Criminal Defense in Rural Alaska

Criminal Defense in Rural Alaska

Rachel King

"Criminal Defense in Rural Alaska" by Rachel King. Alaska Justice Forum 15(1): 1, 5-8 (Spring 1998). Based on the author's work as an assistant public defender from 1991 to 1994 in three jurisdictions in rural Alaska - Ketchikan, Kodiak, and Kotzebue - this article focuses on several structural aspects of the criminal justice system in rural Alaska which may contribute to the overrepresentation of Alaska Natives in the Alaska prison system. While some of the problems identified can affect non-Natives as well as Natives, this discussion focuses primarily on the situation of rural Alaska Natives.

While Alaska Natives are only 16 per cent of the overall population of the state and only 12 per cent of the adult population, Alaska Department of Corrections statistics indicate that approximately 34 per cent of the current population in Alaska prisons is Alaska Native.

This article focuses on several structural aspects of the criminal justice system in rural Alaska which may contribute to this overrepresentation of Alaska Natives in the state's prisons. While some of the problems identified can involve non-Natives as well as Natives, this discussion focuses primarily on the situation of rural Alaska Natives.

In writing the article, I have drawn upon my work as an assistant public defender and upon additional research. From 1991 to 1994, I represented indigent clients in the jurisdictions of Ketchikan, Kodiak and Kotzebue. Each of these areas is populated by different Alaska Native groups: Tlingit, Haida and Tsimshian Indians in Ketchikan; Alutiiq in Kodiak; and Inupiat in Kotzebue. During my three years of work, I kept a detailed journal of my experiences in these communities. Quotations from this journal are presented in italics.

Attorney-Client Relationship

Vast distances separate clients in rural Alaska and the few attorneys available to represent them. In more remote parts of the state, transportation and communication systems resemble those in developing countries; power outages, poor equipment and bad weather often interfere with communication.

Southeast Alaska

I served three islands in Southeast Alaska while working out of the Ketchikan office—Revillagigedo Island, where Ketchikan is located; Prince of Wales Island; and Annette Island, where Metlakatla is located. Travel between islands was by ferry, plane or charter boat. Once a month I caught a float plane, or put my car on the ferry, and traveled to Craig, which is the court seat for Prince of Wales Island. Unless they traveled to see me, this monthly visit was the only chance I had to meet with clients in person. The extent of my caseload made more frequent travel impractical.

Figure 1. Ketchikan Area, Southeast Alaska (map)

The history of my first jury trial exemplifies some of the problems of representing clients in Southeast Alaska. The client lived in Whale Pass on Prince of Wales Island. The only telephone in Whale Pass was at the general store—a place of little privacy. Pretrial communication with my client was limited to writing and the one visit which she made to Ketchikan. To investigate the case before trial, I traveled by ferry from Ketchikan to Prince of Wales Island, a journey of several hours. I left Saturday morning; trial was scheduled for Tuesday. On Prince of Wales Island, I drove one and a half hours from a paved road to a logging road. From the end of the pavement to Whale Pass, a distance of about 125 miles, the drive took nearly four hours. I arrived in Whale Pass around 8:00 PM, about twelve hours after boarding the ferry.

Because Whale Pass had no public accommodations, I slept on the floor of the laundromat, which was actually the back room of a store selling convenience items like cigarettes, coke, potato chips and frozen burritos. The store owner carried me in his boat from where the road ended to my client's home at the end of the point. Her log cabin lacked a telephone as well as indoor plumbing and electricity.

She was charged with theft and criminal trespass; it was alleged that she had taken some gasoline from her neighbor. To prepare the defense, I needed to examine the property boundaries between her cabin and the neighbor's property and to question the townspeople about the character of the complaining witness. My investigation helped me to impeach the witness during cross-examination. The jury acquitted my client, but without the trip to Whale Pass, the result might have been otherwise.

While not all villages on Prince of Wales Island are as remote as Whale Pass, it is common for residents, both there and on Annette Island, to lack telephones. If clients could afford to come to Ketchikan by plane or boat, we met in my office. Often, however, because they could not afford plane fare, we met right before the court date—or not at all.

Clients arrested or charged during a time not corresponding with the traveling calendar appeared in court by themselves. There were no private attorneys practicing on Prince of Wales. If a client specifically requested to speak to an attorney, the magistrate for the district court called to inform me that I had been appointed to a new case. It was not unusual for me to receive a phone call from the magistrate asking me if I could take part in a telephonic proceeding already in progress.

Because I did not live in the community where the court was located, it was common for clients to seek advice about their cases from the district court magistrate or the local police. The magistrate, an attorney, usually responded to questions from defendants with the advice to call me. Local police officers, however, were not always as meticulous about protecting the rights of defendants and on more than one occasion spoke with an individual in violation of the right to counsel.

Kodiak

Similar geographic characteristics exist on Kodiak Island, but the Kodiak public defender's office handled only the one island rather than three islands. The four Native villages on the island were accessible only by boat or plane, and the same pretrial communication problems existed. Financial and time constraints made it difficult for me to visit my clients and, as in the Southeast villages, many clients lacked telephones.

Figure 2. Kodiak Island (map)

Because the holding facility—two small rooms—could only handle a limited number of prisoners, clients in custody for more than a few days in Kodiak were transported to Anchorage, several hundred miles away. The Kodiak facility also lacked a clean, private space for attorneys to meet with clients.

Because of the difficulties in transporting clients back and forth, the court held many hearings telephonically, making it difficult for me to ensure that the client did not say anything to hurt his case. For example, I represented one client who was charged with stealing the purse of an official's wife and attempting to cash checks on her account. Although the client had been offered a "deal," I believed that the client was being treated more harshly because of the identity of the victim. When the judge asked the client questions to determine if he was entering a plea voluntarily, the client said, "Well, Miss King thinks I'm getting the shaft."

What could I say? I did think he was getting the shaft but if I tried to cover up the comment or explain it away my client wouldn't trust me and if I didn't explain it away, the prosecutor and the judge won't trust me.

After my client's comment, the judge asked me what I thought. I said that I felt that the district attorney's office was prosecuting the case more aggressively because of the identity of the victim. I also said that the client understood he was not obligated to accept the offer.

Kotzebue

Kotzebue and the Northwest Arctic Borough presented the most extreme geographical problems. I was the only public defender for the entire borough, an area of over 37,000 square miles where communities range in population from over 600 in Selawik to less than 200 in Deering. Kotzebue itself has a population of around 3,000. Although I lived in Kotzebue, where the courthouse is located, many of my clients lived in villages accessible only by boat, plane, snowmachine, or dog team. Again, caseload and time constraints made regular village travel impossible.

Figure 3. Northwest Arctic Borough (map)

Bail

Persons who are incarcerated before trial seem to have very different outcomes in their cases than those released awaiting trial. Pretrial detention interferes with a defendant's ability to defend himself; it compromises his ability to work and deprives his family of emotional and economic support. A detainee is unable to meet as freely with his attorney and is hindered in his ability to help investigate his case. Because these factors possibly contribute to an increased rate of conviction of defendants who are detained pretrial, the problems surrounding bail and pretrial detention in rural Alaska are particularly troublesome.

Since most of rural Alaska does not have jail facilities, clients must be transported out of their communities if they are arrested and unable to post bail. This complicates defense preparation. Both Craig on Prince of Wales Island and Metlakatla have short-term holding facilities. If defendants are not able to post bail within one or two days they are transported to Ketchikan, where the jail houses individuals awaiting trial. As previously mentioned, Kodiak has a temporary facility that holds defendants for as long as a week. Defendants unable to post bail within that time frame are transported to Anchorage, an hour away by plane. Defendants from villages outside of Kodiak are transported first to Kodiak and then to Anchorage, two plane rides away from home.

In the Northwest Arctic Borough, anyone arrested in a village and not released immediately by a magistrate would be transported to Kotzebue. None of the local villages has holding facilities. For example, a defendant arrested in Point Hope would be transported several hundred miles to Kotzebue for arraignment. Flying from Point Hope to Kotzebue involves a 45-minute plane flight at a cost of $120. The defendant may not know anyone in Kotzebue and again, because of the lack of phones, he may be unable to reach family or friends to ask for bail money. If the defendant cannot bail out within a couple of days, he or she is transported to Nome—another one and a half hour plane ride with a round-trip cost of $300.

In addition to the absence of support from family and friends, visits with an attorney are difficult and infrequent if a client is held in a different town. Once an individual was transported from Kotzebue to Nome, or from Kodiak to Anchorage, it was very difficult for me to visit. The demands of my caseload made it possible for me to visit jails in Nome and Anchorage about once every six weeks.

Communication by telephone is also complicated. Although clients could call collect regularly, I was not always in my office to accept the call. Inmates can also call family and friends collect during specific times, but, again, these personal contacts may lack regular access to a phone.

The following journal passage describes my frustration with trying to represent a client from Deering who was in custody in Kotzebue:

A lot of people here do not have the resources to pay bail and the courts are not inclined to give OR releases [release from jail on one's own recognizance and promise to appear for future court dates], at least not in cases where someone has an ongoing problem, like M who just got out of jail last week for assaulting his wife and then ends up in jail again on Friday. The court imposed a $1500 cash bail. We have some possible third party custodians. Now B . . . wants him to come home and help take care of the kids. But she was just in court on Thursday seeking a restraining order. She has since dropped her charges and now tomorrow she wants to go to court and ask the judge to let M go home. The judge actually denied her last request to withdraw her restraining order which is fairly unusual. So M probably will not get out of jail, even though he has a fairly good third party custodian but no way to get to his house which is in Deering and so he'll be stuck here in Kotzebue and then he'll be transported to Nome and we'll have to deal with trying to get him out of jail after he has served a long period of time in jail. The jail seems to transport clients really quickly so if I don't get to them out right away they are off to Nome and then everything is just that much more complicated. [Initials have been changed.]

One particularly difficult case involved a deaf client from Kiana who was detained in Nome. He was arrested for sexual abuse of a minor, then transported from Kiana to Kotzebue. When I could not find a suitable bail arrangement, he was transported to Nome. I could not call him in jail, so he had to call me collect using the deaf translator phone service, hoping that I would happen to be in the office when he called. For me to visit him in jail cost several hundred dollars and a full work day.

The seasonal rhythm of work in rural Alaska also contributes to unusual complexities in the criminal justice process. Summer is work time in most of rural Alaska, the time of gathering food for the coming year. Many clients traveled from their regular homes to fish camps. Even those that lived in Kotzebue moved to the beaches to be near the harvesting sites.

In Kodiak and Ketchikan, clients involved in commercial fishing could be away from land for long periods of time. Because they felt that it was too difficult to meet required court appointments and work with an attorney, clients often chose to plead guilty, do their jail time (or get it deferred if possible) in order to end the case. This may have resulted in innocent clients being punished, or the state obtaining easy convictions which it might not otherwise have gotten if the clients had been willing to go to trial. Alaska Natives simply could not afford the time for protracted litigation, especially with minor misdemeanor cases, so pleading guilty or no-contest was the easiest, and often the most sensible, solution. Hence, when I asked my clients if they would like a bail hearing, a common response was, "I'll just do my time and get it over with."

Court Proceedings

The geographic problems described often prevented my client and me from being at the same place for a court proceeding. The judge usually appoints a public defender at the first court appearance, the arraignment, but Alaska law requires that defendants appear before a judge or magistrate within 24 hours of arrest. The conflict between the two rights in rural Alaska is resolved by holding the hearing within 24 hours and appointing an attorney as soon as possible.

Clients are required to participate in court proceedings, but this participation may be telephonic. If a client is detained in a facility located in a different place from the courthouse, the Department of Corrections arranges to transport the defendant to the proceeding if possible. However, transportation is sometimes impossible either because of inclement weather or a lack of state troopers available to provide transportation. In addition, clients sometimes requested not to be transported because they did not want the disruption of being moved back and forth between facilities. Clients with prison jobs would lose their positions if transported. Because of all these factors, it was common for either myself or my client to participate in a court proceeding telephonically.

The following passage describes representing a client from Metlakatla at a change of plea hearing. I never met the client in person.

J pled out to one count of minor in possession (the state dismissed theft 4) for sticking a bottle of Jim Beam inside his coat. He did this while standing at the counter of the liquor store while his wife bought a couple of cases of beer. He says he was playing a joke and didn't intend to steal it, and besides if he had intended to steal it it would have been a pretty stupid thing for him to do it in such an open and obvious way. But J lives in Metlakatla and he didn't want to go to trial or come to Ketchikan for court. So he pled out at trial call without ever having consulted with me in person about his case. [Initials have been changed.]

In this case the client might have felt otherwise about taking his case to trial if it had been possible to hold the trial in Metlakatla or if he and I had had regular contact with each other and had established a better relationship.

Jury Selection and Composition

Alaska Administrative Rule 15 requires that juries (both grand and petit) be selected from those who reside within a 50-mile radius of the courthouse. This 50-mile limitation excludes those who fall outside the radius, often those living in the smallest Alaska Native villages. Both the Alaska and United States Supreme Court have interpreted the fundamental right to a jury of one's peers as imposing a vicinage requirement—the right to have a jury include residents from one's own village—but this vicinage requirement is often not met in rural Alaska. For example, the client from Whale Pass discussed earlier did not have anyone from her community in the jury pool for her trial in Craig because Whale Pass lies more than 50 miles from the court. Similarly, clients from Point Hope would not have anyone from their community in the jury pool for a trial in Kotzebue.

The exclusion of residents of rural villages is particularly noticeable when the trial is held in towns such as Ketchikan, Craig or Kodiak where the majority population is white. Natives from rural villages are tried by people from larger urban areas who, in all likelihood, are white. (In Kotzebue, the majority population is Inupiat, so even if people from the defendant's village do not sit on his jury, there will likely still be Inupiat on the jury).

I discovered a particularly noteworthy example of juror exclusion while practicing in Ketchikan. While representing a young Tsimshian Indian from Metlakatla, I learned that the court in Ketchikan systematically excluded residents of Annette Island from serving on juries on the basis of the unpredictability of weather in Southeast Alaska, which often made travel difficult or impossible. After I filed a motion challenging the constitutionality of this exclusion, the Superior Court judge, himself unaware of the practice, changed the selection process by administrative order. No one knew how long the practice had been in effect.

In addition, during the period I worked in the Southeast, the Superior Court usually held major felony trials for all three of the islands in Ketchikan. The jury pool for Ketchikan trials was drawn only from Revillagigedo Island, where Ketchikan is located (and, after the judge changed the practice, Annette Island). Defendants from Prince of Wales Island would not have persons from their communities on the jury because of the 50-mile radius rule. This practice had implications for Haida clients because the largest Haida community in the Southeast—Hydaburg—is located on Prince of Wales Island. The majority Alaska Native population on the island of Ketchikan is Tlingit. Thus, an Alaska Native client from Hydaburg was likely to get a predominantly white jury (because the majority population in Ketchikan is white) and, to the extent that Alaska Natives served on the jury, they were more likely to be Tlingit than Haida.

Probation and Parole

Many of the problems in complying with pretrial conditions also affect individuals on probation and parole. The probation conditions which judges typically impose can be difficult for rural Alaskans to meet because they involve attending treatment programs that do not exist in the bush. This means that offenders from rural communities are obliged to remain in urban areas during probation or parole and, thus, they are removed from their support systems and possibly more likely to fail. Most villages do not have resident probation officers, also probably contributing to a higher failure rate.

The experience of an older Alutiiq man from the village of Karluk exemplified the difficulty that some villagers have complying with probation conditions. This client was initially charged with a felony for chasing his nephew with a knife. The state reduced the charge to a misdemeanor in exchange for his no-contest plea, and the judge sentenced him to probation, allowing credit for time served in jail, with the condition that he seek alcohol treatment.

The alcohol treatment screening involved a two-part procedure that the defendant had to do in person, rather than over the phone. The screening took place on two consecutive Wednesday nights and the flight from Karluk to Kodiak was $76 one way. The client traveled to Kodiak for the alcohol screening and the counselor recommended that he attend an intensive outpatient program that met twice a week for six weeks. This man, who was in his sixties, lived on a limited income. He did not have a place in Kodiak where he could live during the treatment, nor could he afford to fly back and forth twelve times over the course of six weeks. Karluk had no alcohol programs that he could attend. I left Kodiak before learning if this client had successfully completed the program, but even if this individual did manage to complete all of the probation requirements, many people in similar situations could not.

To the greatest extent possible the court, prosecutors, public defenders and troopers may want to look at some of the practical problems addressed by this article and consider making changes to the system. Some changes could occur relatively easily because most communities have some form of tribal court or council already in place. The state could experiment with returning the prosecution of minor misdemeanors to the community level. Tribal courts and councils might adjudicate minor offenses and provide follow-up. Probation and supervision at the local level, integrating community values, would more likely succeed than the current system. Such an approach would also save the state much-needed revenues which are currently being used to fund transportation and incarceration.

Rachel King is an attorney with the American Civil Liberties Union in Washington, D.C. She formerly worked in the Alaska Office of the Public Defender.