Alaska Superior Court Judge Affirms Right Of Accused To Interview Witnesses

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ANCHORAGE — The American Civil Liberties Union of Alaska today lauded a court ruling striking down part of a decades-old law that required defense representatives to get written releases before interviewing witnesses and prohibiting them from taping interviews. The court also upheld provisions that merely require defense counsel to advise victims verbally that they have the right not to answer questions.

“We are very pleased that the court recognized that both the prosecutor and defense serve the public interest of seeking justice — albeit from different directions,” said Susan Orlansky, a partner at the Anchorage law firm of Feldman & Orlansky and cooperating counsel for the ACLU of Alaska. “Anything that inhibits the ability of the defense to investigate, by definition, will make it harder to ensure that innocent people aren’t wrongly convicted.”

Murtagh et al. v. State of Alaska was filed in 1997 and challenged portions of laws enacted in 1991 and 1996 aimed at shielding crime victims and witnesses from criminal defense investigators. The plaintiffs in the case are defense attorneys and investigators who said that the laws prevented them from adequately investigating the charges against their clients. After a lengthy pre-trial period, the case finally went to trial in November 2004.

In his ruling, Superior Court Judge Sen K. Tan expressed concern that the prosecution should not have an unfair advantage over the defense in investigating crimes and, even with respect to the statutory provisions upheld, warned prosecutors against interfering with legitimate defense investigatory efforts. In upholding the victim’s right to have a prosecutor present at interviews, the court warned that, “[t]he prosecution cannot interfere with an interview other than to advise the victim that he or she may decline to be interviewed.” Such warnings were seen by plaintiffs as an effort to compromise the competing claims.

“First and foremost, the court struck down the provisions that directly impeded legitimate investigative techniques,” said Michael W. Macleod-Ball, Executive Director of the ACLU of Alaska. “We remain concerned about prosecutorial abuse of the rights upheld in the statute — and the court clearly anticipated that such abuses could form the basis for further challenges to the way this statute is applied. The ACLU of Alaska takes comfort from the court’s specific statements that the prosecution cannot use its persuasive powers to interfere with the right of the defense to investigate.”

In today’s ruling, the court struck down portions of the statute using an equal protection evaluation. Under the evaluation, the court first examined the constitutional interest affected by the statute — finding that the accused’s right to investigate is an important right collateral to the fundamental rights assured all Alaskans. Next, the court evaluated whether the legislature sought to fulfill a sufficiently important goal in adopting the statute — and determined that the privacy rights of victims and witnesses were legitimate state interests. Finally, the court reviewed the means used to achieve the goal and ruled that the means needed to be narrowly drawn due to the important rights being restricted under the state.

Applying the analysis to the challenged statute, the court upheld the verbal notice requirements, but struck down those provisions that actually impeded the defense ability to interview witnesses. The court gave greater weight to the rights of the victims as compared to the rights of witnesses and found that some of the statutory restrictions did not advance the privacy rights of victims or witnesses.

Macleod-Ball said that the decision will be especially helpful to defense investigators involved in prosecutions in bush locations. “The court noted that the statutory restrictions disproportionately affected Native Alaskan populations. Because defense counsel often handle investigations in rural locations by phone, the requirement for written consent before interviewing witnesses made it nearly impossible to do the job thoroughly.” Macleod-Ball said that with the decision throwing out the requirement for written consent, defense attorneys will now be better able to find out the true facts of a case before going to trial. “While we’re concerned with portions of this ruling, on balance we’re very pleased that defense counsel no longer face these barriers to effective representation.”

Because the court’s decision invalidated some portions of the statute and upheld others, both sides have the right to appeal the decision. Orlansky said the plaintiffs will consider their options before making a decision. Parties to the suit have 30 days from final judgment to file the appeal.