrete and we needed to move the kicker over that ridge. The kicker was encased in ice - it wasn't starting until spring. But we could see an oar handle and we figured we could get to those guys and try to get them in the boat. Before we put the boat in the water, I looked at John and said, "We're going to do what we can to get Jim and Chris, but we are not going to endanger our lives. If we cannot save them and return safely, we're not going to do it." John, who had been an MP, paused for a second and nodded grimly. He climbed into the boat and I got ready to push off.

"Wait! There's no oars in this boat!" John yelled at me. I looked at him quizzically because I had seen the handle. He held it up so I could see that the blade had been broken off the oar. "The goddamn oar is broken!" he sobbed. I paused a second as the impact of that news hit me. Jim and Chris were continuing to yell, although Chris was getting fainter because he was drifting away. I told John there was no point in going in that boat. With no oar, there was no way to steer and the current would take us away from Jim, who seemed to be in one place. I remember thinking quite clearly that Jim was going to die and I was going to listen to him.

We pulled the boat onto the shore and I told John to go into the house to see if Christina had reached the VPSO (what passes for a cop in rural Alaska - long story). I was going to try to find an oar in the shed. At that time, a snowmachine pulled up with two of John's teenage boys on it. Darilyn, Jim's wife, had called to John's house and they were coming to help. We found out that Darilyn had also called the VPSO. We sent them to the end of the barge to keep talking to Jim and Chris (if he could hear) and I went to the shed to get an oar. While I was in the shed, I heard a boat motor running and the VPSO (he kept his motor ready for accidents) came up to the point to pick up John. I left the shed and went to the end of the barge with John's boys. Jim had kept up his tirade. It turns out that he had borrowed some gloves that were a little bit too small for him and so he was not able to get them off. When the canoe tipped over, he kicked off his shoes and swam for shore. When he put his hands on the ice, the gloves instantly froze, preventing him from slipping under the ice.

I could see the VPSO and John reach Jim. They yelled, "We got him" and started to head for shore. The boat was crooked and I did not know what had happened, but I got the boys to bring the snowmachine down to the point. The boat pulled up and Jim was still in the water with John holding his head out of the water. John and I and his boys grabbed Jim (he was no small guy - about 250 normally; figure about 300 pounds with the water-logged clothes he was wearing) when he was in about 1 - 1 1/2 feet of water and dragged him to the snowmachine.

Jim started to slip into delirium - he started rambling and mumbling. He had been in the water about 10 - 15 minutes. He kept saying, "Tell my wife I love her." He talked about how pretty the stars were against the night sky. He talked about how he liked our house. He talked about how he wanted to fish off the point again. He talked about all sort of stuff. This is a sign that the hypothermia was worsening. Once hypothermia starts progressing, it goes fairly fast so we needed to get him warmed up.

We got him up to our house, about 20 yards away. To give you an idea of how cold it was, the bottom of my pants was covered with ice from being soaked with water and then freezing in the cold. The VPSO and John went off to look for Chris. Other people from town started patrolling and searching on their snowmachines as well. We got Jim into the kitchen, where Christina was on the phone to the hospital. She is a nurse and she worked at the hospital so she knew the doctors out there. We stripped Jim and dried him off. He kept going in and out of conciousness. Every time he started to go to sleep, we would try to wake him by talking to him. Several times, I had to slap him and yell at him. I usually yelled, "Dammit, Jim! You are not going to die in my kitchen!" I must confess that when I entered college, that was a phrase I never thought I would utter in my adult life.

We ultimately put him in front of the Toyo stove and covered him with many blankets, watching over him as he warmed up. It took almost 3 hours, but Jim pulled through. He did have a giant spot of frostbite on his heel. When the VPSO and John got to him, they tried to roll him in the boat. He was too heavy to get into the boat. As I mentioned earlier, he had kicked off his shoes. In trying to roll him into the boat, his foot hit the gunwale of the boat. It instantly froze to the side of the boat. He had a frostbitten area of about 2" wide on his heel where it hit the side of the boat. Ultimately, they pulled him off the ice and John just held him with his head out of the water and they drove the boat, slowly, over to the point with Jim still in the water, head and foot (frozen to the side of the boat) out of the water.

As for Ron, we never found him. He caused the canoe to turn over. They were about 1/2 of the way across when Chris remarked that the canoe was tilted. Jim started to say, "Don't move" but Ron, sitting on the floor of the canoe, shifted his weight. It tipped the canoe and he went right over. He sank and was never found. Chris Cooper found the canoe, floating upside down and got on top of it. He drifted with the current to eventually land on the south shore, a few hundred yards east of my house. From the tracks in the snow, it was determined that he got off the canoe and rested for a few minutes under a tree. He then began crawling toward the lights of my house. He was found a few hundred yards away, frozen in mid-crawl. He had already started to shed his clothes (those suffering from hypothermia will, in the last stages, think that they are hot and start shedding clothes. If searching for a person in conditions ripe for hypothermia, follow the clothes and you will usually find a body). His eyes were eerily open, staring at the goal he would never make.

The New Year's Eve celebration later that night was subdued. No fireworks. Everybody went to bed early. Nobody really talked about what happened, but just stared into New Year's drinks. We ultimately had some mental health counsellors come out and provide some counseling/therapy for those who were involved. John and Jim moved back Outside. I left Dillingham for the Mat-Su Valley.

Bush life is hard. There is no margin for error. A stupid mistake that causes embarrassment or discomfiture Outside will kill up here. Ron and Chris found out the hard way. As for me, well, maybe its superstition, maybe its an irrational fear, or maybe its my way of making peace with that night, but I've not gotten into a canoe since then. And I don't plan on it.

The Birdman

From Skelly comes this link from an old client of mine. (Note: everything in this post is contained in public records.) I represented Mr. Ramey once while in Dillingham. No big case - DUI on a snowmachine. Alaska is unusual in that one can be charged and convicted of DUI even if operating a vehicle off of public roads. That sort of makes sense, but I think there should be some exception for being in remote areas. Large parts of this state are inaccessible by road and people get around by snowmachine, 4-wheeler or boat. I would say that probably 1/2 - 2/3 of the DUI cases that I handled while in Dillingham occurred when the person was operating something other than an automobile.

Anyway, Birdman was charged with driving a snowmachine across the tundra while intoxicated. We seemed to get along fairly well. He did not ask to discharge me on the record and he seemed a fairly reasonable person. His address is listed as Togiak, so I guess he's moved out of Dillingham. Don't know why he's dealing with a case in Kotzebue (Pronounced "Kot - zuh - bew"), but I'm glad to see he's doing well.

Alaska politics - gas pipeline

We booted Frank Murkowski (notice that the first part of his last name is Murk) out of the governor's house this year. It's a pretty tight race between Sarah Palin and Tony Knowles. One of the big issues is who can help bring about an Alaska Gas Pipeline. This is a pipeline that, much like the current oil pipeline, would bring natural gas to market.

There are two major routes being considered: an "all-Alaska" pipeline, and the Canada pipeline. The all-Alaska pipeline would create a gas pipeline that follows the oil pipeline from Prudhoe Bay (the northern part of the state - check out this map) to the shipping terminal in Valdez. The gas would be liquified and sent via ship to ports on the West Coast and the Far East. The Canada pipeline, though, would go through Canada (hence the name - brilliant, right?) and connect to gas production plants (refineries? I don't know what you call them - I'm not a real reporter) that already exist in the Midwest.

Before announcing her candidacy, Palin had really championed the all-Alaska pipeline, which a lot of Alaskans want in short-sighted statehood pride. Just about all Alaskans want the pipeline built because the vast majority of our revenue comes from oil and gas leases, taxes, etc. Further, the Permanent Fund Dividend would increase based upon the new revenues from gas taxes, etc.

However, if I understand correctly (and that's a big if - part of the reason I do this type of law is that I find oil and gas law extremely BORING), PFDs and state income are based upon profits from the oil and gas leases. Profits are what is left over after expenses are paid. With an all-Alaska pipeline, part of those expenses would be maintaining the Valdez terminal and shipping to various ports. Those expenses would not exist under the Canadian option. The all-Alaska pipeline would thus diminish PFD and oil/gas lease revenues. This might be the reason that Palin has since backed away from her commitment to the all-Alaska pipeline and declared that she will examine all options. Knowles has never committed to one particular view, but rather wanted to make sure that whatever happens, Alaska's interests are protected.

As far as practical realities, if a pipeline is actually established, it will be a giant boon for this state. That will lead to a further population increase, which I'm not particularly wild about. But, an influx of thousands of people with lots of money who are isolated from the real world for weeks or months at a stretch? I cannot imagine that the pipeline would be anything but a guarantee of substantial work in all sorts of legal fields, mine in particular.

Snowfall

Today was the first snowfall of the winter. I don't know that it will stay, but we will probably have snow on the ground for the winter within the next couple of weeks. I can't promise, but I will try to get pictures. I'm already seeing more moose around the roads, and sunrise is getting later and later. Its winter in Alaska!