How Alaska Lawyers Can 'Bump' Judges from Cases
Just about everyone involved with the justice system in Barrow has an office in a large brown-and-green building, a block from the icy waters of the Arctic Ocean.
Judges, a prosecutor and defense lawyers, probation officers and social workers: they all are separated by a few steps.
While the collection of office neighbors may seem odd, the arrangement makes life easier for everyone involved, according to Superior Court Judge Michael Jeffery. “If someone forgets a file in their office, they can just walk down the hall and get it,” he said.
Something as simple as a forgotten document in other rural communities like Kotzebue could prompt lengthy delays, Jeffery said.
But the logistics of some cases in Barrow are not always as simple as running down the hall.
FROM GREAT HEIGHTS
Journeys over snowy, varied landscapes have become familiar for Jeffery since he took the bench in 1982. “Barrow–Anchorage–Nome or Barrow–Anchorage–Kotzebue,” he said, referring to the flight paths he has followed a forgettable number of times.
Jeffery presides over the Second Judicial District, which sprawls across the top third of Alaska, covering a land area larger than California but composed of a population numbered in the tens of thousands.
Judges like Jeffery routinely lose a few days traveling to the their colleagues' courts to pick up cases, many times because of a rule called a peremptory challenge.
In most states, including Alaska, lawyers can remove a prospective juror without giving a reason. But lawyers in the Last Frontier are also able to remove judges through a similar process.
“The rules in the statute allow them to do that for no reason, or any reason at all,” said Nancy Meade, general counsel for the court system.
Lawyers get one bump – as it is commonly called – per each case. They must be requested no later than five days after a judge is assigned.
While the Alaska Judicial Council describes the intent of the decades-old rule as an effort to ensure a litigant’s access to an unbiased judge, an idealistic pursuit of impartiality is not always the reason a judge is bumped.
Because lawyers are not required to give an explanation, motivations for specific bumps are rarely known.
“People may have unusual reasons for thinking someone would be unfair for them,” Jeffery said. “Who knows?”
Speaking in general terms there are plenty of reasons.
John Skidmore oversees criminal prosecutors for the Alaska Department of Law. He said the reason for a bump could be as simple as a lawyer and a judge not getting along.
Anchorage defense lawyer James Christie said the goal of a bump by a defense lawyer is usually to make sure a client gets the same outcome as other similarly-situated defendants and to avoid judges perceived as too harsh.
(The Public Defender’s Office did not respond to requests for comment by KTUU.)
Judicial retention records show that new judges with unproven track records are commonly subjected to challenges by defense lawyers and prosecutors at higher rates than seasoned members of the bench.
A single challenge can be absorbed without trouble, even in distant courts like the Second Judicial District.
But problems arise when there are “blanket challenges,” a tactic sometime used by the Department of Law or the Public Defender Agency removes a judge from every case to which they are assigned.
Those offices handle huge volumes of cases.
"Recent history is that certain judges have been blanket preempted by the district attorney’s office," said Christie, the defense lawyer. "It removes all criminal cases from that judge's docket."
Kenai Superior Court Judge Anna Moran was removed from 105 cases by prosecutors in 2008, much higher than the average for judges up for retention in 2010.
“I can’t fully explain why I received a high number of peremptory challenges,” Moran wrote in her retention materials. “Blanket peremptory challenges (are) part of the legal culture in Kenai.”
That same year, Kenai Superior Court Judge Sharon Illsley was bumped from 444 criminal cases by defense lawyers. She was also removed from 106 criminal cases by defense lawyers in 2009.
Illsley wrote in her retention materials that the high rate was likely due to her background as a prosecutor.
“The smaller the court location, the less flexibility there is to respond to peremptory challenges of the judges,” Meade said. And every time a judge shuffles across the state to handle a case originally assigned to one of their colleagues, their own caseload sits idle.
Skidmore said his office weighs those realities when bumping a judge, and that the attorney general or deputy attorney general is involved whenever a blanket challenge is issued.
MORE THAN MONEY
Beyond the bottom line and lost court time, some wonder if there are unintended effects of allowing lawyers to reject judges.
Everyone affiliated with the court system insists judges are trained to focus only on the case they are considering.
But judges must be aware of logistical problems that will occur if they make decisions – say for example setting a high personal mandatory minimum for DUI cases – that upset offices that most commonly appear in their courtroom. Is it a good career move to ruffle feathers? How many waves should one make in a small, tight-knit community?
"I think judges, while they wouldn’t come out and say that explicitly, it’s got to be in the back of their minds," said state Sen. Hollis French, an Anchorage Democrat and longtime member of the Senate Judiciary Committee.
Bumps also play into the court's reliance on remote, telephonic hearings in rural Alaska.
While long-distance hearings are critically important, some things are lost in translation from far away.
Jeffery points to a Kotzebue sentencing hearing that was preceded by several telephonic hearings. He did not see the defendant in person until that day in court, and what he saw came as a surprise.
"I could see this person has some cognitive impairments," he said. "I hadn’t sensed that over the phone because they didn’t say that much. It changed the way I talked, and it also changed some of the probation conditions.
"So much is lost when you can't see body language and the way people are presenting themselves."
A BETTER WAY?
Even with the concerns, there is not a vocal movement for a change, maybe in part because no methods used elsewhere are definitively better.
"I can't think of another way of doing it that makes more sense," Jeffery said.
Many states protect the right to remove a judge from a case but require lawyers to list specific reasons for the disqualification in an affidavit; Jeffery said forcing lawyers to single out judges "would be a lot of stress and strain."
And Christie, the defense lawyer, said it is important to protect the ability to remove judges without that type of hurdle.
"Until it starts causing enough problems to really sort of drive the budget in the court system, it’s unlikely they’re going to come to us and ask for a change," French said.
(Copyright © 2013, KTUU-TV)