Alaska

[JimHow]

Booked our flights and accommodations today, jury selection commences on Monday, January 3rd, followed by seven weeks of trial.
We'll be arriving in Fairbanks on Friday, December 31st. Happy #$%@ing New Year.
Our defense has been completely gutted, it is beginning to seem like a quixotic enterprise.
I've been teetering between fasting completely every night for the next three months, or drinking heavily every night for three months.
I've chosen the former, but will try to uncork something special for my Thursday night wine dinner for one last hurrah.

[OrlandoRobert]

I don’t know how you do this buddy, you are a true warrior. Much respect. I truly believe your role is the most important service that any lawyer can provide. Hopefully that’s some consolation for the struggle in which you are about to embark. Someone’s liberty is at stake. There is nothing that is more important than that, in this overly-penal, violent government.

[JimHow]

It gets depressing, OB.
I’m testifying before the Maine legislature tomorrow.
I’m going to present my five point plan and then call the current system a kangaroo court. It will ruffle feathers, all the way to the Maine Supreme Court.
The system is truly crumbling, my friend, it is so sad.

[PghMike]

If I make it up there in the next couple months I'll buy you a well deserved dinner. I'm not looking forward to my short term travels let alone a longer haul. Sorry to hear but glad to see people fighting for fairness where there can often be little to be found.

[JimHow]

Indeed Mike, we’ll be at the Springhill Suites in Fairbanks, across the street from the courthouse, through January and into February. They have an excellent bistro there — Lavelle’s Bistro — that is the best restaurant in town, with actually a pretty good, mostly west coast wine list. Let me know when you’re in the area!

[JimHow]

Here’s the Lavelle’s Bistro wine list…

It’s a great outpost restaurant 14 miles from the Arctic Circle…

http://www.lavellesbistro.com/5_wine/wine.html

[OrlandoRobert]

Here’s the Lavelle’s Bistro wine list…

It’s a great outpost restaurant 14 miles from the Arctic Circle…

http://www.lavellesbistro.com/5_wine/wine.html

2009 DOM FOR 240
2008 RIDGE MONTE BELLO 185

DAY ONE

[JimHow]

Lol… 44 days to go.

[JoelD]

Here’s the Lavelle’s Bistro wine list…

It’s a great outpost restaurant 14 miles from the Arctic Circle…

http://www.lavellesbistro.com/5_wine/wine.html

2009 DOM FOR 240
2008 RIDGE MONTE BELLO 185

DAY ONE

Damn OB already hunted out the deals for you. But actually all the champs are very reasonable. Your favorite 08 Cristal is barely marked up on current rates!

Best of luck, Jim. Sorry to hear about all the cards getting stacked against you. If anyone can pull it off though...

[JimHow]

This is our defense team, our last night in Fairbanks at Lavelle's Bistro when we were up there last February for pretrial hearings.

Left to right...

Frank Spaulding, our local counsel from Fairbanks, we love him to death, we could not have asked for a better local attorney to sign off on our pro hac vice admission.
Jesse Archer from Maine, he's been my right hand man in some of my biggest trials, he's a beast. An animal.
Me, I've shaved and cut my hair since.
Stephen Dassatti, one of my three best friends, career prosecutor here in Maine who retired a couple years ago, BWErs will remember him from the BWE conventions in 2002, 2003, and 2004, the most brilliant and funny person I have ever met.

[OrlandoRobert]

Here’s the Lavelle’s Bistro wine list…

It’s a great outpost restaurant 14 miles from the Arctic Circle…

http://www.lavellesbistro.com/5_wine/wine.html

2009 DOM FOR 240
2008 RIDGE MONTE BELLO 185

DAY ONE

Damn OB already hunted out the deals for you. But actually all the champs are very reasonable. Your favorite 08 Cristal is barely marked up on current rates!

Best of luck, Jim. Sorry to hear about all the cards getting stacked against you. If anyone can pull it off though...

AND THAT 2008 IS TRULY MAGNIFICENT.

[PghMike]

Here’s the Lavelle’s Bistro wine list…

It’s a great outpost restaurant 14 miles from the Arctic Circle…

http://www.lavellesbistro.com/5_wine/wine.html

Actually ate a quick dinner here in June! Food was great, didn't go for a bottle, just a beer after a long day and not enough sleep.

[Jay Winton]

If any attorney and team can do it, yours can. Hello to Steve!

[Musigny 151]

Nothing for the Bordeaux lover. BYO?

[JimHow]

Ha I noticed that as well.
Not a single Bordeaux!
I was thinking of shipping wine up there for the stay, kind of like Churchill when he stayed at the White House.
I really benefitted in my last murder trial by exercising, losing weight, abstaining from alcohol, etc., for three months before the trial, I felt like I ran circles around the younger lawyers for two weeks.
If the judge doesn't let us present alternate suspects I don't know how I can win this case.
There are basically 8,000 pages of discovery and hundreds of audio/video/photographs.
If you just pick out the evidence that is consistent with the defendant's guilt, the result is pretty foreordained.

[Nicklasss]

Oumf, this is kind brutal, starting on January 3rd...

All the best to you and your team Jim, and wish you to help that poor man with that big trial.

Sometimes, i think justice is full of injustices...

[DavidG]

Good luck Jim. Peggy and I will be thinking about you.

[dstgolf]

Jim,

We don't envy you heading to Alaska at that time of year the land of eternal darkness and bone chilling cold. We feel fortunate in Ottawa/Lewiston by comparison. Your idea of preparing physically and mentally for the challenges ahead must in order to keep your head in the game. Good luck to you up there but you don't sound as optimistic as you did in the past about this case. What has changed? All the best and make sure that you have a fabulous holiday season in preparation for the months to come. Looking forward to the running updates along the way.

[JimHow]

Thanks Danny and everyone for your wishes.
The biggest thing that has happened Danny is that the judge has ruled against us on almost all of our pretrial motions.
He has denied 11 of our 12 motions. Some of the motions we did not expect to win, but he has gutted out a lot of our trial strategy.
The one remaining motion deals with the extent to which we will be allowed to present evidence of alternate suspects, including one fellow in particular against whom there seems to be compelling evidence he was involved. That decision should be coming imminently. If he does not let us present that and other "exculpatory" evidence, and narrows down the case to just the DNA that was found associated with the victim's body, then our job is going to be very difficult.

But... hey, I can whine about it til the cows come home, it's not going to get me anywhere. Our one-way flight s booked, we're on our way. And yes, after tonight, I'm in my Rocky Balboa training mode, like in my last murder trial. These trials are mentally, physically, and emotionally sapping, I have to be at my best physically and mentally, thus the holistic approach to trial preparation.

[JimHow]

Speaking of wine...
I've uncorked a 2014 Clerc Milon as my "last" wine before trial (ok, a few sips on Christmas Eve).
Tomorrow, it is onward with final preparation.

[JimHow]

Our judge:

http://www.courts.alaska.gov/judges/docs/tit.pdf

[JimHow]

We had quite a meeting with the legislators in Augusta today.
The Constitution is holding on by a thread, folks:

https://www.sunjournal.com/2021/12/09/d ... ted-cases/

[JimHow]

The judge ruled yesterday on our motion to allow evidence of alternate suspects....

[Hm$(still)]

I am fascinated by the ruling at the bottom of p.20 that you have to preview your evidence for the judge and the prosecution to protect the Jury from hearing about inferences which may not be supported by future testimony. Quite an advantage to hear the other side’s testimony and strategies in advance. And what if you are wrong? I.e. what if a witness tells you he will say one thing and then changes his story?

Hm$

[JimHow]

Ha my associate Jesse was just saying the same thing.
Yeah, there's a lot involved in presenting alternative suspects.
We're generally happy with the order, although we've got some pretty significant hoops we've got to jump through.

[DavidG]

Wow, you guys obviously did a lot of digging. I’ll say it again: Jim, you’re the Petrus of defense attorneys. Or at least the 2014 VCC and Clerc Milon.

Why can’t you show only the judge and not the prosecution who the witnesses are and the evidence that you’ll present? It’s the judge that determines whether it’s admissible, why does the prosecution get to see it? You’d have to give them your witness list but why do you have to reveal what they’ll say? (LOL autocorrect tried to change witness list to wines list.)

Is there anything you can say publicly about how you are going to attack the DNA evidence? Quality, quantity, chain of custody, degradation over time, etc?

[JimHow]

Ha thanks Dave I’m feeling the lawyer equivalent of Parkerized at this point.

The case law on presentation of alternative suspects is pretty straightforward, and the judge followed it pretty thoughtfully in his order. Alaska is actually more liberal than Maine and other states on allowing evidence of other suspects, you’ve got to meet certain thresholds for it to be allowed in, it’s a balancing act, we can’t have random trials within trials, it would result in chaos. The unfortunate thing is that the sister of one of the suspects told the police that her brother confessed to the crime to her. Unfortunately, the sister has died. So the statements are double hearsay. We tried to argue that the statements should come in under a hearsay exception but the judge ruled against us. Interestingly, the judge is still letting us present him as an alternate suspect, and seems to be inviting us to call him as a witness. We know where he is… at the Alaska state prison for killing another man. But as we read the judge’s order, we may be somewhat hamstrung in how much we can cross examine him. (Everything herein is public record.).

As for the DNA evidence, I think to a certain degree there is going to be a battle of experts. There are 15 experts designated by the parties in this case. This is a really complex case, a lot of moving parts, witnesses coming in from the lower 48, we’re gonna be up there for up to 7 weeks, we gotta wear masks the whole time, the jury is going to be spread out throughout the courtroom, including behind us. It’s going to be crazy.

[JimHow]

Yesterday was a bit of a poignant day, I took my name off the roster of court appointed lawyers in Androscoggin County for the first time in 36 years. I have 115 pending felony cases, including two more murder cases, and it’s time to start the process of winding things down. It’s going to take a couple years to wind down this caseload, which will just about take me to Medicare. It’s just amazing how much the criminal court system has declined during my career, to the point now of imminent collapse. As my fellow aging defense lawyer buddy Don Hornblower said the other day, we are canaries in the coal mine. Disaster is imminent. We see what is coming at the precipice of failing democracy.

[JimHow]

A newspaper update...

https://www.sunjournal.com/2021/12/15/a ... dge-rules/

[DavidG]

The case law on presentation of alternative suspects is pretty straightforward, and the judge followed it pretty thoughtfully in his order. Alaska is actually more liberal than Maine and other states on allowing evidence of other suspects, you’ve got to meet certain thresholds for it to be allowed in, it’s a balancing act, we can’t have random trials within trials, it would result in chaos. The unfortunate thing is that the sister of one of the suspects told the police that her brother confessed to the crime to her. Unfortunately, the sister has died. So the statements are double hearsay. We tried to argue that the statements should come in under a hearsay exception but the judge ruled against us. Interestingly, the judge is still letting us present him as an alternate suspect, and seems to be inviting us to call him as a witness. We know where he is… at the Alaska state prison for killing another man. But as we read the judge’s order, we may be somewhat hamstrung in how much we can cross examine him. (Everything herein is public record.).

I understood all of that reading the ruling. It was remarkably plain English.

My question is this: is it routine for the prosecution to see the evidence on alternative suspects that you have to present to the judge for a determination of admissibility?

I hear you on the bittersweet emotions…

[JimHow]

Yes. In Alaska we had to have what is called a “Smithart hearing,” attempting to present alternate suspects is one area where we have to show our hand, the state gets to present evidence and arguments as to why the defense doesn’t meet the Smithart standards, etc. You are right, we normally don’t have to indicate our defense strategy beforehand but in the case of alternate suspects we do. Same thing with alibis. If we intend to rely on an alibi at trial, we have to describe to the prosecution beforehand what our alibi is.

[JimHow]

Ugh. We just got off a conference call with the judge. Trial starts two weeks from today.
But that's not the big news.
The big news is that the trial is going to be live streamed ... on YouTube, I believe... so you will get to see me humiliated in real time, live, on the internets.
It is going to become public knowledge very soon, so I figured I'd tell you guys first.
I'm going to need a lot of wine... and love... after this is all over, guys.

[JimHow]

We will be completely masked during trial, including during opening statements / closing arguments, and examination of witnesses.

[DavidG]

How does that affect the trial itself, Jim?

More scrutiny by press? Do jurors really avoid looking at newspapers or online reporting?

Prosecutors playing to the media?

[JimHow]

All good questions, David.
I've had quite a few trials over the years that have been covered by the local newspaper and TV media.
My guess is that at least some jurors have taken a peak at some of the coverage.
What I've always been really impressed by, though, is how seriously jurors take their jobs.
More than once we've had jurors self-report by writing notes to the judge that they heard or saw mention of the case in the media, etc.

I've had a number of cases where TV cameras and other media have been in the courtroom, but never full live streaming of the trial. This will be a first. I don't think it's going to be on Court TV or anything like that, as I understand it, it is going to be live streamed on YouTube on the Alaska court system website.

We are being moved into the larger courtroom on the fifth floor of the Fairbanks courthouse, to allow for more social distancing. The media, family, spectators, etc., will be in the courtroom on the fourth floor, where there will be a live feed. The only people that will be allowed into the fifth floor courtroom will be the lawyers, defendant, court security and clerks, and jurors.

Unfortunately we are going to have to wear masks the entire time, including during cross-examination of witnesses and opening/closing, which of course makes it very difficult to bond with jurors and for jurors to observe the demeanors of witnesses, etc. Also, the jurors will be socially distanced throughout the courtroom, on both sides of us and behind us. So, I won't be able to go up to the podium and address twelve people sitting in front of me, it is going to be more like a Phil Donahue presentation. It is truly a Kafkaesque situation.

[DavidG]

Very strange setup. I can see how it fundamentally changes the relationships between the attorneys, witnesses, and jurors. Uncharted waters.

I wonder if that could be grounds for an appeal? Did the accused really have an opportunity to confront his accusers? Probably a stretch…

Please post a link to the proceedings. I know Peggy and I will be thrilled to see you in action.

[JimHow]

Ha yes I'll post it when it becomes available.

[Jay Winton]

Crazy times!

[JoelD]

Unfortunately we are going to have to wear masks the entire time, including during cross-examination of witnesses and opening/closing, which of course makes it very difficult to bond with jurors and for jurors to observe the demeanors of witnesses, etc. Also, the jurors will be socially distanced throughout the courtroom, on both sides of us and behind us. So, I won't be able to go up to the podium and address twelve people sitting in front of me, it is going to be more like a Phil Donahue presentation. It is truly a Kafkaesque situation.

I can totally see how this could make it much harder on the defense. Hopefully you can make the most of it. If anyone can, its you.

I wonder, are face shields an option? That might be something to consider as people could at least see your face. This could also be an option for any witnesses for the defense. Just a thought. Or those really goofy looking masks that are see through and show the face.

[JimHow]

Not sure the answer on that Joel. I just don’t know how we’re going to get through a seven week trial without anyone getting Covid. We are going to have four alternate jurors as opposed to the usual two, but I guess we’ll see if that’s enough. We’re going to be starting the case immediately after major indoor holidays and the height of flu season. If the judge or one of the six lawyers involved catches Covid it’s going to be a mistrial and we have to start all over at a later date. This is not a one day drunk driving trial, or even a two week murder trial, like my last case. There will probably be over 50 witnesses in this case, some traveling from afar. The logistics seem overwhelming.