.IN.THE.SUPERIOR COURT FOR THE STATE OF ALASKA FOURTH JUDICIAL DISTRICT AT FAIRBANKS STATE OF ALASKA, Plaintiff, V. ALEXIE WALTERS, Defendant, Case AND ORDER GRANTING MOTION FOR CONTINUANCE AND I. INTRODUCTION Less than a week before the Start of a long set trial in this case, ?the attorney' for the defendant' filed. a [mation"to ContinUe based. on. the attorney?s leaving the Public iDefender Agency: The State opposed. the-Imation. and. asked the court -to compel the withdrawing attorney to continue in the case, Because the withdrawing attorney is unable to continue in the case, the continuance must be? granted. Because notice of the pending withdrawal was not timely given to the State,_and beCauSe, as a result, the State- suffered significant prejudice, withdrawing counsel.-and. the agencies ?were each. admOnisheda Based (n1 this admonishment, the-agendy sought to disqualify the.court. Because the court?s ruling directly flows from the contested motion in this case and because it was not delivered in a manner that State vn.Walters Case No. Decision and Order Page 1-of 37 suggeSted a bias against the agency, the motion to disqualify is denied. II. FACTS AND PROCEEDINGS The defendant was indicted for Murder in the First Degree, Murder in the SeCond Degree, Assault in the Third Degree,-and Tampering with Physical Evidence on October 12, 2017. The Public Defender Agency, through attorney Amanda Harber, entered an appearanCe in this Case on that same day. The case was assigned to_Superior Court Judge Peters. The defendant filed a peremptory challenge against Judge Peters. The .case was assigned to Superior Court Judge McConnell. The case proceeded through the- pretrial .stage in the customary fashion, the parties werking through the exchange of disbovery and investigation] In the summer of 2018, Judge McCOnnell retired. The case was later _reaSsigned to his successor, Judge Haas. The State filed ?1 peremptory challenge againSt Judge.Haas in January of 2019 and this case was assigned to this court. An Omnibus hearing was held March'ls, 2019 and the case was set for trial the week of July 22, 2019. The State requested and the court issued a certificate to secure the attendance of an ou-t?ofestate witness. Another Omnibus hearing was held. on May 14, 2019..A substitute attorney was filling in and, on behalf of State v, Walters Case No. Decision and Order Page 2 of 37 the defendant, asked to continue the Omnibus hearings because-of Continuing negotiations. The State noted that if 51 month?long continuance of the trial was needed, the State.Would net object. Substitute counsel was not able to take a position on anything beyond requesting a.continuance.of the omnibus hearing. Another Omnibus hearing Was held on June 26, 2019. At that hearing MS. Harber appeared and requested a continuance of the trial. The State?s attorney -0pposed the continuance on the grounds that arrangements. fer the out-of?state witness. were complete and the witness was.prepared to appear at the scheduled trial time. The State also :noted. that the State?s offer" had expired; that there were no communications regarding any offers; and that the case Was ready for trial. The State asked.the-court to leave trial as scheduled. Ms. Harber stated that she has :hl fact available at the scheduled trial week -but that, with leaving, her reassignment to KBnai from Bethel, and her other caseload she needed more time to handle her professional responsibilities. At that time she also indicated that perhaps there would be grounds for filing a motion challenging the grand jury indictment for murder in the-first degree. The court denied the request for the ?continuance holding that good cause 'was not established- BeCause of counsel?s State v. welters Decision and Order Page 3 of 37 familiarity with the case- and. the age of the -case, it was important for the case go forward. There 'was 'no reason to believe on the record that defense counSel would.not have been effective in handling the-case. On July 1, 2019, Ms. Harber gave the Public Defender Agency notice of her resignation, to be effective July 15, 2019. .Based CH1 her' departing, Harber _filed. a Imotion to continue- the trial. The motion. was signed on. July 12, 2019- It' was not received by the court or the State until July 15, 2019. Calendar Call was sCheduled for July 16, 2019. preSent for the calendar call as she was no longer an employee of the Public Defender Agency 'Ehe State, without notice of the pending resignation and. withdrawal, continued to prepare: for trial at great in the time period between July 1St and July The State oppoSed.the motion to-continue. The State pointed out that this case has been pending with the same counsel since October 2017; that at the March 15, 2019 Omnibus hearing, the case was set for trial the. week of July'- .22na- and no parties objected; and that the court has Continued this case a total of 15 times at the.request of the defense. Importantly, the State pointed to the great prejudice that it suffered because of failure to receive notice of the pending resignation. The: State- had' lost its attorney in this case, State.v. Walters Case No. Decision and Order Page 4 of. 37 .Bethel District Attorney "Wallace, because of his appointment to the bench. The State put. together a ?new prosecution team and that team prepared the case for trial. The State?s- attorneys traveled tjo Mountain Village, visited with the victim?s and the defendant's family, interviewed witnesses, secured out?of?state witnesses, and cleared the professional and per-Sonal calendars of the attorneys- involved. The State made significant efforts and incurred significant personal, professional, and financial cos-ts to make. sure the case was ready for trial as scheduled. The victim?s and the defend-ants family, the witnesses, and the community of Mountain Village were made to suffer the emotional upset and personal scheduling disruption. that comes with preparing for trial in a case such as this. All of this would "have been avoided had. notice been given to. the State when it was first. learned that counsel would be withdrawing. The State also pointed to the additional. prejudice of the significant delay that would result if counsel was permitted to withdraw and the case was continued. In an effort to avoid the delay and the prejudice that would. result from. a continuance, the State. asked the .court to order that Ms. H-arber not be eXcused from. the case. The State asked the court to reappoint State v. Walters Case No. Decision. and order Page 5. of 37' Ms. Barbe-r pursuant to Delisio V. Alaska SuperiOr The State asked the c0urt to order that the Public Defender Agency Contract with Ms. Harber and that the case proceed to trial as scheduled. At the scheduled.calendar call on July 16, 2019, less than one week away- from the start .of trial, substitute defense counsel, .Assistant Public -Defender'-Ms. Metzger, appeared? 'She to, like the State and the ocurt, had only one day?s notice of the withdraWal of counsel. The court attempted to contact Ms. Harber, without. success. The court contacted Acting Public Defender, Ms. Goldstein, who agreed to appear telephonically on short notice for the agency. Ms. Goldstein. expressed.?willingness to contract. with Eta Ha?rb'er at the Office of Public AdVoca-cy rate to Complete the trial. Ms. Goldstein. had attempted to contact -Ms. Harber to determine is? she would consent to continuing (n1 a contract but was unable to get a hold of her. The court set on a 'hearing fer July 18, 2019 for the 'purposes of considering the possibility of compelling Ms. Harber to Centinue in the case under contract with the.Public Defender ?740 P.2d 43'? (Alaska 1987) (holding that it was permissible to appoint a member of the private bar to represent an indigent detendant, even over the appointed counSel?s objection, so long as the attOrney was compensated at the rate of an average competent.attorney). State v. Walters Case? No. Decision and Order Page 6 of 37' Agency, because of the prejudice to the State, Mr. Walters, the victims, and the community.2 In addition, the court gave notice that it would conSider penalties under Civil Rule 95 in the form of costs-and fees as a possible remedy for some of the prejudice suffered by the State. The hearing convened on.July 18, 2019..At the hearing, Ms. Harber appeared through.counsel and took the position that she was unable to accept appointment because she had not yet set up Sher private professional office, including .not yet having malpractice insurance. The Public Defender AgenCy, through Ms. Goldstein, took the position that, because of the circumstances surrounding her departure, the "agency was not willing to contract with Ms. Harber to handle this case, The Public Defendant .Agency then went on to make institutional and budgetary arguments regarding the circumstances the agency finds itself in at this time, explaining'that: The situation in the public defender?s office is facing right now is quite dire, We are in a Catch+22 situation where, While We have the positions, we Cannot fill them. We can?t fill them because there is a retention and recruitment problem with the State and with many (NE the public defender offices around the country. What is happening is there is a plethora of jobs- legal jobs in the lOWer.48. If you take a look at the Alaska. Bai? Associaticmr employment jpage, there ;are 'a 2 Transcript, page 4 State v. Walters case NO. ?sMel7?00081CR Decision and Order Page 7 of 37 ton of legal jobs in the state of Alaska. So I have case flows which are driven partly by the fact that there is an 80% appointment rate in this state for all felonies, and that is unsustainable. So as- have lawyers leave, I have had three lawyer short in the Bethel office, which is one of the-reasons Ms. Harber took this case with her when she mOved to Kenai. I am now three a lawyer short in the Kenai-office. I?m having a hard time reCruiting. I don?t have a travel authority to go out of state to recruit; I?m trying to fight that. We had recruitments fall through for,-specifically, the Kenai office,.and we had three lawyers leave,- a'll of them attorneys IVs and Vs so those are most experienced lawyers.3 So we are ramping up our recruitment efforts; we are-reaching out more than we ever have before, but I had the deputy director for the Mexico public defender office in my office on Tuesday, and he said he?s having the same exact recruitment problems. our salaries up here uSed to be the draw, but there are plenty of public defender offiCes in the lower~48 who are offering those same exact salaries right now with lower cost of living and more stability in their government and their budget. _And so we are experience being behind the eight ball constantly, and we are doing our best.4 These institutional realities have created great pressure on individual assistant public defenders,.Ms. Harber among them, driving up their caseloads to unsustainable levels.5.Ms. Harber 3 TranSCript, page 6. Transcript,_page 7 8. It should be noted that these institutional and budgetary restraints on recruitment and retention are causing a.reduction in-the number of available assistant public defenders while, at the same time, felOny .case filingS' are increasing. .Alaska .Court -System .Filing' and Disposition reports show that in fiscal year 2012, there were 6,269 felony case filings. For fiscal year 2019, the records show that.there were '7,321. felony' ease. filings. That. is an increase of filings, an. almOSt 17% increase. And. the. seriOusnessl of. the cases being filed should not be- undereStimatedJ_ AcCording to a recent article in USA Today, in Anchorage, the violent crime rate of 1,163 4 5 State v..walters Case No. _Decision and-order Page a of 37 was handling over 200 cases at the time she resigned. In this regard the agency states-that: And Ms. Harber, in her capacity as the secondary supervisor -in the Kenai Office, 'had to take on an immense caseload, and-under the weight of that, quite frankly, she hit the wall..And she did exactly what the Bar Association has told us to She. stopped before she created incredible problems in a multitude of cases. And I have to give her credit for that.6 And so the agency is not willing to appoint Harber, because of what she had gone through. In the agency?s judgment, she is net fit to take the appointment at-this time. The-Court accepts. the .agency?s judgment. .Appointing' MS. Harber at ?this time and compelling her to proceed to trial as scheduled Would _not be in the intereSt of effective representation and justice. This court asked the agency to addreSs what appears to be a repeating? pattern exemplified by this case. This court has pending now at least three homicides, inCluding this Case, and another serious felony where, fer various reasons, late into the case, the assigned. public defender ?withdraws and the Case is incidents per 100,000 people is more than three times the national vi.olent crime rate, and the metro area' property crime rate of 5, 441 incidents per 100, 000 is more than double- ithe national property crime rate. The same article reports that Fairbanks has the sixth highest property' crime rate among ?metro areas at 4, 664 crimes per 100,- 000 people. It also has the second highest murder rate in the country, at 28.4 homicides per .,100 000 people more than five times the U. S. murder rat.e- usatoday. raise ?children? family? education crime/39929727/ 6 Transcript, page 6. State v. Walters Case No. DecisiOn and order ?Page 9 of 37 delayed significantly.7 The agency responded_ to the court's concerns as follows: We - I knew that you are frustrated with the number of lawyers that have left, perhaps cloSe to trial, beCause their senior, but the public defender agenCy Can?t keep lawyers from leavingt We do our best to retain them. We. provide as much training as we possibly can under the strictures of a very-difficult budget; at this 'point in. time, _and if I had. other Options, I would. If I could fix-this problem for you by assigning two senior attorneys to every homicide, I?d do it, I don?t have the resources to do that. And that is just going' to create more problems with caseload.8 The State does not take exception with any of the institUtional. arguments ?of the Publit: Defender .Agency. Indeed the State. sympathizes. The Bethel District Attorney?s office suffers the same understaffing; this is why- the State?s attOrney, Ms. Bachmannr .is assigned. to this case; The. Bethel District.Attorney?s office was down three lawyers as this case Was coming to trial and it was without a District.Attorney. The exception the State does take is. that, because they were not given timely notice of the- withdrawing attorney?s 7 See, State v. Williams, (nineteen months into the case, new coilnsel arrives due to' attOrney departure, continuing the case at- least one year); State-v, Gilbert, (fifteen months into the case, new counsel arrives due. to attorney departure, continuing the case nine months); and-State: Robbins?C-ritchl?e?y, (sixteen. months into the case, two Weeks before trial, new counsel enters the case due to conflict, delaying the case for over. a year}. In addition the court has. been Irecently assigned. a serious unclassified felony case, State V. Rivers, where aft-er the caSe was pending for nearly three years, new Counsel arrives due to attorney departure, continuing the case for likely one year. State v. Walters Case Decision and Order Page 10 of 37 resignation, great unnecessary prejudice adorned. Had.they been give notice, the State wOuld not have. gone .to Mountain Village to visit with the witnesses there and would not have upset the live-S 0f "the Peeple of that community. They would. not have made- the arrangements for travel and. they would not have made" the efforts to reorganize. their personal and _profeSSional commitment-s so that they could fulfill their obligations in this case 9 The State?s main exception was put as follOws: And with all due respect, the lack of Courtesy from those who knew that this was likely happening in the Bethel D.A.s office, is a little jaw?dropping, and I know that these folks can do better, .and I?m disappointed that they didn?t.10 'The Court invited 'the State to Submit -a cost bill aSsociated with the unnecessary trial preparation, but the State declined that remedy. The State is reluctant to Hmmetize this issUe, believing that imposing Civil Rule 95. costs would not enhance the health of the relationship that the Department of Law has with their sister agency. ,At the hearing on the motion to continue, for the reasons set forth in this Decisioh and Order, the court granted the continuance oVer the State?s objection and found that there was 8 Transcript, page 7. 9 For eXample, one of the State?s lawyers cut short a visit with close relatives in order to assist in preparation for trial..Another took an unscheduled, brief mental health break so that he would.be refreshed and_Could dedicate himself to trial, 10'Transdr-ipt, page 10. -State v. Walters 'Case No, -Decision and Order Page 11 of'37 attorney misconduct by' failing to adVise the State of the -assigned attorneyS? .departure. 'The Court deClined to impose Civil Rule 95 penalties. The court admonished Ms. Harber and the Public Defender Agency for both the prejudicial withdrawal and failure to provide notiCe. Following that ruling and admonition, the Public Defender Agency filed a Motion to 'Disqualify -this court citing bias against the agency and the defendant. The motion contends that the findings in support of the ruling and the manner of ruling reflect an actual or apparent bias against the agenCy, all its attornEys, and the defendant. DISCUSSION -A. Motion to Continue Deepite the prejudice to all inyolved including the State, Mr. Walters. the-'victim, and the community, the motion to- continue the_trial must be granted. The withdrawing attorney is *no longer With the Public Defender Agency. The agency is not willing to contract with the attorney for purposes of continuing the trial on time. The agency is in a better position than the court to Inake this judgment and so the court defers' to. the agency?s judgment in this regard. The- withdrawing' attorney?s current circumstances do :not- permit. her? to try -this case as Scheduled- State. v. Case.No. Decision and Order; Page 12 of 3? Civil Rule 95 costs are appropriate for the failure to give the State timely notice of the withdrawing attorney?s departure. The State declines that remedy in the interest of harmonious relations with their sister agency. Accordingly, no costs will be.asseSsed. This court rejects the contention that it cannot compel the withdrawing attorney to proceed to trial as scheduled:L1 If the Public 'Defender Agency .is not willing to contract with the 'withdrawing attorney, then. the court can pay for continued representation under Administrative Rule 12. But the court accepts the contention that Ms. Harber is not fit.to handle this case at this. time. The court accepts the proposition of her mental exhaustion. and. ?inds 'her zethically' unfit, lacking the professional responsibility? fortitude necessary in this case. The defendant deserves more. The criminal justice system deserves more. It would be a futile exercise to compel this case to trial with the Public Defender Agency and.Ms. Harber resolved that proceeding trial would km! an exercise :Ui ineffectiVe assiStance of Counsel.12 1? See, Rules of Professional Conduct, Rule 1.16 lawyer must cOmply' with. applicable 1aW' requiring? notice- to or? permiSsion. of a tribunal when terminating a representation, When ordered to-do so by a tribunal, a lawyer shall COntinue representation notwithstanding good cauSe for-terminating the representatiOn.? 12 The court characterized this ?ine?fective asSistance? argument as the last refuge of defense attorneys who seek continuances because, once invoked, there is: little a" court can do but ascept the State v. Walters Case No. Decision and Order Page 13' of" 3.7 Ms. Harber is admdnished for her professionally irresponsibility. Notice of the pending withdrawal should have .been_?made; The 'unsustainable caSeload that resulted in this withdraWal should have been managed earlier. Attorneys have a duty" not to take. on. unsustainable caselOadst:3 The 'withdrawal itself should have.been managed more professionally. Withdrawing .attorneys have a duty to protect their client?s interests while 14 The defendantts.interestS'in a speedy trial and in withdrawing. avoiding pretrial insarceration are not protected with this withdrawal. Greater fortitude and greater professional responsibility is required by the rules. Whether Ms. Harber- is generally fit to practice law will not be- resolved in this motion. 'It is _sufficient that the agency?s position is that Ms. Harber is not fit to continue in profesSional representation in this regard and grant a continuance,.no matter ?Whether? there is good cause .for?.not being? prepared gand.'no matter how'systematic the requests for delays-become. 13 See, Rules of Professional Conduct, Rule 1.3, lawyer shall aCt With reasonable diligence and promptness in representing a c?ient.? The. commentary 'to the rule' states: lawyer's work?loatl must be controlled so that each matter can be handled competently." ?Perhaps no professional shortcoming is -more widely resented than procrastination. A client?s interests often oan.be adversely affected by? the passage of time or- the. change of' conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client?s legal position may? be. destroyed. Even? when 'the client's interests are net affected in substance, however, unreasonable delay can canse a c?ient needless anxiety and undermine confidence in the lawyer?s trustworthiness.? 14 See, Rules of ProfeSsional GondUCt, Rule 1 16(d) ?Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client?s interests, such as giving reaSOnable notice to the client, allowing time for employment of other counselm" State v. Walters Case No. Decision_and Order' 'Page 14 of 3? this case and 'that 'they' would not assign this case. to her beCause of her mental exhaustion. The Public Defender Agency is admonished for not advising opposing counsel of the withdrawal in a timely manner. And the court notes that to the extent the agency imposes unsustainable -caseloads on their attOrneys, the-agency violate the prohibition against unaustainable caseloads set forth in Rule 1.3 of the _Rules Professional Conduct. The court vacates: the scheduled trial. Ms. Harber is excused. The court has considered -whether .a report to Bar Counsel is required under the applicable judicial cannon:LS and finds that no further report is required. The- appropriate authority' for?_referral of DEL Harber?s conduct is the _Public Defender Agency. The .agency is fully- advised of the circumstances of this case and the court_defers to the agencyis judgement. B. InstitutiOnal.and Budgetary Limitations As part of the motiOn and opposition, both the Department of Law and the Public Defender Agency's cite institutional and 15 See. cannon. judges having information establishing' a likelihood that. a .lawyer has violated? the Rules of Professional Conduct shall take appropriate action. A judge who obtains information establishing a likelihood that a.lawyer has cemmitted a violation of the Rules of Professional Conduct by'an aCt of dishonesty, obstruction of justice,-or breach of fiduciary duty shall inform the appropriate disciplinary authority, unleSS the judge reaSonably believes that the misconduct has been or will otherwise be reported.? State v. Walters CaSe No. Decision and Order Page lS-of 37 budgetary limitations that are the product of political decisions that 'are affecting their- ability to meet their professional obligations 'to the 'people of Alaska. Both cite vacancies .in their offices due to retention and recruitment difficulties. In addition, the Public Defender Agency points to traVel restrictions imposed on their agency. These limitations reflect political and administrative choices of the legislative and executive brandhes that are beyond this court?s jurisdiction- But the record in this case should reflect that the current politiCal and budgetary choices have conSequenCes and those consequences are manifest in this case, These consequences of these policy choices include the failure to uphold the victim?s and the defendant's rights to a timely The people of Alaska, and.the people of the Yukon?Kuskokwim-region, should.kn0w that the delays in this Case 'are the consequences of these choices. The parties? .positions in this case establish- that 'the State of Alaska?s criminal justice system is operating On the fringes, barely able- to protect against the deprivation of ?:At some point time, if thoSe choices go beyond legitimate political choices and..become intentional impairment "of fundamental rights of victims and _defendants{ the court Can. act as necessai?r to ?protect those rights. The circumstances in this case do .not -rise to that level. State v. Walters Case No. Decision and Order Page 16 of 37 fundamental rights, barely able to respond jll'a professionally responsible ?manner to .AlaSka rising' violent crime rates. The record ?ll this Case should. reflect that, as--a :result: of the policy and budget choices made by the legislative and executive branches, the people of Alaska must tolerate years long delays in the prosecution of the type of Crimes charged in.this case crimes against Women, crimes fueled by substance abuse, crimes against law enforCement officers, crimes against rural Alaskans, crimes 3perpetuated. by? repeat offenders. The. people of ,Alaska should know that the Department of Administration, and to some extent the.Department of Law, is unable to manage these vital interests. in. a-;professionally' responsible way"because of the political and budgetary choices that are being made. The Court accepts that institutional and' budgetary restraints are at the core of' the Public Defender .Agency?s limitations. _The court takes no -position on those political choices except to point out how they manifest themselves in this case and a Systematic way 5J1 many other cases across the state. The courtfs findings in this regard have no bearing on the conduct of the Public Defender Agency or the defendant. C. Internal Agency-Management The Public Defender Agency is correct that these political -and.budgetary limits are beyond their control, The-court accepts State v. Walters Case_Nor DeciSiOn and Order Page 17 of 37 that the agency is doing the best it can to manage their responsibilities in the face of rising crime rates, rising case assignments, and retention and recruitment problems. And the Court_finds that the agencies? choices2are.not unreasonable. But the current approach is just not Working. Assigning 200 cases to an attorney, including serious felonies such as this, and pushing the attorney to the point of exhaustion, is not a sustainable strategy and is.;inconsistent -with the 'Rules--of Professional Responsibility. And as a practical matter, the plain. result is yet another vacancy. The, time demands of cases such as these are too great_for such a Caseload. As (iiscussed. above, this is not an isolated. instance of late-Substitutions causing serous delaysl Attorney substitutions late in serious cases are a systematic _problem. These substitutions result in lOng delays. When a new attorney enters a case, it is. expected that the new attorney will to need to -familiarize themselves with. the case and: formulate their? Own view on the-case. This-often involves reviewing large amOunts of documentary and digital evidence, including significant amounts of audio and video evidence. This takes a great deal of time. The new attOrney will need to devise their own approach, will need to consider their own metiOns, and will need to do their own investigatidn. In.Short, start over. As ea result, a case State-v. Walters Case No. Decision and Order Page 18 of 37 sudh. as this can. be delayed another -year. And because of retention problems, by that time the new attorney is at risk of the case. This is contrary to time duty of attorneys and the agency to expedite litigation.17 The court accepts that attorney departures are now part of the natural vicissitudes of the agency?s operation, And the court accepts that the agency cannot stop attorneys from leaving..But if attorney departures are now a standard hazard, then new management practices must evolve to address this new reality. An alternative.approach might be to insulate attorneys with serious felOHies from dealing with lesser oases. Often, as the Court is trying to "address -serious cases with .significant delays, it happens that the same attorney is tied Up in District Court tending to misdemeanors, Not that th0se cases don?t have merits, but there: is a management choice to be. made. Very serious Cases such as this deserve priority and the attorney?s .handling these cases deserve ;protection. from .overbearing caseloads. If cases are to be walked away from, better it be lesser cases. If a defendant is to be abandoned, better choices can be made than the defendant in this case- See, Rules of Professional Conduct, Rule 3.2, laWyer shall make reasonable efforts to expedite litigation consistent with the interests of the-client.? State v. waiters Case No . 17-000 8 DecisiOn and_0rder Page 19 of 37 This 'pattern._must 'Stop. The 'Public _Defender' Agency' must take another course of action, It c0uld hire more censcientious -attorneys; assign the mest .serious caseS' to the' most conscientious attorneys; insulate those attorneys from petty ndsdemeanors cur cases of lesser importanCe than these serious cases; and they Can commit to-getting serious felonies to trial in the first year of their life or within six months of all the evidence 'being in, to guard againSt the risk of losing the assigned attorney retention limitations. These are eaamples of a different choice. This court is in no position to advise the Public Defender Agency what choices to make .and does not intend. by these findings -to interfere "with :the -administration. of the agency. These alternative possibilities are given as examples of action that might .be: taken. 'These. alternatives are identified for purposes of the court?s rejecting'the centention that there is nothing to-be done. The agency should.not just surrender with.an ineffectual rising of hands. There are other apprOaches. The interests present in this CaSe could not be higher. The indictment alleges fatal domestic violence, EH1 offense againSt not only the victim, but also the peace'and dignity Of MoUntain Village and the entire Yukon?Kuskokwin region. Violence against domestic partners. violence against native women. and violenCe state v. Walters case.No. 4sm~27e00081cn Decision and order Page 20 of 37 against. law enforCement officers are all interests that are present in this case. Attorneys assigned to cases like this are called upon to.take on significant professional responsibilityi They' are required. to Imarshal significant gprofessional courage enui must. devote significant time to these cases; Management choices could and should be made to give attorneys assigned to these cases protection from unsustainable caseloads and the distractiOns of less serious cases. But those choices belong to the agency. D. Further Proceedings The Case must now be reset for trial. New counsel will be giVen the necessaigr time to review -the case= and formulate a _position on Enrther proceedings, The; Court notes that the motitnl deadline has :passed. in this_ case. The' court ?will gnot accept any motions at this time, eXcept with a motion to accept late filing. The court advises new counsel that this case should move to the top of counsel?s professional responsibilities. If there are other Cases of this Seriousness that are older than this case, then this case would yield to the higher or equal priorities of those. that are 'olderu The court leaves; it. tc:.new* CounSel to formulate a position on further proceeding in this Context. State v. Walters Case NO. Decision and Order Page 21-0f 37 But there is ap.jmmediate need in this case that must be addressed.'without. delayu The State Contends that there :Ms an elder in the village, related to the defendant, who is old and frail and conflicted and who needs to be deposed in order to perpetuate her testimony. This is- an example of the prejudice.- from the continuance. that must be mitigated. The parties are instructed to confer'to determine if an agreement can be reached regarding the deposition. If no agreement can be reached, then the court will resolve.any differences. New defense counsel is given-till the next hearing in this case to attempt to formulate a positiOn with regard. to the State's. motion to take this deposition. E. Motion to Disqualify AS prevides that a judicial officer may not act in a matter in which ?the judicial officer feels that, fOr any _reaSon, a fair and impartial decision cannot be given." Canon provides that: Unless all grOunds for disqualification are waived as permitted by Section a judge .shall disqualify himself or- herself in a proceeding in which the judge?s impartiality might reasonably be questioned, including but not limited to inStances where: the judge has -a personal bias or prejudice concerning a_party or a party?s lawyer m. Mere evidence that 51 judge has exercised. their' judicial discretion. in. a ?particular? way is not sufficient to. require State v; Walters Case DeciSion and-Order .Page 22 0f 37 disqualification,18 Even incorrect rulings against ai_party do not show bias in.and of themselves;? Disqualification was never intended to 'enable a discontented. litigant to oust a judge because of adverse rulings made."20 In Hanson vi HEnSon, the Alaska Supreme Court noted that ?[tlo succeed on a Hmmion to disqualify a judge for bias, the movant inust show' that the judge?s actions Were. the result of "21 The court personal bias developed from a nonjudicial source. went on to explain that ?as a result, a judge is not disqualified if "knowledge. and the opinion it produced were properly -and necessarily acquired in the course of the proceedings ?u"22 There is an exception to the extrajudicial source doctrine for a narrow category of judicial Iremarks. As the court explained in Hanson ?[t1he primary exception to the ?extrajudicial source? doctrine exists when an opinion, even though it springs from the facts adduced or the-events occurring at trial, IE iS-smj extreme an; to display clear inability to 13 State ma City'taf Anchorage, 513 P,2d 1104, 1112 tAlaska 1973), overruled on other grounds by'State v; Alex, 646 P.2d 203, 208 n. 4 (Alaska.l982). Greenway v. Heathcott, 294 P.3d 1056, 1063 (Alaska 2013). 2? waSSerman V. Bartholomew, 38 P.3d 1162, 1171 (AlaSka 2002) (fectnote and internal quotation marks omitted). 21 Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (quotation and citation omitted). .22. Id. State v. Walters Case No. Decision and.0rder Page 23 of 37 render -fair judgment.?23 In. Phillips v. State, the Court of Appeals assumed that ?Alaska law mandates diqualification of a, judge when the circumstances give rise to a reasonable appearance of bias, even when.there is no proof that the judge is actually biased "24 Phillips was decided in 2012. Since then, the_Alaska Supreme Court has issued a saries of decisions that make clear that the. appearance of bias forms .an independent basis for mandating redusal.% The test fer asseSsing whether there is eni appearance of bias is as-follows: The judge who is asked to recuse themselveseand .later, the reviewing- court?must gauge- whether someone who was apprised of the situation would reasonably* suspect that the: judge?s ability- or willingness to idecide the. case fairly 'WOuld Jbe compromised by the jUdge?s 'feeling about, or toward, the other person?-6 23 Id. Also see, Downs v. Downs, 440 P.3d 294, 299~300 (Alaska 2019), (?We haVe repeatedly held that a party must demonstrate that the court formed an unfaVQrable opiniOn -of the party' from extrajudicial information and. that .bias Cannot ?be inferred. merely' frOm adverse rulings,? But judicial bias 'may. also arise during the course of judicial._proceedings? if judicial, officer' hears, learns, cm: does something -intrajudicially ?so ?prejudicial .that further' participation would be unfair." Phillips v. State, 271 P.3d 457, 466-67 (AlaSka App. 2012). 5 see, Snider v. Snider, 357 P.3d_1180, 1182 (Alaska 2015); Heber v. -Heber, 330 P;3d 926, 933 (Alaska 2014); Greenway In "HeathCOtt, 294 P.3d 1056, 1062?63 n.7 (Alaska 2013); GriSWOld v. Hemer City council, 310 P.3d 938, 941 n.6, 943 (2013). Alec see, Downs v..Downs, 440 P.3d 294, 2994300'(A1aska 2019). taillips v. State, 271 3d-457, 469 (Alaska App. 2012). State v. Walters Case NO. Decision and Order Page 24 of 37 This is an objective standard, based on 'a fair~minded The. Alaska Court of Appeals reciently- used somewhat different language to articulate essentially the same standard: As to What sort. of appearance of bias will require a judge?s disqualification, we note that the Comment to Alaska Judicial CanOn 2A declares that the test is ?whether the [judge?s] conduct -would create in reasonable. minds a perception that the judge?s- ability in; Carry' out judicial responsibilities with integrity, impartiality, and competence is impaired.28 Alaska Courts have held that where only the appearance of partiality is alleged, a ?greater showing? is required of the moving party.? As for what sort of appearance. of bias will require a judgels disqualification, the .Alaska Supreme Court held: [T]he- test is ?whether the [judge's] conduct would create in reasonable- minds a perception that the judge's ability to carry out judicial reSponsibilities with integrity, impartiality, and competence is impaired.? to be ?patient, -dignified, and courteous to litigants?, judges are generally not required to remove themselves from a case simply_becau$e they have made remarks that are critical of, or even hostile to, an attorney or a litigant.30 AlthoUgh.Alaska Judicial Canon requires judges The Alaska Supreme Court in Hanson quoted with approval the 'United States Supreme Court?s opinion in Liteky v. Uhited States: 27 wasserman v. Bartholomew, 923 P.2d 806, 816 (Alaska 1996). 23 Crawford v. State, 333*? P.3d 4, 33 (Alaska 2014.). 29 Shider v. Snider, 357 P.3d 1180, 1187 (Alaska 2015); Greenway V. -H?ath00tt, 1063 (Alaska 2013). State-v. Walters Case NC). Decision and Order Page 25 of 37 [JJudioial remarks during the oeurse of ?1 trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, Ordinarily do not support a bias or partiality Challenge. They may do so if they reveal an Opinion that -derives from an extrajudicial -souroe; and they will do so if they reveal such.a high degree or favoritism or antagonism as to make fair judgment Net establishing bias or partiality, however, are expressions of dissatiSfaotion, annoyance and even. anger that .are- within. the boundsr of what imperfect men and Women sometimes display.31 The .Alaska Supreme Court 'has Observed that. a loss of judicial temperament such as a rising of the judge?s voice,'may frustration, but it does not.neoessarily establish that the judge had a.personal bias against a party Or counsel arising from a.IKxhjudioial source. At times, a judge may give the appearance of being hostile toward a party and repeatedly express their displeasure with a party, but this does not establish that the judge aoted from any personal bias, or that the judge's statements and actiOns give rise to an appearanCe of bias that -warrants disqualification from the 32 Case. Expressions of impatience, dissatisfaction, annoyance and even anger, whioh are within the bonnds of what imperfect men 3? crawf-ord v. State, 337 P.3d 4-, 33. (Alaska. App. 2.014.). 31 Hanson_v._Han30n, 36 P.3d 1181, ll84 (Alaska 2001) (quoting Liteky v. United States, 5.10 11.8.. 540, 555?56, 114 1.147 (1994)). 32 Crawford-v. State, 337 Pg3d-4, 33 (Alaska App. 2014), State v; Walters Case NO. Decision and order Page 26 Of 37 and women sometimes display, do not establish bias or 'partiality.33 In the present case, this court?s Decision 'and Order granting the Continuance, deClining to impose sanctions, and 'admonishing? the withdrawing_ counsel and the Public Defender Agency" is based. on the facts- of the case, developed..on; the record, in open court, with the defendant present. Each of the court?s Set of findings was based on factual propositions and issues raised by the parties. Central to the .motion to continue the trial and the opposition thereto was the undisputed facts surrounding 'the departure of the withdrawing attorney. There was no diSpute of fact regarding the withdrawing attorney?s and the agendy?s failure to notify opposing counsel of the attorney?s departure. The prejudice to the State, the victim, the witnesses, and the community of Mountain. Village was not contested. That it. was wrong to not notify opposing counsel of the departure was also not-contested. The court?s admonishment of the attorney and the agendy Was based on these undisputed facts, established-on the record.in Open c0urt, The 'admonishment naturally follows from the uncontested facts. It does not reflect any bias or antagonism 33 Luker v. Sykes, 35:7 P.3d 1191, 1199 (Alaska 2015). State v. Walters Case No. Decision and Order Page 2? of 37 toward the attorney or agency. It is an inesCapable conclusion based. on undisputed. facts. Even the agency .agrees- that the failure to Intify should not have happened. Their position is Only that it is unaVOidable becauSe of institutional -and budgetary realities that effect attorney retention. In-defense of the motiOn, the Public Defender AgenCy, and to some extent the Department of Law, raised specific institUtional and budgetary arguments in defenSe of their position. Each .of' the Court?s findings with regard to the institutional and budgetary restraints on the agency is made in reSponse -to arguments advanced .by the agency. They are. not extrajudicial. Indeed. the. Court acCepts the representation._made by? the Public Defender Agency and the Department of Law with_regard to these institutiOnal and.jbudgetary' limits. Thea court?s- central holding with regard to the political and administrative arguments of the agency was that these questions.are beyond the jurisdiction; of the court to remedy. .At the same time, the agency' is right. to raise them. The court?s findings in. this regard support the Public Defender- Agency?s position the 'current institutional and. budgetary' policies of- the State {of Alaska impair the Public Defender Agency?s ability to do their jobs in a responsible way. These political and administrative; State v. Welters Case no. DecisiOn and Order -Page 28 of 3? choices.are manifest in this caSe in the fOrm of LumeaSOnable delays and disruptiOns. The.ooUrt?s findings in this regard are Supportive of the agency; The court?s findings with regard to the issues presEnt in this 'case -and the types of .crimes charged in- this case are derived from the indictment and the record of pr0ceedings. This case raises many important criminal justice issUes intrinsic to fatal -Crimes .of +domestic "violence :hi rural_ Alaska; it 'raises important constitutional issues? concerning .the ?victim?s .rights to timeLy disposition; and ii: raises important constitutional issues concerning the defendant*s right to a speedy trial and to not being held in~custody for years, pretrial, TheSe are not prejudgments of the defendant} They are the facts -and issues of the crimes charged. The point of these findings is that, if these important public interests matter to the political and budgetary decision makers and the pUblic, they should know that the current policies do net protect or advance these interests. These findings go to the political and budgetary? arguments of the :parties. It; is important that. the court respond to those arguments. The court identifies how those policies Iare manifest in this case. These policies -manifest themselves to the detriment of the defendant, the victims, and the publicr State v. Walters Case. NO -. 00 OBICR Decision and Order Page 29 of-37 The judgment of the court is that the policy decisions of the legislative and eXeCutive branch have left the Public Defender Agency, and to a large extent the Department of Law} unable to meet their 'Obligations reSponSibly. This is the position the Public Defender .Agency took on the. motion. The coUrt agrees with that position. These findings have no bearing on the agency or on the defendant. These .findings do not amount to a_ prejudgment_ of the defendant. in this case and are not an interference with the defendant?s'presumptiOn of innocence. The court makes no comment on the guilt or'innocence of the defendant. As made plain by the Court from the 'beginning :to 'the end_ of? the hearing on the motion, among the interest being sacrificed in this case is the defendants right to a timely trial. He is being held in-custody and is facing very serious charges. He deServes a trial without further delay. With regard to the internal agency management issues raised by the Public-Defender'Agency, the cOurt is clear that it is not telling the agency how to manage its affairs or what choices to make. The. court. merely' rejects. the jprOposition. that. there. is nothing to be dOne. The court sets forth other conceivable alternatives and tradeeoffs as possible alternatives, The court State v. Walters Case" NO. Decision and Order 'Page 30 of 37 does not intend to suggest that the agency- Should do these things, only that there are other choices. It is the court?s judgment .that it is ibetter for' other defendants in. other cases to be shorted on the- precious resources. These very serious: cases, with defendants who have been Waiting inncustody for over a year for their trial Should be given a priority in the court?s judgment. This judgment is based on the arguments of counsel and the record in this case. It is not a vdm?eSale criticimn of the Public Defender Agency and all its attorneys! It.is not evidence of a deep-seated bias against the agency. This court's knowledge of the case and the decision and order it produced were properly and necessarily acquired in the course of the proceedings. They were reSponsive to the arguments On a contested motion. In fact, the court granted the. public defender agency?s motion; the court accepted the public defender agency?s positidn with regard to counsel; and the Court did not impose sandtions which.clearly would.be justified. These-judgment?s do not suggest a bias. Indeed the court agreed with the Public Defender Agency in virtually all respeCts. Judges take no pleasure in admonishing attorneys. But 'motions such as the one before the court sometimes squarely call for findings critical of attorneys. Judges are responsible for State-v} Walters . -Case No. Decision and Order Page 31 of 37 keeping cases -on track. Judges routinely deal with repeated struggles to have discovery produced in a timely manner or with repeated Struggles to avoid-the delays based on claims of lack of preparedness. TheSe case management struggles are part of the judicial offieer?s responsibility. A judge cannot simply acquiesce to delays that extend caSes for years while defendant?s wait in custody and the victims and witnesses are repeatedly ready for trial then delayed. Judges are.required to make findings with regard to the causes of the delay. Judges carry' 'out: of this reSponsibility' frequently, sometimes admonishing parties for late discovery or motions and sometimes admoniShing both prosecution and defense attorneys for repeated delays. This does not mean such judges have a deep- seated bias against the parties and attorneys admonished. It is simply the nature of the judicial role. The last of the arguments in the Motion to Disqualify is that the manner of the cOurt?s. ruling suggests -a bias. But nothing in the manner of the court ?5 ruling? suggest any such thing. The court?s findings were delivered at the hearing on the motion in a deliberate, direCt, and measured tone. There Was no raised voice and no passion. There is nothing to suggest that the courts findings are so extreme as to display clear inability to render fair judgment. =State v. Walters - Case No. QSMH177000810R Decision and Order Page 32 of 37 The issues preSent in this -case are complex, personal, institutional, and political. The court.is careful to try-not to overstep any of these boundaries. The court does not criticize the attorney or the agency The Court?s findings are not a total indictment of the withdrawing attorney, the agency, or all public defenders. Indeed, the implicit facts of this case are 'that. Ms; .Harber' has been Ihandling .hundreds of. cases for years in a professionally responsible manner and the Public Defender Agendy is handling thousands of cases each year in a professionally responsible manner. There is.1u) reason for any court to. hold .a deep seeded resentment against the Public Defender'AgenCy Or any of its attOrneys. on the whOle they are to be. commended for all they do in- the face of serious institutional limits. The cOurt?s findings are" limited to the. specific prefessiona1.failures and the specific prejudice caused in this-case as set forth in this decision. It is argUed that the length-of the court?s ruling shggests bias. But the court is obliged to explain its decisiOn and to make the necessary findings and orders sufficient to grant a continuance over the objection. The court is obliged to explain Why it declines to compel withdrawing Counsel to continue-in the case and why it declines to impose sanctions; The court is required to explain to the defendant, the. victims, the State v. Walters case No; Decision and Order Page 33 of 37 witnesses, and the affected Community- why this case is being 'delayed. The Court is obliged to address the arguments raised, .both in the-findings and in the analysis.34 The courts findings made during the course of the hearing on the motion are tied to the motion. To the extent they are critical or disapproving- of the: withdrawing attorney or the agency, is because that is how the motion is framed. Although critidal and disapproving on the facts of this case, the findings are. not hostile to counsel, the agency, or the defendant. These findings do not suggest sudh a high degree of antagoniSHL-as 'to 1nake fair' judgment. in. this case impossible. They' are' not so extreme as 'to display' a Clear inability to render fair judgment. The judgment of the court on. the motiOn -is- not -an expresshmi of impatience, diseatisfaction, annoyance, or anger with the withdrawing attorney or the Public Defender Agency. The court has worked ?or more than a decade with the attorneys of the agency, sometimes denying request fer continuances -and 34 The motion argues that the court*s not permitting further argument after the court issued its ruling is evidence if bias and intemperance. It is true "that after? the: court?s ruling, the .Acting Public Defender wanted to argue the motion-further. It-is this Court?s custom, in-all cases and with all parties and counsel, to not permit fUrther argument after a ruling. The preper'procedural device is a motion for reconsideration. The court invited such a motion, but one was- not filedd This_ procedural position. is: based on this court's understanding of the Rules of Civil Procedure and, applies to all State v. Walters =Case.No. Decision and Order Page 34-of 3? sometimes compelling caSes to go to trial. This is just anOther instance of a common motion. The findings in this case are_just the matters of fact.of this case. The oeurt would be happy to acquiesce to the request for reassignment so that the specter of the Motion to-Disqualify can Ibe removed. But there is no just cause. A judge has a duty to sit in cases as 'assigned. Judges cannot grant motions to disqualify The Alaska Supreme Court has stated: In .Alaska, a. judge has an obligation not to order disqualification ?When there is no occasion to do so." Trial judges are often called upon to compartmentalize their decisions?to review evidenCe that is later declared to be inadmissable or to rule on similar legal issues at different stages of a contested case. Generally, these decisions do not create an appearance of impropriety unless the judge.hears something or does semething so prejudicial that further participation would be unfair to the_parties.35 In the absence of a valid reason for disqualification, this court has a duty to remain on this There being no basis for recusal based 0n actual or apparent bias, this court must deny the Motion to Disqualify. _parties and all counsel in all cases, It is not indicative of any bias against the parties or counsel in this case. 35 Grace L. v. State, Dept. of Health 62- Social Servicies, Office of Children?s.Services. 329 P.3d 980, 989 (Alaska 2014)- 3-6 See, Phillips v. State, 271 P.3d. 457, 4682?69 (Alaska App. 2012}. (The duty to sit is not ?a countervailing consideration that must be weighed against-a valid ground for diSqualification.? ?Judges have a duty to carry out the tasks assigned to themein particular, the duty to_preside over and decide the caSes assigned to them?unless there is good Cause for judge?s recusal. But if there is good cause. then a State v. Walters Case No. Decision and Order Page.35 of 37 IV. Conclusion Because- the Public Defender AgehCy' is not prepared to contract with the withdrawing attorney to continue to Zhandle this case and because the withdrawing attorney is not fit to continue at this time, the Motion to COntinue must be granted. The State has- suffered _prejudice because of the failure -to notify of the withdrawal in :a timely- manner, but because the State declines to ask for CiVil Rule 95 penalties, no costs or fees are -imposed. Because the withdrawing attorney and the Public Defender' Agency? did not provide notice to Opposing counSel of the pending -withdraWal when doing so would have avoided significant cost and prejudice, withdrawing attorney and the Public Defender' Agency are admonished. Because the admonishment.neoes3arily follows on the facts of the motion in this case and was not delivered in a manner that would Suggest an actwal or apparent bias, the motion tx: disqualify muSt be denied. V. Orders Accordingly, IT Is HEREBY ORDERED that the- Motion to Continue is _granted. judge has a duty to acknowledge the disqualification and remove: 'themself from the case.") State v; Walters Case No. Decision and Order Page 36 of 37 IT IS FURTHER ORDERED that no Civil Rule 95 sanctions will be imposed. Ms. Harber and the Public Defender Agency are admonished for failing to notify opposing counsel of the pending withdrawal in a timely manner. IT IS FURTHER. ORDERED that the Motion to Disqualify is denied. JR DATED this .730 day of August, 2019 at Fairbanks, Alaska. Michael A. MacDonald Superior Court Judge i I certify that on, ##oopies of this :HQ: State v. Walters Case NO. 48M-17-00081CR Decision and Order Page 37 of 37