Off to Alaska...

[OrlandoRobert]

There are a few good prosecutors left, Patrick, but the profession has changed dramatically during my career. Most of them are younger, with less life experience, and are often prone to abuse of their power. They tend to be very focussed on incarceration, and "winning." They've all watched the TV shows glorifying the tough prosecutors who get the bad guys. At the higher levels, they have become much more politicized. Prosecutors have very dangerous powers, which are often abused. This is all anecdotal, of course, I have numerous friends who are prosecutors. Stephen Dassatti, who has joined our defense team, recently retired from a career in prosecution. We used to have a great district attorney's office here in Androscoggin County, who were very tough on crime but who were not afraid to do what was right in the appropriate cases, replaced now by a younger incarceration-hungry team. There is way too much incarceration in this country, which has impacted the poor and minorities in disproportionate numbers, and the biggest reason for this is ego-driven, "tough on crime" prosecutors.

Very well said on all points. It is scary power indeed.

[Claudius2]

Jim
Is the law in the US vastly different across the states? I mean, big differences in processes and sentencing?
My old country also has quite powerful states that like to fight with the feds and often with each other.

I was going to ask if there is a need to review legal processes including sentences but it hit me that it may be virtually impossible.

[JimHow]

Yes, there are differences between the states, Mark, although the rules overlap by about 90%.
We find Alaska more friendly to the rights of criminal defendants than Maine, reflecting Alaska's more libertarian spirit.
We had to be admitted pro hac vice to the Alaska bar to be allowed to litigate this case, and are required to have a local attorney on board.
For the most part we have found very little difference in practicing between the two states, the rules of evidence and criminal procedure are almost identical.

[Musigny 151]

Timmy, I wasn't aware that case got flipped. Believe it or not, in modern criminal law, that's a "great" result. It is a small minority of these cases that get reversed.

Race is a major factor in the Alaska case, Stuart, the breakdown of Caucasian to Native Alaskan in the Fairbanks area is about 60 to 40. We are expecting jury selection to take a week. One of our problems is my client is this 400+ pound white guy from "the lower 48." He was 18 at the time. The victim, a native Alaskan, was 20 years old, and will forever be.

There are a few good prosecutors left, Patrick, but the profession has changed dramatically during my career. Most of them are younger, with less life experience, and are often prone to abuse of their power. They tend to be very focussed on incarceration, and "winning." They've all watched the TV shows glorifying the tough prosecutors who get the bad guys. At the higher levels, they have become much more politicized. Prosecutors have very dangerous powers, which are often abused. This is all anecdotal, of course, I have numerous friends who are prosecutors. Stephen Dassatti, who has joined our defense team, recently retired from a career in prosecution. We used to have a great district attorney's office here in Androscoggin County, who were very tough on crime but who were not afraid to do what was right in the appropriate cases, replaced now by a younger incarceration-hungry team. There is way too much incarceration in this country, which has impacted the poor and minorities in disproportionate numbers, and the biggest reason for this is ego-driven, "tough on crime" prosecutors.

While I think going ho prosecutors are part of the problem, they only get involved because the system has already been broken.

[JimHow]

From Maine to Alaska: Pretrial Motions in the Sophie Sergie Murder Cold Case

By Jim Howaniec


This is my twelve-day blog from our recent trip to Alaska to litigate pretrial motions in the matter of State of Alaska v. Steven Downs. The case pertains to the 1993 murder of twenty year old Alaska native Sophie Sergie on the campus of the University of Alaska Fairbanks.

Christopher Williams from the Sun Journal has been doing some great reporting on the case. Kathryn Miles from Down East Magazine has written an interesting article which focuses on the unique role that forensic genetic genealogy has played in the case:

https://downeast.com/issues-politics/dn ... %26hl%3Den

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The walk to the courthouse in Fairbanks, Alaska, at 8:00 in the morning, February 2021:

https://www.youtube.com/watch?v=6xFiWU0j3xQ

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Day One: Monday, January 25, 2021

It has been nearly two years since Steven Downs was arrested for the 1993 cold case murder of University of Alaska Fairbanks student Sophie Sergie. The Auburn, Maine, native has spent most of that time at the Fairbanks Correctional Center, a facility that makes the Androscoggin County Jail look like the Ritz Carlton.

The defense team has filed numerous pretrial motions, including eleven that attack the forensic evidence and botched investigation by Alaska State Troopers homicide detectives over the past twenty-eight years. Because of Covid, the hearings on these motions have been continued twice and have been pending for over a year.

After several telephonic conferences with assigned Alaska Superior Court Judge Thomas Temple and the Alaska prosecutor, we decided it was time to proceed on the motions... in the middle of a raging pandemic.

The Maine lawyers on the defense team — Jesse Archer, Stephen Dassatti, and I — all got tested yesterday to comply with Alaska regulations. Jesse got his negative results this morning, mine came in as we were boarding the late afternoon flight from Logan to Seattle. It was not without a little trepidation as I opened the link in my text message from CVS: a positive test meant that I couldn’t enter the state of Alaska and would have to participate by video. Would it make more sense to get off the plane and drive back to Maine? Luckily, the results were negative. We’ll soon be joining the fourth lawyer on the defense team: Fairbanks attorney Frank Spaulding.

We just checked into the airport Hilton here in Seattle. Steve just got his results: Negative. It's on to Fairbanks tomorrow!


Day Two: Tuesday, January 26, 2021

We started the second leg of the trip over breakfast at the airport Hilton in Seattle, downloading (or is it uploading?) our negative Covid test results into the Alaska state travel portal. It is a task that seemingly requires an advanced computer science degree but fortunately Jesse was able to walk us other two old timers through it after about an hour, and it’s off to balmy Fairbanks.

Our first task upon arrival in Fairbanks is to hit the local Office Max store. We are setting up headquarters at the SpringHill Suites across from the courthouse in bleak downtown Fairbanks, and we need a cheap printer. There are 8,000 pages of discovery in this case, plus dozens of audio and video files. There will be numerous exhibits presented, some which were printed up before we left, but most which will be printed in Fairbanks.

We were required to arrive five days early to comply with the court system’s Covid requirements, which is actually kind of a good thing because it gives us five full days to put in 10-12 hours per day of final preparation on the case. Before I left I completely cleared my schedule and told all of my clients that I would be unavailable for two weeks.

We arrived in Fairbanks on a beautiful sunny afternoon flight, minus-20 but no wind, a dry cold, not unpleasant during the brief entry and exit from the taxi. Jimmy, the pleasant young man who screened us through the airport with our negative test results, was very familiar with the Sophie Sergie case and thinks we have our work cut out for us. In fact, he doesn’t see how we are going to get this guy off. He wished us well, though: “You guys must be good lawyers. Welcome to Fairbanks!”


Day Three: Wednesday, January 27, 2021

I started our first full day in Fairbanks with a little 6 a.m. walk in the vicinity of the hotel, minus-19 in the early morning darkness. I actually found it quite pleasant, again, it is a very dry cold, and there has been absolutely no wind. After about ten minutes my face above the mask began to freeze, and I turned back. My L.L. Bean Baxter coat, though, advertised as good for up to minus-40, delivered as promised.

I was last in Fairbanks in August 2019, for the initial appearance of Steven Downs on the murder and sexual assault charges. It is a wild place, a cross between Wild West honky tonk and rugged grunge craft beer culture, a final frontier, end of the earth feel. Everybody has a story.

Today is the first of five full days of preparation for next week’s hearings. As much as we thrive on going to trial, we are under no illusions. This is going to be a tough case to win any place in Alaska, but especially in Fairbanks. This crime has hovered over the community for nearly three decades.

We have eleven motions pending, nine of which are scheduled for hearing next week. First up on the list for Monday is a hearing on our motion to suppress statements and evidence of a gun and knife that were seized from Steven’s home in Auburn, Maine. The prosecution believes that these weapons were used in the crime twenty-seven years ago, but they are wrong. We don’t expect to win every battle next week, but our goal is to try to weaken the state’s case as much as possible.

Darkness is descending, the sky is clear. We should be able to see the aurora borealis tonight.


Day Four: Thursday, January 28, 2021

The breakfast area here at the Fairbanks Marriott Springhill Suites is busy each morning right at 6:30 a.m., when they begin to serve. Yesterday it was six young French women hanging out in the lobby, geared up like they were ready for a big ski excursion. Today it was a group of hunters, I thought they had southern accents, but maybe not.

Temps continue in the near twenty below range, my morning walks into the dry air are becoming one of my favorite parts of the day.

Our taxi driver from the airport was telling us about the caribou hunting season, residents are allowed two tags this year to thin out the herd. Stephen joked about my famous night hunting case that I prosecuted when we both joined the Maine attorney general’s office as young lawyers back in 1986, it was my first jury trial, for some reason it got all kinds of local attention, the headline at the top of the front page read: “Belfast Man Convicted of Night Hunting.” Our taxi driver here in Alaska told us night hunting is not really enforced up here at the arctic circle, as darkness has a different relevance from most other places.

The sun has been rising by about 10:00 a.m., and setting by about 5:00 p.m. And it’s cold. Our Uber guy yesterday explained the crack across his windshield as common in the sub-zero temps, and, like night hunting, not really enforced by local police. I expected a lot more snow. “We don’t get as much as you would think,” he said, “because it’s very dry up here.”

Today was a day of locking ourselves in our rooms and grinding though preparations for the motion hearings next week. This is a big “DNA case,” for sure, but it’s also going to come down to alternate suspects. The University of Alaska Fairbanks was a very dangerous place back in 1993, with no security and lots of dangerous characters around. One of them is sitting in the Spring Creek Correctional Center, in Seward, having killed another man subsequent to the Sophie Sergie homicide. We believe he also killed Sophie, and are petitioning the judge to allow us to present him as an alternate suspect at trial. We should have a better idea whether we will be allowed to do so by this time next week.

https://www.youtube.com/watch?v=sa7_RyCA_Zg
IMG_0122.MOV


Day Five: Friday, January 29, 2021

It’s interesting, I first came up here to Fairbanks back in late August 2019, for the initial appearance and fruitless bail argument on behalf of my client, Steven Downs. Steve had been dragged from his quiet home in Auburn, Maine, extradited across five of the country’s worst federal prisons over a Kafkaesque, nearly three month odyssey, landing finally here at the Fairbanks Correctional Center, some 4,500 miles away from home. All because of what an Alaska crime lab scientist from 1993 described as “a few spermatozoa” molecules from a botched crime scene more than a quarter century in the past.

My first anecdotal observations of Fairbanks back in 2019 were not positive. But then again, I was here for like three nights, spending most of my time in court and at the jail. We’ve had a chance to better observe the place here in the middle of winter. It’s a pretty hip place! We’ve been dining well, tonight on Jinhi Bay Alaskan oysters, at this cool little bistro downstairs at our hotel. Our waitress last night, who has travelled around the world and keeps coming back, described the people here as “wonderfully weird.” Jesse, a sailor and ship captain before becoming a lawyer, equates Fairbanks to other end-of-the-earth destinations like Bar Harbor, Key West, and Beaufort, NC. Everybody here has beards and tattoos, we are all looking pretty grungy ourselves, I’m trying to decide whether to shave before court next week… nobody would know, we are required to wear masks anyway. I know what big Don Hornblower’s answer would be.

We had our first interaction this Friday evening with the Alaska prosecutor, Jenna Gruenstein, since getting here, emailing back and forth about usual stuff like order of witnesses, etc. She’s pleasant enough, but… she wants this guy… bad. We have our hands full.

Hoping to get some views of the northern lights before we leave, but in the meantime I’ve added a few pictures to the gallery.


Days Six and Seven: January 30-31, 2021

We’ve spent the weekend secluded in our rooms in final preparation for the upcoming hearings. Hearings are scheduled on nine of the eleven defense motions pending, although we are skeptical we are going to get to all of them in the next four and a half days. (Alaska courts close at noon on Fridays.)

First up tomorrow is our motion to suppress evidence seized by Alaska and Maine state police when they arrested our client in Auburn, Maine, in February 2019. We are looking to exclude, on Fourth Amendment grounds, the DNA evidence buccal swabbed from Steven’s cheeks, an H&R .22 long barreled pistol and Bowie knife that police think were used in the crime 28 years ago, and statements that were given by our client in violation of his Miranda rights.

We are also litigating a motion to dismiss the indictment, a pleading common in Alaska but foreign to us in Maine. The gist of many of our arguments this week is that law enforcement, once detecting a DNA connection from a badly botched 1993 crime scene, have been ignoring highly exculpatory evidence that someone else committed this crime. In other words, they are trying to squeeze square pegs into round holes, trying to make the evidence work for their theory of the case.

CeCe Moore will be testifying this week during our motion to suppress the third party DNA evidence. She is the famous “genetic detective” (look up her TV show that ran this past year on ABC), capturing all these bad guys in cold case crimes. The most famous of these cases is that of Joseph James DeAngelo, the “Golden State Killer” who sexually assaulted and murdered dozens of women in California.

Is it constitutional for law enforcement, without warrants, to go into DNA data bases like Ancestry.com and 23andMe, without consent, and fish through millions of bits of data looking for a partial DNA match with a distant relative? In our case, they found a partial match with Steven’s aunt, who lives out of state.

We’re all for solving cold cases and catching serial killers, but it gets a little scary when we think about the risks and possibilities of scooping up innocent people in the process. This is an issue that has not yet been decided by the U.S. Supreme Court, but, interestingly, justices from both the right (Gorsuch) and the left (Sotomayor) have expressed trepidation with the practice.

It’s a brave new world, and cases like State of Alaska v. Steven Downs raise interesting cutting edge issues. After nearly two years of delay because of the complexity of the case and Covid-19, the rubber is about to hit the road here at the Fairbanks Rabinowitz Courthouse, before the Honorable Superior Court Judge Thomas Temple. The first witness on the stand on Monday morning: Randel McPherron, the veteran detective who came out of retirement to join the Alaska State Trooper Cold Case Unit in 2013, tasked with hunting down the perpetrator of the 1993 murder of UAF student Sophie Sergie.


Day Eight: Monday, February 1, 2021

Lead Detective Randel McPherron testified all day today on behalf of the state’s case in the motion to suppress. We should get to cross-examine him starting sometime tomorrow.

The prosecutor played a couple hours of audio interviews of Steven Downs being grilled by these two cowboy detectives from Alaska. We feel that was an error, it was a chance for the judge to hear Steve’s side of the story without being subjected to cross-examination by the prosecutor, and the Alaska cops come across as real jerks in the audio, making stuff up to try to coerce him into a confession. Steve has just categorically denied this from the very beginning.

I hear there’s a big storm back home. There has been hardly any snow here but they said the temperature tomorrow is going to get down to minus-63 with the windchill. Can’t wait!

Some local press coverage in Alaska:

https://www.webcenterfairbanks.com/2021 ... wns-trial/

And Maine:

https://www.sunjournal.com/2021/02/01/e ... uburn-man/


Day Nine: Tuesday, February 2, 2021

It took nearly two years, but today we finally got to confront Steven Downs’s accuser. It felt really good. Lead Detective Randel McPherron is a longtime cop with over 30 years of experience with the Alaska State Troopers. We had him on the witness stand all day. This has been a botched investigation from the beginning, so it was easy to point out the numerous flaws in the evidence from the past 28 years.

What is troubling, though, are the outright fabrications contained, over and over again, in the police affidavits in support of applications for the ten search warrants in this case. And the blatant violations of Steven’s Miranda rights. Detective McPherron made the classic mistake of trying to explain away his conduct when he really just needed to admit that he had made some mistakes.

This is a classic case of overzealous law enforcement fabricating a little here, exaggerating there, and outright making stuff up in some cases, all because they are convinced that Steven Downs committed this horrific crime. This is how innocent people get wrongfully convicted.

Tomorrow we go into day three of the hearing on our motion to suppress. We are very pleased with the way things are going so far, but we still have three days to go. We are really hoping to get to the hearing on this H&R .22 pistol that Alaska is so convinced is the weapon in the 1993 murder of Sophie Sergie.

Some local news coverage:

https://www.sunjournal.com/2021/02/02/p ... ka-murder/

https://www.webcenterfairbanks.com/2021 ... -hearings/


Day Ten: Wednesday, February 3, 2021

Sometimes you just have to put the warm bodies on the stand, you never know where it is going to lead. Yesterday I was cross-examining the lead detective about a letter from the Alaska Attorney General that was tucked in the 8,000 pages of discovery we have received in this case. We thought it was a letter requesting an authorization for a so-called Pen register trace on our client's phone, part of the Orwellian level of surveillance aimed at Steven Downs by the Alaska and Maine state police. Much to our surprise, the detective testified that the letter was related to a secret wiretap of our client, which was not subsequently disclosed to us within ninety days, as required by Alaska law. It has been nearly two years now, and we are just finding out about this wiretap. The judge went ballistic on the prosecutor, threatening sanctions. It has been a pattern of hiding evidence by this prosecution and its lead detective. We received a timely batch of 2,800 pages of discovery in the summer of 2019, not long after Steven was arrested. then they dumped an additional 4,900 pages of materials that they've had for decades... in the spring of 2020, more than a year after our client was taken into custody and shipped off 4,500 miles from home. Alaska has a history of pulling this stuff, dating before the Ted Stevens case. On to tomorrow, and the short walk from the hotel to the court house in the darkness and minus-20 temps at eight in the morning in downtown Fairbanks, Alaska....

https://fm.kuac.org/post/sophie-sergie- ... e-proceeds


Day Eleven: Thursday, February 4, 2021

This may have been the wildest day yet in court. It was a tough slog through most of the day until the last witness with forty-five minutes to go. We called Kate deSchweinitz Lee, the former girlfriend who Steve Downs dated during college, back when he was young and strapping. The relationship was very serious by the spring semester of their freshman year, when the murder occurred. Steve told police he was with Kate on the night of the murder.

She appeared by Zoom from her home in Palmer, Alaska, down near Anchorage, still looking as beautiful as ever. The prosecution had called her as a witness at the grand jury proceeding back in March 2019, not long after Steve had been arrested. She was supposed to be their big rebuttal witness to Steve’s alibi that night. Instead, she testified that she had no real recollection of that night. She also rebutted the state’s argument that Steve had a gun at the time, testifying that, while she did remember going out target shooting one time with him in the woods, he did not own a gun at any time, and that was the only time she saw him with a gun -- or any other weapon, including a knife -- during their nearly four year relationship.

The other big issue that won’t go away is the extent to which prosecutors and the Alaska State Troopers are hiding evidence from us. It is really outrageous, and we feel we have scratched only the very tip of a big Alaska iceberg.

In this video, I am confronting the lead detective about the fact that the state may have been monitoring a call between steve and our local Maine defense attorney friend Don Hornblower, the night before he was arrested. I can’t even begin to tell you how outrageous that is….

https://www.webcenterfairbanks.com/2021 ... dismissed/

We had a final dinner here -- the rather rough looking team -- in Fairbanks with our local attorney, Frank Spaulding on the left, Jesse Archer, myself, and Stephen Dassatti. We are leaving tomorrow afternoon for Seattle tomorrow night, then heading back east. It has been an absolutely incredible trip.


Day Twelve: Friday, February 5, 2021

We are back at the Hilton Airport Hotel in Seattle for the night, on our way home. The end of an incredible trip. We ended court at noon today, and left Fairbanks later in the afternoon. It was a trip tinged with great sadness following the loss of my youngest brother Dan.

Today we presented the legendary retired Alaska detective, Jim McCann, as a witness. Nicholas Cage played him in the movie “The Frozen Ground,” a story about a lone Alaska detective tracking down a serial killer. He solved 78 murder cases during his career, all resulting in convictions, except one… the Sophie Sergie case. He was taken off the Sergie case and eventually left on bad terms with the Alaska State Troopers, ultimately becoming a used car salesman in Fairbanks. I talked to him on the phone yesterday for about an hour, and we hit it off. He did not disappoint on the witness stand.

McCann testified about an early suspect in the case named Kenny Moto, a man who was seen coming out of the women’s second floor bathroom at Bartlett Hall on the campus of the University of Alaska Fairbanks at about 1:30 a.m., on April 26, 1993, about the time Sophie was last seen walking toward the bathroom. Years later Kenny’s sister came forward and told police that her brother had confessed to killing Sophie. Kenny went on to commit over a dozen crimes of violence against women, and sits now in the Spring Creek Correctional Center in Seward, the state’s maximum security prison, on a homicide conviction. He was “exonerated” by the Alaska State Troopers because his DNA did not match that from the crime scene. We believe Kenny Moto killed Sophie Sergie, and are seeking to present him as an alternate suspect.

We litigated only one of our pending eleven motions, but it was the motion to suppress evidence, the most complicated one. We are in the middle of our motion to dismiss the indictment, which will be continued by Zoom in March. We’ll litigate the other motions at some point in 2021. The judge blocked off seven weeks for trial commencing on January 3, 2022. In the meantime, Steven Downs sits in the Fairbanks Correctional Center, nearly 5,000 miles from home. Next week he’ll have been in custody for two years, having been dragged from his quiet home in Auburn, Maine, on February 15, 2019.

It would be extremely unlikely for the judge to dismiss the case outright, but our realistic goal is to weaken the case as much as possible, and impress the prosecutor and lead detective that going through a two month trial in this matter is going to be a miserable experience for the state. I can’t see how the first week of meaningful litigation in the case could have gone any better -- we really feel like we were able to wreak some havoc -- but there is a long way to go in this exceedingly complicated case. Jesse and I have two other murder cases in Maine, where we feel both of those clients are innocent as well. It is going to be a busy year!

Thanks to everyone for reading my little blog. It has been a very emotional month, and I am tired. We’ll see you all soon back in Maine!

Jim

https://www.sunjournal.com/2021/02/05/e ... had-a-gun/

https://bangordailynews.com/2021/02/03/ ... cold-case/

https://www.youtube.com/watch?v=g0_mrDgDe4w


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