NEWS

AKACDL Denounces Willoughby Recall

Posted on July 5, 2018 by akcriminaldefense

The Alaska Association of Criminal Defense Lawyers (“AKACDL”) is a statewide non-profit organization whose goal is “to represent the association before the legislative, executive, and judicial bodies which determine policy for the state and federal governments in a manner that promotes the mission of the association and its objectives and purposes. To preserve, protect, and defend the adversary system of justice and the Alaska and U.S. Constitutions.”

AKACDL is very concerned about Governor Walker’s recent action rescinding a judicial appointment made to a highly qualified attorney on the basis of her advocacy in a single criminal case. After attorney Julie Willoughby was recommended to the Governor to serve as a Juneau Superior Court Judge by the Alaska Judicial Council, Governor Walker called her and told her he had selected her.

Ms. Willoughby’s application for the Juneau Superior Court judgeship went through Alaska’s widely praised constitutional and merit-based process for the selection of judges. She was rated by her peers as the most qualified person applying for the job; the Alaska Judicial Council, which is made up of the Chief Justice of the Alaska Supreme Court, three attorney members and three public members, one of whom is a retired law enforcement officer, recommended Ms. Willoughby and one other applicant to the Governor. Governor Walker interviewed both applicants and then offered Ms. Willoughby the job.

But then, according to a July 2, 2018 article published in the Juneau Empire, an unnamed staff member provided Governor Walker a brief Ms. Willoughby wrote while defending a client in a sex abuse of a minor case. According to Scott Kendall, the Governor’s Chief of Staff, Ms. Willoughby’s brief, filed in the summer of 2015, shocked the Governor’s conscience. Mr. Kendall further accused Ms. Willoughby of “attacking a child victim and misstating statutory rape laws.” Governor Walker then rescinded the appointment of Ms. Willoughby and selected another candidate.

The brief Mr. Kendall referred to is a 44-page memorandum in support of a motion to dismiss for constitutional violations and prosecutorial failure to follow guidelines. Far from attacking the child victim or misstating the law, Ms. Willoughby raised a number of complex constitutional challenges to Alaska’s criminal sentencing statutes as they existed at the time. Ms. Willoughby argued that her client, who was 18 at the time the crimes were allegedly committed in 2013, would likely die in jail should he be convicted of all counts. That outcome, and the manner in which Ms. Willoughby believed the case was being prosecuted, raised due process, cruel and unusual punishment, and equal protection concerns.

The Fourth, Fifth, Sixth and Eight Amendments of the United States Constitution, whose protections are applied to state governments through the Fourteenth Amendment, protect the rights of criminal defendants, including the rights of the clients Ms. Willoughby has well and ably served. And that is what Ms. Willoughby argued in the memo that the Governor took offense to.

Alaska lawyers, including Ms. Willoughby, are bound by the Rules of Professional conduct. The Rules explain that as an advocate, “a lawyer zealously asserts the client’s position under the rules of the adversary system.” According to Alaska Rule of Professional Conduct 1.2(b), “[a] lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.” Read in full and in context, it is challenging to comprehend how Governor Walker (or his staff) conflated Ms. Willoughby’s advocacy of her client’s constitutional rights with an endorsement of child sexual abuse. The Governor’s decision to punish her for this advocacy is contrary to our system for judicial selection.

Governor Walker’s action reveals a lack of recognition for the important role of the defense lawyer in our criminal justice system. More broadly, such action sends a chilling message to any lawyer who might aspire to the bench—be meek in your advocacy and avoid the hard cases or unpopular issues. This cuts to the core of what it should mean to be a lawyer.

Throughout our history, it has been the bravery of lawyers who have taken the hard or unpopular cases that have protected and expanded liberty in this country and especially in Alaska. Lawyers have always been at the forefront of civil rights movements, of curbing governmental excess, and of assuring that the promises of our constitution to due process and equal rights under the law are fulfilled. In Alaska, lawyers have been at the forefront of protecting our rights of privacy against government intrusion. Lawyers are frequently tasked with representing the “undesirable.” If the only judges the Governor will appoint are those who have avoided controversy or watered down their ethical obligations, he will have created a weakened judiciary.

It is the role of the lawyer in such cases to make what may be unpopular arguments. To punish a lawyer for doing so is wrong and denotes a fundamental misunderstanding of the role of the defense lawyer. If lawyers are vilified for accepting unpopular clients, the entire system is damaged. Those who are viewed as unpopular clients are the most likely to face bias and suffer injustice in our imperfect legal system. And it is the honorable role of defense counsel to protect the rights of the unpopular. Under Governor Walker’s short sighted and ill-informed conduct here, if Atticus Finch, the brave lawyer who represented a black man charged with a sex crime in the book To Kill A Mockingbird applied for a judgeship, he would be rejected not based upon his qualifications, but because he had taken on the difficult case.

Our judicial selection process was deliberately created by the founders of the Alaska Constitution to promote a process for selecting judges that avoids political favoritism by requiring the input of the judicial council and its recommendation process. Governor Walker’s conduct here, rejecting the most qualified applicant based upon selected excerpts from a single memorandum she wrote on behalf of an unpopular client, has seriously eroded that process and threatens to impact the quality of our judiciary.

AKACDL donates to Success Inside Out reentry program

Posted on October 13, 2015 by akcriminaldefense

The AKACDL Board of Directors voted September 17, 2015, to donate $500 to the “Success Inside Out” reentry program at Highland Mountain Correctional. The program, including a one-day conference with classes and mentoring sessions, was founded in 2006 by Alaska Supreme Court Justice Dana Fabe and is designed to help inmates nearing the end of their sentences to successfully transition back into the community.

Newly appointed Superior Court Judge Herman Walker noted as AKACDL Founding Member

Posted on July 31, 2015 by akcriminaldefense

On July 24, 2015, Governor Bill Walker announced the appointment of Herman Walker, Jr. to the Anchorage Superior Court bench. Judge Walker is the second ever – and only current – African-American Superior Court Judge in the state. In an article in the Alaska Dispatch News, Judge Walker is noted as having been a Founding Member of the Alaska Association of Criminal Defense Lawyers. (Elsewhere on the AKACDL online News Section look for a complete listing of AKACDL Founders and Founding Members.)

Gov. Walker appoints Herman Walker as Anchorage Superior Court judge

Jerzy Shedlock | July 25, 2015

Alaska Gov. Bill Walker announced Friday his appointment of the second ever — and only current — AfricanAmerican Superior Court judge in the state.

Herman Walker Jr. was appointed to the Anchorage Superior Court and will replace judge Philip Volland, who is retiring at the end of August.

“It is an honor to put forward Herman Walker’s name as Anchorage’s newest Superior Court judge,” Walker said in a prepared statement. “Anchorage is a community that is economically, socially and ethnically diverse, so it seems only fitting to have a judge whose work experience underscores that same sense of diversity.”

Anchorage’s Mountain View neighborhood has been dubbed the most diverse census tract in the U.S., and the city’s public schools lead the nation in diversity.

Herman Walker has lived in Alaska for 23 years and practiced law for 22, according to the governor’s office. For the past 15 years, he worked as a partner at Limón & Walker, where his clients included injured plaintiffs, criminal defendants and corporations.

The incoming judge has also worked for the state’s Office of Public Advocacy and Public Defender Agency. He is credited as one of the founding members of the Alaska Association of Criminal Defense Lawyers.

Outside practicing law, Herman Walker was the former owner of The Body Shop franchise in Anchorage, according to the governor’s office.

He received his education at Arizona State University and the University of Wyoming College of Law.

“After reading the recommendations submitted by his colleagues, it is clear that Herman is highly respected and has a genuine interest in the well-being of others,” Gov. Walker said. “This combination of skill and empathy will make him an outstanding judge and an asset to the Anchorage community.”

Larry Card was the first African American superior court judge in Alaska, appointed by Gov. Wally Hickel and serving from 1993 to 2005, said Gov. Walker’s press secretary Katie Marquette.

Come September, Herman Walker will be one of 42 superior court judges statewide.

The state has relatively few minority attorneys, however. According to a 2013 Alaska Judicial Council report, the latest data available, 94 percent of Alaska Bar members who responded to a survey identified as Caucasians, about the same percentage as six years earlier.

“Just more than 2 percent of bar members were Alaska Native/American Indian. Hispanics and Asian/Pacific Islanders each comprised a little more than 1 percent of the bar membership, and Blacks were less than 1 percent,” the report says.

“The Alaska Supreme Court recognizes the importance of increasing the diversity of Alaska’s bench,” said Mara Rabinowitz, communications counsel for the Alaska Court System. “The Fairness, Diversity, and Equality Committee, chaired by Justice Dana Fabe, has worked for many years to increase diversity within the Bar and on the bench through programs such as Color of Justice and Mentor Jet, where diverse students are introduced to law by judges and attorneys.”

Kotzebue Superior Court Judge Paul Roetman is Hispanic. Recently retired presiding judge of the state’s third judicial district, Sen Tan, identified as Asian American.

And on the Anchorage District Court there are Judge Pamela Washington and Judge Jo-Ann Chung. Judge Washington is the state’s first African American female judge and Jo-Ann Chung is the first Asian American female judge.

Champion of Liberty Award – List of Recipients

Posted on July 8, 2015 by akcriminaldefense

The AKACDL Champion of Liberty Award is presented annually at the All*Stars Conference and recognizes individuals who have demonstrated exceptional dedication to the cause of criminal justice in Alaska. The award originated in 2002 with the Alaska Academy of Trial Lawyers, which at one time included both criminal defense lawyers and civil plaintiffs’ lawyers. AKACDL was created in 2009 to exclusively represent the interests of the Alaska criminal defense bar, and AKACDL has carried on with the tradition of presenting the award ever since.

Awarded to an individual demonstrating exceptional dedication to the cause of criminal justice in Alaska

2002: Jim McComas
2003: Cynthia Strout
2003: Brant McGee
2004: Paul Canarsky
2005: Arthur “Chuck” Robinson
2005: Barbara Brink
2006: Rich Curtner
2007: John Murtagh
2008: Susan Orlansky
2009: Randall Cavanaugh
2011: AKACDL Founders: Rich Curtner, Darrel Gardner, Andrew Lambert, Steve Wells
2012: James Christie
2013: Joy Hobart
2014: Dan Lowery
2014: Julia Moudy
2015: Wally Tetlow
2015: John Bernitz
2016: Andy Pevehouse
2016: Bill Oberly (AKACDL’s first non-member/public service award)
2017: Kevin Fitzgerald
2017: Phil Shanahan
2017: Greg Razo (non-member award)
2018: Ben Muse
2018: Megan Newport (non-member award)
2019: Quinlan Steiner
2020: Greg Parvin (awarded in 2021 due to the pandemic)
2021: Dan Paulson
2021: Kevin Coe (Tenacity Award)
2022: Dina Cale and Tristan Bordon
2022: Shannon Tetlow (non-member award)
2023: Mike Schwaiger
2023: Hannah Thorssin-Bahri, Ariel Toft, Emily Jura (Tenacity Award)

Juneau Empire prints AKACDL’s response to editorial attacking public defender

Posted on April 24, 2015 by akcriminaldefense

In an uncredited editorial piece in January 2015, the Juneau Empire singled out Cara McNamara, an AKACDL member and an Assistant Federal Public Defender. The article criticized Ms. McNamara for arguing that her client should receive a lower sentence for possessing child pornography because there was no evidence that the defendant had engaged in any actual physical abuse of a child. The article described Ms. McNamara’s performance of her professional obligation as “shocking,” saying there was “no gray area” because a “child predator is a child predator. Period.” AKACDL responded to this attack by writing a letter to the Juneau empire. The letter was written by AKACDL Board members Darrel Gardner and Mike Schwaiger, and signed by the president of AKACDL, Cindy Strout. A copy of the letter, as published by the Juneau Empire on April 9, 2015, is available below.

My Turn: Attacking Public Defenders for doing their job is a disservice to all

By CYNTHIA STROUT FOR THE JUNEAU EMPIRE

In January, the Juneau Empire ran an editorial entitled: “No gray area for child predators.” The article comments on the sentencing of a defendant for possessing child pornography. That editorial rejected the longstanding, common-sense notion to “let the punishment fit the crime.” It then went on to personally and unfairly criticize a federal public defender for arguments she made in a sentencing memorandum.

The U.S. Constitution guarantees to the people of this country many freedoms to protect them from government overreach and abuse; none more important than the right to counsel for indigent defendants. We were disappointed to read an editorial that maligned a court-appointed attorney for fulfilling her ethical duties.

In the U.S., judges generally have discretion to impose a sentence within a designated range for each type of crime. That is because our society recognizes that not every violation of the same statute warrants the same punishment. Based on the facts of the particular offense and offender, the punishment is tailored to fit the crime. Comparing and contrasting a defendant’s crime with the crimes of other defendants in similar-type cases is a time-honored method of making sure the sentence is fair and just. Judges are compelled to make these comparisons and contrasts (called “findings”) by law. This is not “smoke and mirrors,” as the editorial described it, but a diligent effort to make sure the specific punishment fits the specific crime.

Criminal cases often involve a “gray area.” The sentence ultimately imposed by a judge depends heavily on the specific facts in each particular case as to the offense and the offender. The job of the prosecutor and the defense lawyer is to argue those facts to the best of their ability on behalf of the government and the defendant. A criminal defense attorney has an ethical duty to advocate for an appropriate sentence by examining both the unique features of the case at hand and the sentences that similarly-situated defendants have received in the past.

The Empire should not need to be reminded that defense attorneys are ethically bound to advocate zealously on behalf on their clients; anything less is malpractice. This is particularly true for public defenders, who have no choice of the persons they represent, no matter how shocking the case or serious the offense.

The Empire’s decision to single out the defense attorney personally by describing the diligent performance of her professional responsibilities as “shocking” is an affront to our constitutional system of justice. Slate magazine wrote: “It is the job of defense attorneys to do the best they can for the clients they have. Anything less — varying the quality of their work according to the caliber of their clients — is malpractice, to say nothing of its corrosive effect on the foundations of our legal system. A world where a lawyer’s reputation is ruined because of who she represented or because of how zealously she did her job is one where the worst of the accused have little recourse.”

As one court stated: “Public defenders stand alone, armed only with their wits, training, and dedication. Inspired by their clients’ hope, faith, and trust, they are the warriors and valkyries of those desperately in need of a champion. Public defenders, by protecting the downtrodden and poor, shield against infringement of our protections, and in reality, protect us all.”

We should respect the dedication that state and federal public defenders show in representing indigent criminal defendants. Their work helps assure that our criminal justice system avoids the temptation to paint every crime with the same brush.

Cynthia Strout is president of the Alaska Association of Criminal Defense Lawyers.

AKACDL’s Founders and Founding Members

Posted on July 28, 2013 by akcriminaldefense

AKACDL was founded in 2009 by four Anchorage defense attorneys, and its growth was greatly assisted by the help of a number of “Founding Members” who made a special $500.00 dues payment during the first year of AKACDL’s existence. Below is a list of the Founders and Founding Members of AKACDL. Thank you!

Founders conceived, planned, and created AKACDL in 2009, and each contributed $500 to start up the association. Founding Members helped to grow the organization in its first year of existence by making a special $500.00 “Founding Membership” dues payment. Founders and Founding Members received a printed “Certificate of Founding Membership” in 2010. The AKACDL logo was created by Tina Adair.

Founders
Darrel Gardner
Rich Curtner
Andrew Lambert
Steve Wells

Founding Members
Samuel McQuery
David Weber
Herman Walker, Jr.
Eric Derleth
James Christie, III
Natasha Norris
Wally Tetlow
Rex Butler
Keri Brady
Rob Herz
Phil Shanahan
Sid Billingslea
Leslie Hiebert
John Murtagh
Ken Covell
Cynthia Strout
Fred Slone
William Walton
Adam Bartlett