Opening Brief of Appellant (Defense)

In learning about the appeals process itself, we have learned that the way the courts operate - not necessarily the law itself - hinder the opportunity for true justice to be served simply by the expectations of the players involved. To put forth your best effort to win an appeal, actually requires you to sacrifice some of your rights, and very valid violations of due process may not even be eligible for inclusion due to how events played out during your trial. For a more detailed explanation of what often gets left out of the appeal process, and why, we recommend that you read the How It Works page.

Once you understand just how limited an appeal is in scope, and how severely it curtails your ability to petition for injustices in your trial to be addressed by the courts, you begin to realize that the weight of the limited content chosen for your appeal is magnified significantly. Those select few arguments that make the cut must be the most demanding of remedy. This page attempts to summarize the content that made the cut for the Opening Brief of the Appellant (Clayton's attorney) filed on January 26, 2017.

We should also note that while we provide this summary for those who may not have the ability to read the full content right away, it is no fair substitute for the full argument. The document includes details on supporting facts and where they can be found within the appellate record. Also, the attorney who authored the document did what we feel is a truly remarkable job in painting a picture of both the judge's bias and prosecutor's misconduct through the events, without calling them out as separate issues. This illustration cannot be fully appreciated without reading the full context, and we highly encourage you to read the complete content when time permits.


Tr. = Reference to page(s) from the official court transcript

R. = Reference to page(s) from the official court document record

Content of the Brief:

Pages iii-xi of the brief include a list of the "authorities" relied upon throughout the document for the legal argument including relevant case law, Alaska rules of evidence and criminal procedure, and both Alaskan and U.S. constitutional provisions. It outlines both the content of these provisions (other than case law), as well as the page numbers of the brief that each authority is referenced within.

Issues Presented For Review

Summarized on pages 1-2:

  • "Whether the trial court abused its discretion and violated Clayton Allison's due process right to present a defense when the court precluded any testimony that Ehlers-Danlos Syndrome, a genetic condition associated with bleeding, with which J.A.'s mother was diagnosed after J.A.'s death, may have contributed to J.A.'s injuries."
  • "Whether the trial court abused its discretion and violated Allison's due process right to present a defense when it ruled that Allison could not present evidence of his employment and training as an activity therapist for emotionally disturbed children, when the State presented evidence that J.A. was at high risk for abuse because she was developmentally delayed and therefore 'special needs'. "
  • "Whether the trial court violated Allison's confrontational rights and to due process through its rulings regarding cross-examination of the pathologists."
  • "Whether cumulative error requires reversal of Allison's conviction."

Facts of the Case

Summarized on pages 3-19, as they appear in the official appeals record. This is an excellent summary for those who were unable to attend the full trial. It includes facts and testimony about Jocelynn's injury and death, her complicated medical history, and the pathology and forensic evidence of her injuries.

The Argument

Detailed on pages 20-64. It includes 4 primary issues presented above. Below are some of the highlights from each of those issues:

Exclusion of EDS:

  • "Here, evidence that J.A.'s injuries may have been the result of factors other than abusive head trauma tended to create doubt about Allison's guilt. J.A.'s maternal history, the inheritance pattern of the condition, the risk of bleeding for any type of EDS, as well as J.A.'s documented joint hypermobility and the severity of her bleeding were all linked in a case-specific way. ... Allison was not required to prove conclusively that J.A. had EDS and that it caused her bleeding and death for the evidence to be admissible." (Page 30)
  • "The evidence was admissible because it created reasonable doubt about whether J.A.'s injury was the result of child abuse, itself a rule-out diagnosis. ... The prosecution rested largely on the testimony of Drs. Galloway and Whitmore, who were both unaware of either J.A.'s or C.J.'s medical history." (Page 31)
  • "The court's finding that C.J.'s diagnosis was a "rule-out" diagnosis and was therefore speculative and inadmissible appears to be based on an assertion by the prosecutor and does not appear in C.J.'s medical records. [R. 2447-60] The record provides no basis for the court's finding, other than the prosecutor's assertions of his personal belief that C.J.'s diagnosis was not a "real" diagnosis. [Tr. 1553] It is unclear whether the prosecutor intended the term to apply to the doctor's confidence in the diagnosis or the diagnosis as a product of differential diagnosis, rather than genetic testing. Either way, the court's finding is clearly erroneous." (Page 35)

Exclusion of Clayton's Work History:

  • "Allison sought to present the testimony of Jennifer Moore, the director of the children's mental health program at Hope Community Resources. [Tr. 2988-3001] Moore would have testified that Allison was employed at Hope from 2005 through 2007. [Tr. 3001-07]" (Pages 38-39)
  • "Moore's testimony was not just character testimony - the evidence was not simply about the kind of person Allison was. She also stated that Allison received special training to do his job. In particular, Allison had received training in how to work with children experiencing difficult behaviors, how to calm them, and how to interact positively with them. [Tr. 3011-12]" (Pages 41-42)
  • "Here, the court concluded that the evidence was unfairly prejudicial because the jury might infer from it that Allison was patient, peaceful, and not easily frustrated. [Tr. 3026] This reflects a misapplication of Rule 403. The proposed evidence was relevant - and admissible - for precisely that purpose. ... The possibility that the jury might rely on the evidence for the purpose for which it was relevant does not constitute unfair prejudice." (Page 43)
  • "The jury is the exclusive finder of fact in a criminal trial, and the trial court usurped the jury's role through its misapplication of Rule 403." (Page 44)
  • "Allison had professional experience interacting therapeutically with disturbed children and following their individual plans. The jury might have concluded that when Allison expressed that he could conduct J.A.'s physical therapy at home as competently as could a therapist at an office, he was not simply being cavalier about her health and care - as the State implied - and instead may have been reasonably relying on his own experience in carrying out individualized therapeutic plans." (Page 45)
  • "...the significance of the State's argument - that Allison was a resentful and uncaring parent - may well have been diminished by Moore's testimony." (Page 46)

Cross-Examination of Dr. Whitmore:

  • "Allison's cross-examination of Dr. Whitmore, the State's pathologist, was restricted by rulings and orders that unconstitutionally limited Allison's right to confront the State's most important witness. Despite Whitmore's hostility, the trial court directed Allison['s attorney] not to adopt a confrontational tone, notwithstanding the court's permitting the State to do the same with Allison's expert pathologist. The court rehabilitated Whitmore when his testimony was obstreperous and nonresponsive, but declared Allison's pathologist nonresponsive under identical circumstances. Last, the court refused to permit Allison['s attorney] to cross-examine Whitmore with learned treatises undermining his primary conclusions during Allison's primary cross-examination, later ruling that Allison could do so only by video conference. These restrictions of Allison's cross-examination violated his right to confront Whitmore and to due process and require reversal of his conviction." (Page 46)
  • "...Allison began to seek the court's assistance in requiring Whitmore to answer. Instead, the court intervened on Whitmore's behalf, saying, 'I think the witness is saying that he doesn't understand in what context he's being asked if it's important. So, important for what purpose, right, Dr. Whitmore?' [Tr. 1802] Whitmore then answered, repeating the court verbatim, 'Important for what purpose?' [Tr. 1802]" (Page 50)
  • "Before Whitmore appeared for video cross-examination, Allison's pediatric pathologist, Dr. Ophoven, testified and was cross-examined. [Tr. 2292-2624] Cross-examination was combative and aggressive, including regarding journal articles. [Tr. 2469-2530] When the defense attorney objected to the prosecutor's tone of cross-examination, noting that she was admonished for tone at the beginning of her cross-examination of Whitmore, at the request of the State, and that the prosecutor was considerably more combative and badgering, the court instructed the jury that "Perry misbehaved." [Tr. 2530] When Ophoven answered the prosecutor's question with a question, rather than rehabilitate it, as the court did with Whitmore, the court ruled Ophoven's answer unresponsive. [Tr. 2533-34] When Ophoven testified that the terms "clot" and "thrombosis" referred to the same thing, the prosecutor again became combative and, when Allison's defense attorney objected, the court overruled the objection, finding that Ophoven was 'giving as good as she gets.' [Tr. 2541-45]" (Pages 54-55)
  • "The court in this case acknowledged that it committed error in refusing to permit the defense to cross-examine Whitmore with learned treatises he refused to acknowledge as authoritative. [Tr. 1853-57] ... The court's uneven rulings regarding the tone and aggression the parties were permitted during cross-examination of the two pathologists was additional error, because the rulings unduly amplified the credibility of one witness over the other, and one party over the other." (Page 56)
  • "The courts action appeared as an expression of prejudice, reflected an abandonment of the court's role as a neutral and impartial decision-maker, and impacted the fairness of proceedings. The contrast suggested to the jury both that Whitmore was reasonable and credible whereas Ophoven was not and that the prosecutor's aggressive cross-examination was justified but the defense attorney's was not." (Page 57)
  • "The court's uneven interventions amplified the restriction of Allison's opportunity for effective cross-examination and impermissibly bolstered Whitmore's credibility, harmed Ophoven's, and impacted the credibility of the parties themselves. It cannot be said that these errors had no substantial impact on the jury's verdict." (Page 62)

Cumulative Error:

  • "Here, the cumulative prejudice of the errors in this case were so prejudicial that they undermine the trustworthiness of the underlying judgement and require reversal. The State's case was based primarily on medical testimony that J.A.'s injuries could not have been caused simply by a fall down the stairs. But Allison was precluded from introducing evidence that J.A.'s mother suffered from EDS, a condition associated with bleeding and a 50% chance of being passed to J.A. The jury also did not hear that J.A.'s treating neurologist had suspicions about the condition and was planning to have J.A. tested once J.A.'s family had TEFRA [insurance] to pay for the testing. The State presented evidence that J.A. was at risk for being abused because she was special needs and her father was indifferent to her special needs. But the jury was precluded from hearing evidence that Allison worked with emotionally disturbed children, was trained in positive methods of interacting with them, and in following care plans. In addition, the defense was denied the effective timely, direct, aggressive, in-person cross-examination of the State's pathologist that the State conducted against the defense pathologist in a case that turned almost exclusively on the medical findings and their significance. Under these circumstances, the cumulative impact of these errors deprived Clayton Allison of a fair trial, undermine the trustworthiness of his conviction, and require reversal." (Page 64)

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