Opinion
Court of Appeals No. A-8639.
April 20, 2005.
Appeal from the Superior Court, First Judicial District, Ketchikan, Larry R. Weeks, Judge. Trial Court No. 1KE-99-368 Cr.
Brant G. McGee, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Frederick W. Morgan III appeals his sexual assault conviction to this Court for a second time. In our first decision in Morgan's case, we held that the superior court applied the wrong legal standard when ruling on (and denying) Morgan's request to introduce evidence that the victim of the sexual assault had made a prior false report of rape. See Morgan v. State, 54 P.3d 332 (Alaska App. 2002). We therefore remanded Morgan's case to the superior court with directions to re-evaluate Morgan's offer of proof. And, because Morgan was tried by a judge rather than by a jury, we instructed the superior court that, if it concluded that the disputed evidence should have been admitted at Morgan's trial, "the trial judge should then re-determine Morgan's guilt in light of this evidence".
Morgan, 54 P.3d at 340.
When Morgan's case returned to the superior court, the judge who had heard his case, Superior Court Judge Thomas M. Jahnke, had retired from the bench and was not available to conduct the renewed proceedings. Morgan's case was therefore assigned to another judge, Superior Court Judge Larry R. Weeks.
Judge Weeks heard Morgan's offer of proof concerning the victim's prior false report of rape. Applying the "preponderance of the evidence" standard that we adopted in Morgan, Judge Weeks concluded that Morgan should have been allowed to present this evidence at his trial.
Judge Weeks then reviewed the entire record of Morgan's trial, factoring in the newly admitted evidence of the victim's false report of rape. In a written decision, Judge Weeks explained why he concluded that the State's case against Morgan was strong, and he further explained why he concluded that the new evidence of the victim's prior false report of rape was of little probative value (because the false report was made to a roommate rather than to the authorities, and because the victim recanted the accusation a few days later and apologized to the man involved, and because other evidence was presented at Morgan's trial suggesting that the victim had made false accusations in the past).
Based on his review of the evidence, Judge Weeks declared "that [Morgan] was proven to have committed the offense [of sexual assault] beyond a reasonable doubt . . . [and] the admission of the [new] evidence would not have affected the verdict in this case".
Morgan now appeals Judge Weeks's decision. For the reasons explained here, we reject most of Morgan's claims, but we order the parties to file supplemental briefs on one issue: whether Morgan was entitled to a new trial because the judge who served as the finder of fact at his original trial is no longer available to hear and assess the new evidence.
Morgan's claim that Judge Weeks applied the wrong standard of review when he reached his decision
Morgan argues that, because Judge Jahnke was no longer available to hear the evidence concerning the victim's prior false report of rape, it became Judge Weeks's duty to decide whether this evidence would have changed Judge Jahnke's verdict (if Judge Jahnke had heard the evidence).
Morgan further argues that when Judge Weeks performed this duty, it appears that he employed a "more likely than not" test rather than a "reasonable possibility" test. Morgan contends that the correct test is the "reasonable possibility" test — because Morgan's right to impeach the victim with her prior false report of rape was a right of constitutional dimension, and because a constitutional error requires reversal of a criminal conviction unless the error is harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 24; 87 S.Ct. 824, 828; 17 L.Ed.2d 705 (1967); Love v. State, 457 P.2d 622, 631 (Alaska 1969).
We believe that Morgan has misconstrued what Judge Weeks was obliged to do — and what he did. As explained above, when we issued our prior decision in Morgan's case, we instructed the superior court to decide whether the disputed evidence should have been admitted at Morgan's trial — and, if the court concluded that this evidence should have been admitted, we directed the court to "re-determine Morgan's guilt in light of this evidence".
Our review of the record shows that, after Judge Weeks ruled that Morgan's evidence of the victim's prior false complaint of rape should have been admitted, Judge Weeks then reviewed all of the evidence in Morgan's case and concluded that this evidence still proved Morgan's guilt beyond a reasonable doubt. That is, Judge Weeks followed our instruction and issued a new verdict. He did not try to gauge the effect that the new evidence would have had on Judge Jahnke's evaluation of the case; instead, he made his own evaluation of the case.
Put a different way, Judge Weeks did not employ any standard of review, because he was not assessing another judge's decision. Rather, Judge Weeks made his own decision.
See Nelson v. State, 68 P.3d 402, 406 (Alaska App. 2003) ("The core function of the standard of review is to define the degree of deference that [a reviewing] court must show toward the decision of the trial court.").
Morgan's claim that Judge Weeks failed to review the entire transcript of Morgan's trial before making his decision
Morgan asserts that Judge Weeks failed to thoroughly review the evidence presented at Morgan's trial before he re-evaluated Morgan's guilt.
It has long been the law in this state that a judge who steps into a case for the first time to make a post-trial decision must "become versed in the issues and [the] evidence presented at [the] trial". Shapiro v. State, 793 P.2d 535, 536 (Alaska App. 1990).
In his brief to this Court, Morgan acknowledges that Judge Weeks declared (in his written decision) that he "ha[d] reviewed the entire trial". But Morgan asserts that this statement is not sufficient to remove speculation that the judge merely reviewed the log notes of the trial, or merely reviewed the summaries of the evidence contained in the parties' pleadings, or some combination of these.
We disagree. In his written decision, Judge Weeks discusses the testimony presented at Morgan's trial at length and in detail. There is nothing to indicate that he failed to review the entire transcript of the trial.
Moreover, Judge Weeks's action must be evaluated using the presumption of regularity — the rule that "if a court has subject-matter jurisdiction over a criminal prosecution and personal jurisdiction over the defendant, every act of the court is presumed to have been rightly done until the contrary appears". Under the presumption of regularity, it is not enough for Morgan to speculate that Judge Weeks might not have properly reviewed the record of Morgan's trial. Rather, it is Morgan's burden to affirmatively show good reason to believe that the judge failed to comply with this duty. Morgan has not met this burden.
Brodigan v. State, 95 P.3d 940, 944 (Alaska App. 2004), quoting Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993).
Morgan's claim that he was denied his right to trial by jury
As explained above, Morgan waived his right to trial by jury and consented to be tried by the court. However, Morgan now claims that he should be allowed to reconsider that decision.
Morgan argues that, once Judge Weeks concluded that the evidence of the victim's prior false complaint of rape should have been admitted at Morgan's trial, and that Morgan's guilt would have to be re-evaluated in light of this new evidence, Morgan should have been allowed to withdraw his earlier waiver of the right to jury trial and to insist that any new determination of his guilt be made by a jury.
Morgan makes this argument for the first time in his reply brief. Alaska Appellate Rule 212(c)(3) declares that the reply brief "may raise no contentions not previously raised in either the appellant's or appellee's briefs". Morgan's argument is therefore waived.
See Katmailand, Inc. v. Lake Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 411 (Alaska 1990); Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n. 4 (Alaska 1982).
Morgan's claim that, once Judge Weeks ruled that the evidence of the victim's prior false complaint should have been admitted, Morgan became entitled to a new trial
Morgan's last contention is that, once Judge Weeks ruled that Morgan should have been allowed to present evidence that the victim had made a prior false accusation of rape, Judge Weeks should have ordered a new trial. Morgan points out that Judge Weeks was not the judge who heard the testimony at Morgan's trial. He suggests that it was impossible for Judge Weeks to fairly re-evaluate Morgan's guilt by reviewing the transcript of testimony that was presented to another judge (in combination with the evidence of the victim's prior false complaint, which Judge Weeks heard personally).
Neither Morgan nor the State has given us meaningful briefing on this issue. We generally decline to decide issues that are inadequately briefed; instead, we deem the issue waived by whichever party is pursuing the point. However, there is a recognized exception to this rule of procedural default for cases "where [the] question of law [is] critical to a proper and just decision of the case". In such instances, this Court has the discretion to address the issue, after giving the parties the opportunity to brief the issue. For the reasons we are about to explain, this is what we choose to do in Morgan's case.
See, e.g., Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 n. 10 (Alaska 2003) ("Points that are inadequately briefed are considered waived."); Katmailand, Inc. v. Lake Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978); Fitts v. State, 25 P.3d 1130, 1135 (Alaska App. 2001).
Garner v. Alaska Dept. of Health Social Services, 63 P.3d 264, 269 n. 21 (Alaska 2003); see also Cornwall v. State, 915 P.2d 640, 651 (Alaska App. 1996) ("[W]e think it possible that the lack of full adversarial briefing may mask potential prejudice to Cornwall's case. We conclude that the interests of justice will be served by allowing the parties to file supplemental briefing before we decide whether this error was harmless.").
(a) The two court rules at issue here
Alaska Criminal Rule 25 contains two provisions that authorize a new judge to assume judicial duties in a criminal case if circumstances prevent the first judge from continuing. Rule 25(b) covers situations that arise during trial, while Rule 25(c) covers situations that arise after the verdict. The pertinent portions of Criminal Rule 25 read:
Judge — Disqualification or Disability
. . .
(b) During Trial. If a judge holding superior court be prevented during a trial from continuing to preside therein, the presiding judge or the chief justice of the supreme court shall designate another judge of the superior court to . . . complete [the] trial, as if [that] other judge had been present and presiding from the commencement of [the] trial, [but only if there is a complete] stenographic or electronic record of [the] trial . . . so that the [new] judge . . . may become familiar with the previous proceedings at [the] trial.
(c) After Verdict. If by reason of absence from the district, [or] death, sickness[,] or other disability, the judge before whom the action has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties; but if the other judge is satisfied that a judge who did not preside at the trial cannot perform those duties or that [a new trial] is appropriate for any other reason, that judge may grant a new trial.
Morgan's case may present a hybrid situation involving both Rule 25(b) and Rule 25(c). Criminal Rule 25(c) — the post-verdict rule — clearly governs Judge Weeks's assignment to decide the issue of whether Morgan should have been allowed to present evidence of the victim's prior false accusation of rape. But once Judge Weeks decided that Morgan should have been allowed to present this evidence, the judge's next step was to decide whether the totality of the evidence presented at Morgan's trial (including this new evidence) still established Morgan's guilt beyond a reasonable doubt. One might argue that this second step should not be considered a "post-verdict" proceeding, but rather a "mid-trial" proceeding, since the judge's task was to re-open the evidence at trial and then re-assess the verdict.
(b) Does Alaska Criminal Rule 25(b) allow a mid-trial substitution of judges in a bench trial?
Ninety years ago, in Freeman v. United States, 227 F. 732 (2nd Cir. 1915), the Second Circuit held that the very notion of a jury trial required an unchanging combination of judge and jury, "[both] of whom must remain identical from the beginning [of the trial] to the end". Since that time, federal law on this subject has changed. Federal Criminal Rule 25(a), enacted in 1966, provides for a mid-trial substitution of the trial judge, at least in jury trials:
Freeman, 227 F. at 759.
Judge's Disability
(a) During Trial. Any judge regularly sitting in or assigned to the court may complete a jury trial if:
(1) the judge before whom the trial began cannot proceed because of death, sickness, or other disability; and
(2) the judge completing the trial certifies familiarity with the trial record.
But despite the promulgation of Federal Rule 25(a), there is a continuing debate concerning the propriety of substituting a new judge in the middle of a criminal trial. Professor Charles Alan Wright, in his treatise Federal Practice and Procedure, questions whether a substitution of judges under Federal Rule 25(a) is constitutional unless the defendant expressly consents. Professor Wright suggests that, even when a jury is the trier of fact, if the defendant does not consent to the substitution of judges, "the death or disability of the [initial] judge [seemingly] requires that a mistrial be granted."
Charles Alan Wright, Federal Practice and Procedure: Criminal (3rd ed. 2000), § 392, Vol. 2, p. 602.
Professor Wright's interpretation of the law is entitled to careful consideration. However, the court decisions on this issue (both federal and state) diverge from his view.
As we explain in detail below, some courts have been cautious, holding that a substitution of judges is proper only when the successor judge will not have to resolve any disputed issues of fact. Some courts have declined to set precise limits on the substitution of judges, but have held that a defendant who challenges a substitution must affirmatively demonstrate prejudice. Other courts take a more expansive approach, holding that a substitution of judges can be lawful even when the successor judge decides issues of fact that are ancillary to rulings on issues of law — for instance, whether the defendant was entrapped, or whether the verdict should be set aside as against the weight of the evidence.
However, most of these court decisions have arisen when a substitute judge was required in a jury trial — i.e., a trial in which the judge was not the trier of fact. It remains an open question whether these same courts would be willing to countenance a mid-trial substitution of judges in bench trials.
(1) Cases interpreting Federal Criminal Rule 25(a)
As explained above, Federal Criminal Rule 25(a) explicitly refers to the substitution of judges in jury trials; the rule is silent concerning the substitution of judges in judge-tried cases. Nevertheless, in United States v. Sundstrom, 489 F.2d 859 (2nd Cir. 1973), the Second Circuit construed Federal Rule 25(a) as allowing the mid-trial substitution of judges in judge-tried cases, but only in very narrow circumstances — only when the new judge is not asked to decide any issue of fact.
The Second Circuit interpreted Federal Criminal Rule 25(a) as implicitly incorporating "the traditional dichotomy between [issues of] `law' and [issues of] `fact' The court appears to have presumed that a criminal defendant would normally be entitled to have a single trier of fact (whether judge or jury) hear all of the evidence in the case, but the court concluded that Federal Rule 25(a) did not forbid a mid-trial substitution of judges in a judge-tried case so long as the successor judge would only have to decide issues of law and would not have to resolve disputed issues of fact.
Sundstrom, 489 F.2d at 862.
Id. at 862-63.
In contrast, the Tenth Circuit concluded (in an unpublished decision) that Federal Criminal Rule 25(a) does not prohibit the mid-trial substitution of judges in a bench-tried case when the first judge dies. See United States v. Guebara, 2000 WL 14397 (10th Cir. Jan. 10, 2000). The defendant in Guebara argued that, because Federal Rule 25(a) explicitly mentions jury trials, the rule was intended to forbid mid-trial substitution of judges in judge-tried cases. The Tenth Circuit responded:
We are not persuaded by Mr. Guebara's interpretation of Rule 25(a). There is nothing in Rule 25(a) to suggest that judicial substitution is only permissible in jury trials, and Mr. Guebara has failed to present any other authority to support this contention.
Guebara, 2000 WL 14397, at *6. (The defendant in Guebara apparently failed to find the Second Circuit's decision in Sundstrom.)
See also United States v. Diaz, 189 F.3d 1239, 1243-44 (10th Cir. 1999), rejecting the argument that Federal Rule 25 defines the only circumstances in which judicial reassignment is permissible. The court concluded that if the federal rule were construed in this manner, the rule would be inconsistent with the broad administrative powers granted to the federal courts in 28 U.S.C. § 137. Id. (2) State law concerning the mid-trial substitution of judges
State court decisions from the early twentieth century tended to follow the rule announced in Freeman v. United States — the rule strictly forbidding the substitution of judges. See the cases collected in Tracey A. Bateman, Annotation: Substitution of Judge in State Criminal Trial, 45 A.L.R.5th 591 (1997). See also Kurtis A. Kemper, Annotation: Power of Successor or Substituted Judge, in Civil Case, to Render Decision or Enter Judgment on Testimony Heard by Predecessor, 84 A.L.R.5th 399 (1997).
However, more modern decisions (those from the last forty years) have rejected the view that the Constitution forbids the substitution of judges. These decisions view the issue as one of procedure. Accordingly, if the substitution of judges is authorized by statute or court rule, or by state common law, and the defendant can not affirmatively demonstrate prejudice, then the substitution generally will be upheld.
For instance, in Bailey v. State, 397 N.E.2d 1024 (Ind.App. 1979), the court held that, once the presentation of evidence begins, it is unlawful to substitute judges without the defendant's consent. However, the Indiana court seems to have viewed the issue as a procedural one: the court reached its decision by noting that Indiana common law did not allow the mid-trial substitution of judges, and that Indiana had no rule of procedure altering that common-law rule. People v. Groves, 677 N.E.2d 1351 (Ill.App. 1997), likewise rejected a mid-trial substitution of judges on state common-law grounds rather than on constitutional grounds. The Illinois court declared that, "[a]s a general rule, a judge cannot finish the performance of a duty already entered upon by [a] predecessor where that duty involves the exercise of judgment and the application of legal knowledge to, and judicial deliberation of, facts known only to the predecessor."
Bailey, 397 N.E.2d at 1027.
Groves, 677 N.E.2d at 1361.
See also People v. Hicks, 528 N.W.2d 136 (Mich. 1994), enforcing Michigan Criminal Rule 6.440(B), which allows a substitution of judges only with the consent of both parties.
On the other hand, several states either have construed their common law to allow the substitution of judges when the necessity arises, or else they have court rules that expressly authorize the substitution of judges. The courts of those states have rejected constitutional challenges to their procedures and have upheld mid-trial substitutions of judges. See People v. Espinoza, 838 P.2d 204, 216-18 (Cal. 1992); Eaton v. State, 2000 WL 628330, at *2 (Del. Apr. 28, 2000); McIntyre v. State, 463 S.E.2d 476, 479 (Ga. 1995), federal habeas corpus denied, McIntyre v. Williams, 216 F.3d 1254 (11th Cir. 2000); State v. Misner, 410 N.W.2d 216, 218-19 (Iowa 1987); Commonwealth v. Carter, 669 N.E.2d 203, 206-08 (Mass. 1996); People v. Thompson, 687 N.E.2d 1304, 1308 (N.Y. 1997); State v. McKinley, 455 N.E.2d 503, 506-07 (Ohio App. 1982); People v. Ramírez, 822 S.W.2d 240, 246 (Tex.App. 1991); Medina v. State, 743 S.W.2d 950, 960 (Tex.App. 1988).
The Eleventh Circuit held that even if the substitution of judges was unlawful, it was not a "structural defect" that called for automatic reversal. 216 F.3d at 1258-1260. Accordingly, the Eleventh Circuit denied habeas relief because the defendant failed to affirmatively show that he was prejudiced by the substitution. Id. at 1260-63.
However, some of these decisions ( Misner, McKinley, and McIntyre) rely on the fact that the defendant failed to affirmatively demonstrate prejudice from the substitution, while the others ( Espinoza, Carter, Thompson, and Ramírez) rely heavily on the fact that the defendant was being tried by a jury, so that the substituted judge did not have to decide the ultimate issue of the defendant's guilt or innocence.
All of these court decisions limit the substitution of judges to instances where the successor judge is able to develop a sufficient familiarity with the pre-existing record to allow the new judge to adequately assume the role of decision-maker in the case. This requirement — and the corollary proposition that a mistrial is required when the new judge is unable to adequately step into the shoes of the predecessor judge — is either an express requirement of the court rule or is treated as an implicit, due process limitation on the substitution of judges. See, e.g., People v. Herbert, 511 N.W.2d 654, 657 (Mich. 1993) (Boyle, J., dissenting).
On the issue of demonstrable prejudice, the defendants challenging judicial substitutions will often assert that the successor judge could not fairly make decisions that required the judge to assess the credibility of prior witnesses who offered conflicting testimony. However, even when the new judge has to decide issues of credibility in connection with rulings of law, courts generally conclude that there is no prejudice to the defendant unless the defendant shows that the new judge did not adequately review the pre-existing record, or that an assessment of witness demeanor was crucial to the assessment of witness credibility. On this point, we note the words of the Ninth Circuit in Carbo v. United States, 314 F.2d 718 (9th Cir. 1963):
See, e.g., People v. Hampton, 586 N.E.2d 397, 402-03 (Ill.App. 1991); State v. Fuller, 479 A.2d 173, 175 (Vt. 1984).
Credibility involves more than demeanor. It [com]prehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence. . . . The inquiry then [should be] how importantly demeanor appears to loom in making the necessary credibility determinations. 314 F.2d at 749.
On the far end of the procedural scale, some states have court rules that apparently authorize mid-trial substitution of judges even in cases tried by a judge. These court rules explicitly deal with the problem of the new judge's having to decide disputed issues of fact, and they authorize the new judge to re-summon witnesses who have previously testified if this is necessary to allow the judge to decide these factual issues. Here, for example, is New Jersey Court Rule 1:12-3:
Proceedings in the Trial Courts in the Event of Disqualification or Inability.
. . .
(b) During Trial. If a judge is prevented during a trial from continuing to preside therein, another judge may be designated to complete the trial as if having presided from its commencement, provided, however, that the substituted judge is able to become familiar with the proceedings and all of the testimony therein through a complete transcript thereof.
(c) Disposition in the Interest of Justice. No substituted judge shall continue the trial in any matter pursuant to this rule unless satisfied, under the circumstances, that the judicial duties can fairly be discharged. If not so satisfied, the substituted judge shall make such disposition as the circumstances warrant, as where trial has taken place, by ordering a new trial or, in a case tried without a jury, by directing the recall of any witness.
Connecticut has a similar statutory rule of procedure, Connecticut General Statutes § 51-183f. The Connecticut courts have held that, under this rule, a judge who is asked to substitute in the middle of a trial should:
This statute reads: "If the term of office of any judge of the superior court expires during the pendency of any proceeding before him, or if any judge of the superior court is retired because of a disability, dies or resigns during the pendency of any proceeding before him, any other judge of that court, upon application, shall have power to proceed therewith as if the subject matter had been originally brought before him." Conn. Gen. Stat. Ann. § 51-183f (West 1985).
(1) become familiar with the entire existing record, including, but not necessarily limited to, transcripts of all testimony and all documentary evidence previously admitted; (2) determine, on the basis of [that] record and any further proceedings as the court deems necessary, whether the matter may be completed without prejudice to the parties; (3) if the court finds that the matter may not be completed without prejudice to the parties it should declare a mistrial, but if the court finds that the matter may be completed without prejudice to the parties then; (4) upon request of any party, or upon the court's own request, recall any witness whose testimony is material and disputed and who is available to testify without due burden; (5) take any other steps reasonably necessary to complete the proceedings; and (6) render a decision based on the successor judge's own findings of fact and conclusions of law.
Marsala v. Groonell, 771 A.2d 967, 973-74 (Conn.Super. 2000), summarizing the holding in Stevens v. Hartford Accident Indemnity Co., 615 A.2d 507, 511 (Conn.App. 1992).
(3) Alaska Criminal Rule 25(b)
Unlike Federal Criminal Rule 25(a), Alaska Criminal Rule 25(b) contains no language suggesting that the mid-trial substitution of judges might be limited to jury trials. Our rule reads:
(b) During Trial. If a judge holding superior court be prevented during a trial from continuing to preside therein, the presiding judge or the chief justice of the supreme court shall designate another judge of the superior court to . . . complete [the] trial, as if [that] other judge had been present and presiding from the commencement of [the] trial, [but only if there is a complete] stenographic or electronic record of [the] trial . . . so that the [new] judge . . . may become familiar with the previous proceedings at [the] trial.
(Indeed, our rule was first enacted by the supreme court in 1959, seven years before the federal rule. Other than a minor alteration to achieve gender-neutrality, the language of our rule is the same today as it was in 1959.)
See Alaska Supreme Court Order No. 4 (effective October 4, 1959).
See Alaska Supreme Court Order No. 1153 (effective July 15, 1994).
Nevertheless, the appellate courts of this state have never before addressed the question of whether Criminal Rule 25(b) authorizes the substitution of judges in the middle of a judge-tried case, or (if it does) what limitations or restrictions must be placed on this authority as a matter of due process.
As we explained earlier in this opinion, the resolution of these questions is crucial to a fair decision in Morgan's case, and the parties have not meaningfully briefed these questions. We therefore direct the parties to file supplemental briefs on these issues. The parties should address (1) whether Alaska law ever allows the mid-trial substitution of judges in a judge-tried case and, if mid-trial substitution is permitted under Alaska law, (2) whether Judge Weeks could meaningfully re-determine Morgan's guilt by reviewing the transcribed record of the trial held in front of Judge Jahnke, or (3) whether Judge Weeks should be permitted to re-determine Morgan's guilt after recalling one or more of the witnesses who testified at Morgan's trial.
Morgan's brief shall be due 30 days after the issuance of this opinion. The State shall have 30 days to respond. Morgan shall then have 15 days to file a reply brief (if he wishes).
After we have received these supplemental briefs, we shall decide whether Judge Weeks could properly re-determine Morgan's guilt on the existing record, or whether Judge Weeks should be permitted to re-determine Morgan's guilt after recalling one or more witnesses, or whether Morgan is entitled to a mistrial.
Conclusion
We reserve judgement on the issue of whether Judge Weeks could properly re-determine Morgan's guilt, and we await the supplemental briefs of the parties. However, the decision of the superior court is affirmed in all other respects.