Introduction to Appeals In Alaska

More people than we could possibly count over the years, who have learned of Clayton Allison's story, have led with the question, “But… you’re filing for appeal, right?”

There is nothing wrong with this question. In fact, it is completely logical. This is the only “solution” our system of government affords us. However, that solution falls woefully short of justice; as the wrongfully convicted waste away for years, waiting to prove their trials were a farce with evidence they could have presented immediately. This page will give you more information about what an appeal is really like in Alaska, and what its major limitations are.

Automatic Delays of the Appeals Process

After Clayton’s conviction, he was not allowed to notify the court of his intent to appeal until after his sentencing hearing five months later. That notice is basically a glorified memo with a bullet list of items you intend to appeal on at that point in time; which only serves to preserve your right to do so.

Then, in Alaska you are assigned to a set of public defenders who specialize in appeals and are grossly overworked; unless of course you are independently wealthy and can afford private appeal representation. These professionals handle cases on a first-noticed-first-served basis, the only way they have decided they can make it fair for their clients. This means that their first order of business in Clayton’s case was to file for an automatic 460+ day extension before being required to file the appeal itself. The court grants this extension without blinking because they know how desperately backlogged the appeals system is. You are not even officially assigned to an attorney until closer to the time that your appeal will actually be filed. In Clayton’s case, an extension was granted until January 27, 2017, and his attorney was assigned in the fourth quarter of 2016.

After the opening brief is finally filed, the State is granted an automatic six months to reply. However, they almost never meet this deadline, and in Clayton's case were granted an additional extension. They were not required to file their reply until November 20, 2017. Then Clayton's lawyer is given roughly two weeks to respond, which landed in the middle of the December holiday season of 2017. Therefore, an additional approved extension meant the paperwork process for his appeal was not completed until February 26, 2018.

We have been advised that the combination of being calendared for oral arguments, and the waiting period for the judges to render a decision after hearing your arguments, will equate to an expected 3 years of additional delay.

This is what happens when you ARE in the ACTIVE process of appeal in Alaska. Years and years of your life waste away.

Preservation of Issues

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. This is similar to how you must waive your right to a speedy trial immediately after arrest if you do not want to go to prison simply because your lawyer doesn’t even know who you are, much less the details of your case.

In the appeals example, it boils down to how much judges want to, or expect to, read. An appeal is a one-shot process. You cannot submit appeals over and over on separate subjects, trying to find the right one to convince the court to overturn the conviction. Everything that you want to preserve your right to appeal on, must be included in the original appeal brief. If any appeal-worthy subject has not been included, and sufficiently argued, in the original document, it is considered waived indefinitely at all levels - even when moving to higher courts. Yes, you read that right.

Waived. Indefinitely. Permanently.

Also, an appeal cannot include all subject matter related to the case. Things like new exculpatory evidence, misbehavior that can be proven through further investigation, and errors discovered after trial, cannot be addressed except through a process called Post-Conviction Relief (PCR). An appeal can only address issues in the official appeals record from your trial; which includes the trial transcript and audio. This is insufficient, because currently proceedings are not video recorded in Alaska, and parties can abuse the inability to reflect on their physical demeanor in the courtroom.

Also, the complete hundreds or thousands of pages of discovery evidence in your case are NOT automatically part of the appeals record. Instead, the specific document highlighting the problem you want to include in your appeal would have to have been formally submitted in trial as an evidence exhibit. In Clayton’s case, examples of the prosecutors involved lying about case evidence and the contents of police transcripts cannot be included, because the actual physical evidence they were lying about was never logged in the “official record.” Transcripts especially, are not submitted unless challenged on a specific issue during trial. Other misconduct or mistakes like these from your trial can only be addressed through the PCR, which normally comes after appeal because it is also a one-shot process.

This is why, during your trial - the literal battle for your life - your will find your attorneys obsessed with “preserving” issues. They not only have to battle the arguments in front of them; they have to catch and remember each screw-up, and try to find a way to preserve the fact that it occurred within the official record. In Clayton’s case, this was even more difficult than it should have been due to interference from Judge Vanessa White.

Judge White was supposed to be the unbiased guardian of the process, but instead served to block attempts to preserve multiple issues on the record through inappropriate rulings. For example, by disallowing Clayton’s wife from “testifying about the demeanor of the police interrogating her” without first allowing her to provide her honest responses on record, outside the presence of the jury, she effectively prevented the appeals court from being able to consider the grossly misleading nature of the prosecution’s line of questioning. The prosecutor dramatically thumped the thick transcript of this interrogation on his podium to emphasize how long it was, asking Clayton’s wife if during it she had told the police specific details. He told the judge and jury that the fact that she had not spoken these details in such a long interview demonstrated that she had made up the information years later. However, she, Clayton, and others had already told the police all the information he was referring to in earlier interviews. In this interrogation the police were not asking her questions about those details at all, but were in fact forcing her, a young 22-year-old bereaved mother, to look at her baby’s autopsy pictures for nearly four hours in an attempt to emotionally break her, and turn her against her husband. On the stand that day, she was traumatised again, reliving the horror of it while trapped in a situation where the assault was being used to paint her as a liar in front of the jury. Judges are not supposed to manipulate the appeals record, but unfortunately have the seemingly unchecked power to do so.

So, now we know there are numerous issues of misconduct, and flat-out provably incorrect incorrect information provided to the jury as fact that simply cannot be considered part of the appeal. We also know that there are still many elements, including major ones, that are appeal eligible within Clayton’s case. However, the nature of the process means he will not be able to use them all for his appeal.

Limitations of the Appellant Brief

An appeal brief, which is required to include everything you ever want considered for appeal, is limited by the courts in Alaska to 50 pages. These pages must contain not only the appeal subjects, but the legal arguments and case law which show them to be valid to overturn the conviction. It is expected by the professionals in the field that if you have a very good, very solid case for winning an appeal, there will only be 3-4 appeal items included. That’s it! It was explained to us that in cases which did not have good grounds for appeal, and were essentially grasping at straws, you would see 10+ items listed.

Obviously this tradition biases the appeals court itself. Let’s say you had seven extreme violations of your rights occur in your trial which were all on record and eligible for appeal, and which all were worthy of reversing your conviction. You would have to waive your right to 3-4 of them to prevent the lawyer from running out of room to argue them sufficiently, and the judges from assuming you don’t have a legal leg to stand on at first glance. In cases like Clayton’s, where there were many, many violations of his rights and due process, things literally have to be left out and given up if you want to win.

This is what had to happen in Clayton’s case. His attorney only included what she felt were the legally strongest three errors of the court, with an additional argument for the cumulative effect of all three on the trial verdict. Note that these are not necessarily the errors that had the strongest effect in creating an unfair trial, but the ones that had the strongest effect that are also the most easily argued by citing law, and demonstrated by court transcripts. No video is available to be reviewed, and the recordings are available but usually not heard, so inflections and tone which may have influenced the jury greatly, are largely lost in this process. A skilled lawyer in court can safely say the “right” thing with a smirk on their face, or with a jeering tone, or with a dismissive body posture, and only the printed words themselves are generally reviewed on appeal.

Clayton's Actual Involvement

Clayton is able to discuss the general plans for filed briefs with his attorney, but is not afforded the opportunity to read anything before it is filed. Unfortunately, it is standard practice at all levels for things to be filed on your legal behalf, in your name, without ever actually being read or approved by you. He receives copies of all official court documents after they have been filed, delivered to the prison, and only then is able to see their actual contents.

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