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How Alaska Lawyers Can 'Bump' Judges from Cases

By Austin Baird, Political, Rural Reporter, abaird@ktuu.com
Published On: Nov 07 2013 08:05:57 PM AKST
Updated On: Nov 07 2013 06:21:00 PM AKST

Reporter Austin Baird, Photojournalist Scotty Smith

BARROW -

Just about everyone involved with the justice system in Barrow has an office in a large but nondescript brown-and-green building, a block from the icy waters of the Arctic Ocean.

Judges, a prosecutor and defense lawyers, as well as probation officers and social workers, are all separated from courtrooms by a few steps.

The building is also home to an AC Quick Stop. Known elsewhere for its high prices, the shop is frequented by the odd collection of office neighbors who pass by on the way to and from work.

That 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.

Little things like that can make a big difference, with a forgotten document in other rural courts often prompting delays, Jeffery said.

The logistics of some cases are not so simple.

ON THE ROAD (…KIND OF)

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 flight paths he has taken a forgettable number of times.

Jeffery is the presiding judge for the Second Judicial District, which sprawls across the top third of Alaska, covering a land area larger than California and consisting of a population numbered in the tens of thousands.

The reason he and other judges routinely lose a few days traveling to the faraway courts of their colleagues is a rule known as a peremptory challenge.

In most states, including Alaska, lawyers can remove a prospective juror without listing a reason. Lawyers here can remove a judge from a case in similar fashion.

“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.

The process is commonly called a bump, something lawyers can do once per case in the five days after a judge is assigned.

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.

But an idealistic pursuit of impartiality is not always the reason a judge is bumped.

MOTIVATIONS, STRATEGIES BEHIND BUMPS

Because lawyers are not required to give an explanation, the reasons behind specific bumps are unknown.

“People may have unusual reasons for thinking someone would be unfair for them,” Jeffery said. “Who knows?”

There are, however, some common motivations.

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.)

Records show that new judges with unproven track records are subjected to challenges by defense lawyers and prosecutors at higher rates than their seasoned colleagues.

OCCASIONAL HEADACHES

People across the system said that a single challenge can be absorbed without trouble, even in distant courts like the ones that compose the Second District.

But problems arise when there is a “blanket challenge,” when the Department of Law or 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."

The step is rarely taken, but it does happen.

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.

NOT JUST A COST CONCERN

There are concerns with beyond costs and lost court time. Some wonder if there are unintended effects.

Judges and people involved with the court system insist judges are trained to focus only on the case they are considering.

But some people wonder if the potential of putting a strain on the system is a consideration for judges when they craft responses to cases that could upset prosecutors or the public defender. And what about thoughts of their own careers?

"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. 

The prevalence of bumps also plays into the court's reliance on remote, telephonic hearings in rural Alaska. 

Judge Jeffery said the use of remote hearings is critical, but some things are lost at a distance.

Jeffery points to a Kotzebue sentencing hearing that was preceded by several routine 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 DIFFERENT 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 from his perspective 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.