Opinion
A-13592 7131
10-23-2024
MICHAEL C. REDFOX Appellant, v. STATE OF ALASKA, Appellee.
Rachel Cella, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Trial Court No. 4EM-18-00030 CR Bethel, Nathaniel Peters, Judge.
Rachel Cella, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge HARBISON, writing for the Court and concurring separately.
MEMORANDUM OPINION
Michael C. Redfox was convicted of first-degree assault (for punching and strangling Fannie Hootch), fourth-degree assault (for yelling and swinging his fist at Jeremiah Hootch), and second-degree escape (for fleeing after a village police officer arrested him).
AS 11.41.200(a)(1), AS 11.41.230(a)(3), AS 11.56.310(a)(1)(B), and AS 11.56.757(a), respectively.
Redfox filed a direct appeal, raising two claims. First, Redfox argues that the superior court violated his right to present a defense by denying his request to either allow his brother, Paul Redfox, to testify telephonically at trial or, alternatively, to use public funds to pay for Paul Redfox's travel and other expenses so he could testify in person. We affirm these rulings. For the reasons explained in this opinion, we conclude that the court did not abuse its discretion under Alaska Criminal Rule 38.1 and Alaska Criminal Rule 17(b) by denying these requests.
Second, Redfox argues that the State violated its discovery obligations by not providing him with copies of the recorded statements of three witnesses. We agree with Redfox that the State violated its discovery obligations, but we are unable to determine the appropriate remedy for this violation on the record before us. We accordingly remand this matter to the superior court for further proceedings.
Background facts and proceedings
In March 2018, Redfox and Fannie Hootch were in a romantic relationship and lived together in the village of Emmonak. One evening, Redfox and Hootch were at their house when an argument ensued. When the argument started, Hootch's brother, Jeremiah Hootch, and Redfox's two brothers, Gregory Pitka and Paul Redfox, were present. The argument escalated. Fannie and Jeremiah Hootch both testified at trial that Redfox strangled Fannie and threw her against a wall, that Fannie stabbed Redfox with a screwdriver in self-defense, and that Redfox threatened Jeremiah Hootch when he tried to intervene.
Following this incident, Redfox was charged with multiple counts of assault and one count of second-degree escape. Redfox was also charged in a separate case with violating conditions of release for committing a new crime while on bail release. The Alaska Public Defender Agency was appointed to represent Redfox in both cases. Five months into the agency's representation, Redfox requested a representation hearing. The court conducted the requested hearing and granted Redfox's request to represent himself.
After this ruling, the prosecutor asked whether Redfox had received discovery from the State. Redfox replied that while he had received most discovery, one CD that he had received was blank or inaudible, and he had not yet received Fannie Hootch's medical records. The prosecutor agreed to provide Redfox with this missing discovery, commenting that the State would "probably just resubmit everything[.]"
Redfox subsequently filed a written motion to compel the State to provide Hootch's medical records and the missing audio files. In his motion he pointed out that he had previously asked for this discovery and the State had indicated that it would provide it. He explained that he still did not have the medical records or audio files and that he had contacted the district attorney's office multiple times requesting them.
Rather than filing a responsive motion, the State provided Redfox with a redacted copy of Hootch's medical records and filed a notice indicating that it had done so. The superior court later issued an order finding that the State had fully complied with its discovery obligations and that Redfox's motion to compel was moot. Redfox later renewed his motion after a trooper confirmed during the trial that he had made audio recordings when he interviewed three of the witnesses. Despite these many requests, Redfox never received the recordings of the interviews.
Redfox's jury trial took place in Bethel. On the first day of trial, the court discussed housekeeping matters with the parties outside the presence of the jury. During this exchange, Redfox requested permission for his brother, Paul Redfox, to testify telephonically. The prosecutor objected, and the court ruled that "all parties need to fly their witnesses out here."
Redfox then asked the court to assist him in securing his brother's personal presence at trial by paying for the associated travel expenses. As authority for this request, Redfox cited Alaska Criminal Rule 17(b). The superior court denied Redfox's request, reasoning that, while Rule 17(b) requires such costs to be paid by a state agency that is representing an indigent defendant, it does not provide for payment of these costs for defendants who are not represented by a state agency. Explicitly relying on this Court's opinion in Crawford v. State, the court concluded that, because Redfox had chosen to represent himself, Rule 17(b) did not require that public funds would be used to pay for his witnesses' travel costs and other expenses. After this ruling, Redfox did not call Paul Redfox (or any other witness).
Crawford v. State, 404 P.3d 204, 216-22 (Alaska App. 2017) (concluding that AS 18.85.100(a) does not require the Alaska Public Defender Agency to fund litigation support services for indigent criminal defendants who have waived their right to be represented by an attorney, but leaving unanswered the question of how the State of Alaska will fund such services when an unrepresented defendant makes the necessary threshold showing).
The jury ultimately found Redfox guilty of all charges. During Redfox's sentencing hearing, he called Paul Redfox as a witness, and Paul testified about the events surrounding Redfox's assault of Hootch. At the close of the hearing, the court sentenced Redfox to a composite sentence of 17 years and 30 days of active imprisonment and also revoked Redfox's probation in two other cases.
This appeal followed.
The superior court did not violate Redfox's right to present a defense by applying the Alaska Criminal Rules in a manner that prevented Paul Redfox from testifying
On appeal, Redfox contends that Paul Redfox would have provided relevant, impeaching, and potentially exculpatory testimony, and that the superior court violated his right to present a defense by not allowing Paul to testify by telephone or, alternatively, by not providing public funds to pay for Paul's travel expenses so that he could testify in person.
Redfox's jury trial began in March 2019. Prior to Redfox's trial, Redfox did not file a motion requesting assistance paying the travel or other expenses of any witnesses. On the first day of trial, the State asked the court whether one of its witnesses, an inmate incarcerated in Wasilla, could testify telephonically. The court asked Redfox for his position, clarifying that "the rule says both parties have to agree" to telephonic testimony and that "[i]f you don't want to, that's fine." Redfox replied that if the State would allow Paul Redfox to testify by telephone, he would consent to the State's witness appearing by telephone. The prosecutor objected to Paul's telephonic appearance, noting that the State had attempted to locate Paul before trial, but was unable to. The prosecutor also pointed out that Redfox had objected to one of the State's witnesses appearing by telephone at a pretrial evidentiary hearing. The superior court ruled that in light of both parties' objections, all witnesses must testify in person.
Redfox then asked the court to assist him in obtaining Paul Redfox's personal presence for the trial. Citing to Alaska Criminal Rule 17(b) and the compulsory process clause, Redfox argued that, because he was indigent, the court was required to pay for Paul's travel expenses.
The superior court denied Redfox's request, ruling that Rule 17(b) only applies to defendants with appointed counsel, and that Redfox could not rely on Rule 17(b) because he chose to represent himself. Redfox did not call Paul Redfox to testify at trial, and the jury ultimately convicted him of all charged offenses.
On appeal, Redfox claims that the superior court erred by interpreting Alaska Criminal Rule 38.1 and Alaska Criminal Rule 17(b) in a manner that prevented Paul Redfox from testifying at trial and that these rulings, taken together, infringed on his constitutional right to present a defense.
The superior court did not abuse its discretion by not allowing Redfox's witness to testify by phone
Under Alaska Criminal Rule 38.1, the court may only allow telephonic participation of witnesses at trial "with the consent of the prosecution and the defendant." On appeal, Redfox acknowledges that Rule 38.1 did not authorize the court to permit Paul Redfox to testify telephonically over the prosecutor's objection. However, he points out that, under Alaska Criminal Rule 53, the court is permitted to relax or dispense of criminal rules when "strict adherence to them will work injustice." Redfox argues that the court should have relied on Rule 53 to relax the Criminal Rule 38.1 requirements because Paul's testimony was important to his defense and the State's motive for objecting was retaliatory.
But in this case, Redfox was charged with multiple counts of assault, and the State's case depended on the jury determining that its witnesses (including Fannie Hootch) were credible and determining that the defense was not credible. Given that this trial required the jury to evaluate the credibility of eyewitness testimony, we cannot say that declining to relax the requirements of Rule 38.1 was unjust in this case.Instead, we conclude that the superior court could reasonably insist on strict adherence to the rule, requiring witnesses to testify in person, in order to allow the jury to observe the witnesses' demeanor and thus better evaluate their credibility.
Alaska R. Crim. P. 53 (authorizing the court to relax the Alaska Rules of Criminal Procedure "where it shall be manifest to the court that a strict adherence to them will work injustice").
See Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1136-37 (Alaska 2001) (discussing the importance of in-person testimony when credibility is at issue).
Redfox also claims that the court should have relaxed the requirements of Rule 38.1 because the State had a retaliatory motive for objecting to Paul Redfox's telephonic appearance. But Redfox asserted this claim for the first time on appeal. As a result, the parties did not develop an evidentiary record about the State's motives, and the trial court did not have an opportunity to make factual findings or to otherwise rule on this claim in the first instance. We accordingly conclude that Redfox's claim of retaliation is waived.
But even if we were to consider Redfox's claim, the existing record does not support it. When the superior court asked the State whether it agreed that Paul Redfox could testify telephonically, the prosecutor replied:
No, Judge. I had said that I would want to know who it is before I agreed to that. And Paul Redfox is someone my office tried to find, and we weren't able to for this trial. So no, I'm not willing to agree to his telephonic testimony. I would also note that we had to fly [VPO] Brown out here for the evidentiary hearing because Mr. Redfox wouldn't agree to his telephonic testimony for the evidentiary hearing.
Although the prosecutor referenced Redfox's prior objection to the telephonic testimony of a State witness at an evidentiary hearing, the prosecutor's comment does not demonstrate that the State's objection was based on "unprincipled" or "retaliat[ory]" reasons. Indeed, the comment equally suggests that the prosecutor had valid concerns about allowing Paul Redfox to testify by telephone, given that the State had not located and interviewed him prior to the trial and thus had no notice of the substance of his testimony. Under these circumstances, the prosecutor would want Paul to testify in person.
When a witness testifies by telephone, it may be difficult to cross-examine them, particularly if it is necessary to refresh their memory or impeach their testimony with documents or other physical evidence.
The superior court did not abuse its discretion by not providing public funds to pay for Redfox's witness expenses
Redfox next argues that the superior court was required by Alaska Criminal Rule 17(b) and the compulsory process clause to provide public funding for travel costs and other expenses necessary to secure Paul Redfox's personal appearance at trial.
The United States and Alaska Constitutions afford the criminally accused the "right . . . to have compulsory process for obtaining witnesses in his favor[.]" The United States Supreme Court has interpreted the compulsory process clause as encompassing "the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt."
U.S. Const. amend. VI; Alaska Const. art. I, § 11.
Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987).
These rights are animated by Rule 17(b), which affords indigent criminal defendants the right to compulsory process at government expense. Under this rule, the court clerk must issue subpoenas for defendants "financially unable to pay[,]" and the cost incurred by this process, including any witness fees, "shall be paid by the public agency providing representation."
Alaska R. Crim. P. 17(b); McCracken v. State, 521 P.2d 499, 507-08 (Alaska 1974).
On the first day of trial, Redfox moved for funds to pay for Paul Redfox to travel to Bethel. The superior court denied this motion, ruling that Rule 17(b) did not authorize Redfox to access public funds for this purpose because he was not represented by a public agency.
As noted in the concurrence, Rule 17(b) appears to provide that indigent pro se defendants do, under certain circumstances, have the right to secure the testimony of witnesses at public expense. However, in this case, because Redfox did not ask the court to pay for Paul Redfox's travel expenses until after trial began, the court had broad discretion to deny the request.
The concurrence also notes that this rule does not directly explain who is responsible to pay for these costs and fees if an indigent defendant is not represented by an attorney. We agree with the concurrence that the Alaska Legislature and the Alaska Supreme Court should address this problem as soon as practicable. We also agree that a return to the requirement that unrepresented defendants must demonstrate materiality in order to use public funds to pay for their witnesses' costs and fees is a workable solution.
Sullivan v. State, 1988 WL 1511710, at *3 (Alaska App. Sept. 7, 1988) (unpublished) (holding that the court did not abuse its discretion denying a Rule 17(b) motion because "the request was not made until the day of the probable cause hearing"); United States v. Butler, 885 F.2d 195, 200 (4th Cir. 1989) (holding that "a trial court acts within its discretion in denying a Rule 17(b) motion if the defendant has made no effort to secure the witness' testimony before trial"); United States v. Wyman, 724 F.2d 684, 686 (8th Cir. 1984) (explaining that trial courts are afforded "wide discretion" in evaluating Rule 17(b) motions, and that compulsory process "is not an absolute right but, like many other trial decisions, is a matter committed to the sound discretion of the trial court"); United States v. Muho, 978 F.3d 1212, 1219 (11th Cir. 2020) ("[A]ppellate courts have upheld the refusal of district courts to issue a Rule 17(b) subpoena where the request was untimely[.]" (quoting United States v. Rinchack, 820 F.2d 1557, 1566 (11th Cir. 1987)); Rinchack, 820 F.2d at 1566 (holding that the trial court did not abuse its discretion by denying a Rule 17(b) motion filed after trial began when the defendant had ample opportunity to make the request before trial).
Furthermore, the record does not support Redfox's contention that Paul Redfox would have provided relevant, impeaching, and "potentially exculpatory" testimony if he had been able to testify at trial. During the trial, Fannie Hootch and Jeremiah Hootch both testified that Redfox strangled Fannie Hootch and threw her against a wall, that Fannie Hootch stabbed Redfox with a screwdriver in self-defense, and that Redfox threatened Jeremiah Hootch when he tried to intervene. Redfox asserts that Paul Redfox's testimony would have cast doubt on these claims, undermining Fannie's credibility.
But when Paul Redfox testified at Redfox's sentencing hearing, he testified that he left the house for a significant period of time on the day of Redfox's altercation with Fannie Hootch.
During his testimony, Paul Redfox detailed the various events that preceded the incident described by Fannie and Jeremiah Hootch. However, he indicated that as the argument was escalating, he left the house for about fifteen minutes, and when he returned, Fannie Hootch had blood on her shirt and was crying. Paul Redfox also testified that he saw Fannie Hootch from five feet away on the day after the incident and did not see any bruises on her.
Redfox, like all criminal defendants, has the constitutional right to present witnesses in his defense. But this right is subject to other rules governing criminal administration, including the Alaska Criminal Rules and the United States and Alaska Constitutions. Here, the superior court did not abuse its discretion by refusing to allow Paul Redfox to testify telephonically over the State's objection, nor by denying Redfox's request to provide funding for Paul Redfox's travel expenses, given that Redfox did not make this request until the first day of trial. We accordingly reject Redfox's argument that his constitutional right to present a defense was violated.
Chambers v. Mississippi, 410 U.S. 284, 302 (1973); State v. Murtagh, 169 P.3d 602, 608 (Alaska 2007) (explaining that due process "guarantees to persons accused of crime the right to prepare and present a defense"); Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) ("[A] defendant's right to present a defense is a fundamental element of due process.").
See Rinchack, 820 F.2d at 1566.
The State violated Alaska Criminal Rule 16 by not making the witness recordings available to Redfox
Redfox next contends that the State violated its disclosure duties under Alaska Criminal Rule 16 by failing to provide him with copies of the audio recordings of the interviews of Harold Gregory, Pearlie Kameroff (who is also referred to in the record as Pearl Gregory), and Jeremiah Hootch, and that remand is necessary to determine the appropriate remedy for this discovery violation.
Criminal Rule 16 governs discovery between the State and the defendant in a criminal trial: "In order to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, and the adversary system."
Under Rule 16, the prosecutor must disclose to the defense the "names and addresses of persons known by the government to have knowledge of relevant facts and their written or recorded statements or summaries of statements." "It is the prosecutor's obligation to use 'diligent good faith efforts' to make all such discoverable material available to defense counsel." If a party willfully violates their disclosure duties, the "court may impose appropriate sanctions" but even an unintentional violation entitles the defendant to appropriate remedies.
Des Jardins v. State, 551 P.2d 181, 188 (Alaska 1976).
Russell v. Municipality of Anchorage, 626 P.2d 586, 591 (Alaska App. 1981).
Redfox argues that the State violated its disclosure duties because it was in possession of recordings of statements of three witnesses who testified at trial (Harold Gregory, Pearlie Kameroff, and Jeremiah Hootch), but it did not provide him with copies of these recordings either before or during the trial, despite his repeated requests for them.
When Redfox litigated this issue before the trial court, the court determined that (1) Redfox did not bring this issue to the court's attention prior to the trial; (2) the State provided him with an audio disc containing a copy of these recordings prior to the trial, and (3) at the time of trial, he either still had a copy of the recordings or he deleted them "for a strategic purpose." On appeal, Redfox acknowledges these factual findings but contends that they are clearly erroneous. In response, the State concedes that these discovery findings were not supported by the record.
See Villars v. Villars, 336 P.3d 701, 709 (Alaska 2014) (explaining that an appellate court reviews factual findings for clear error).
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case).
We have reviewed the record and we agree with the parties that Redfox requested the audio recordings several times prior to trial, explained that he had been given two audio CDs but that several of the files were blank or inaudible, and filed a pretrial motion to compel the State to disclose the recordings. Furthermore, as we are about to explain in greater detail, we also agree that there is no support in the record for the superior court's finding that Redfox either had a copy of the recordings at the time of the trial or deleted them for a strategic purpose.
During Redfox's cross-examination of a trooper that had been involved in the investigation, the trooper testified that he had recorded the three relevant interviews. Hearing this, Redfox addressed the court, stating, "Your Honor, at this time I'd ask the prosecutor to supply me with the audio recording of Harold and Pearl Gregory, and the audio recording of Jeremiah Hootch."
The court excused the jury in order to address this request. After the jury left the courtroom, the prosecutor told the court that the State had provided all of the discovery to Redfox prior to the trial. The prosecutor suggested that Redfox had disposed of the audio recordings and stated, "I think he's trying to sabotage the [State's] case." Redfox responded that he had a letter from his former public defender confirming that one of the discs was blank. He also expressed his belief that there was no way that he "could remove audio from a disc."
The prosecutor disagreed with Redfox's assertion that he had no way of deleting audio from a disc, and suggested that information could be deleted by "press[ing] the delete button." The prosecutor claimed that Redfox was engaging in "a delay tactic," and he also asserted that Redfox had "never mentioned this before" despite "ample opportunity to bring this up to the Court." According to the prosecutor, Redfox instead had "chosen . . . to tell the whole jury on open record that he's missing discovery [and] that the State hasn't provided him discovery." As a remedy for this alleged conduct, the prosecutor requested a curative instruction informing the jury "that discovery [was] made in this case prior . . . to trial commencing."
The court conducted a brief evidentiary hearing. A paralegal for the State testified that she had duplicated the audio discs and sent them to Redfox's former defense attorney. She also testified that the State's copies of law enforcement CDs are restricted, meaning that the audio files cannot be manipulated or deleted. The paralegal indicated that she believed that the duplicated copies provided to the defense carried the same restrictions. When asked whether the defense copies of the audio discs could be altered, the paralegal responded that she did not know of any way to do that.
After the paralegal was excused, Redfox asked the court to review the two discs in his possession. When the court clerk was unable to play the audio files on the discs, the parties stipulated that eight of the files were blank and that the only files that could be played were recordings of the interviews with Fannie Hootch.
Redfox then provided the court with a letter from his former defense attorney. The letter noted that one of the discs in the attorney's possession had "no discernible audio," and as a result, one of the discs she was sending him was blank.
The court took a short recess to consider the evidence and then issued an oral decision. In its findings, the court stated that the paralegal had testified that it is possible to remove or delete files from duplicated discs that are sent to the defense. (In the appellate briefing, the parties agree that the paralegal actually testified to the opposite: that she was unaware of any way to remove or delete files from a duplicated disc.) The court also found that Redfox failed to bring the discovery problem to its attention prior to trial, and that Redfox had made a strategic decision to discuss the discovery issue in front of the jury. The court further found that Redfox "has or had the audio that he claims to be missing." According to the court, Redfox either "still ha[d] the complete audio, or a duplicate of it somewhere, . . . or else he had it and deleted it for a strategic purpose."
The court then gave the jury a curative instruction, telling the jury that Redfox had been given all of the discovery that "could be provided."
We conclude that this record supports the State's concession that the court erred in finding that, at the time of trial, Redfox either had a copy of the recordings or had deleted them "for a strategic purpose." Instead, the record demonstrates that Redfox was never given the recordings. Given this record, and the fact that Redfox repeatedly asked for the recordings prior to his trial, we further conclude that the State violated Criminal Rule 16 by failing to disclose the recordings to Redfox.
This matter must be remanded to the superior court for further proceedings
A violation of Rule 16(b)(1)(A)(i) is presumptively prejudicial to the nonoffending party. However, as Redfox points out, because the recordings were never provided to him, the content of the withheld recordings is not part of the appellate record. Redfox thus contends that a remand is necessary to give the trial court an opportunity to determine whether and to what extent he was prejudiced by the discovery violation and to craft an appropriate remedy for the discovery violation.
Bostic v. State, 805 P.2d 344, 347-48 (Alaska 1991).
We agree that we have insufficient information to evaluate the prejudice to Redfox and that remand is required. As part of the remand proceedings, we expect that the court and the parties will review the trial proceedings and the recordings of the interviews, and that the State will be given an opportunity to attempt to meet its burden of establishing that Redfox was not prejudiced by the discovery violation. In determining the appropriate remedy or sanction, the trial court must consider the degree of culpability involved on the part of the State along with the importance of the evidence which was not disclosed.
Id. at 347-49; Young v. State, 374 P.3d 395, 431 (Alaska 2016).
While the fault of the offending party is not relevant to the question of whether there has been a discovery violation, it is relevant to determining the appropriate sanction or remedy. Putnam v. State, 629 P.2d 35, 43 (Alaska 1980); Nicholson v. State, 570 P.2d 1058, 1063 (Alaska 1977).
Conclusion
We REMAND this case for further proceedings regarding the discovery violation, but in all other respects we AFFIRM the judgment of the superior court. We retain jurisdiction.
JUDGE HARBISON, concurring
I write separately to address a significant gap in our current law governing the payment of witness fees for self-represented indigent defendants.
When a party wants to compel a witness to appear at a judicial proceeding, the party may ask the court to issue a subpoena requiring that the witness appear in court at a particular time and place. In order for a subpoena to be valid, the party is required to deliver - i.e., "serve" - the subpoena to the witness. But in order for that service to be valid, the party who requests the subpoena is required to pay a witness fee and travel costs.
Alaska R. Crim. P. 17(d), (g); Alaska R. Civ. P. 45(c), (f).
Alaska R. Crim. P. 17(d); Alaska R. Civ. P. 45(c). As a rule, this payment must be made at the time the subpoena is served, but the prepayment requirement does not apply to the State or to defendants represented by court-appointed counsel. Thus, as a practical matter, prepayment of a witness's costs and fees is relatively uncommon in criminal cases.
What happens, however, when a defendant is unable to pay the required costs and fees? Existing Alaska law provides only a partial answer. Alaska Criminal Rule 17(b), the primary rule governing this question, states that courts "shall" issue a subpoena for "a defendant financially unable to pay the fees of the witness." Additionally, a subpoena issued under this provision "shall contain an order to appear without the prepayment of any witness fee." It is therefore clear that courts are required to issue enforceable subpoenas on behalf of defendants, even when those defendants cannot pay the usual costs and fees associated with the subpoena. However, the law does not clearly explain who must pay these costs and fees when the defendant cannot.
Rule 17(b) states that the costs and fees of the witness "shall be paid by the public agency providing representation." Thus, if an indigent defendant is represented by the Public Defender Agency or the Office of Public Advocacy, it is clear the required funds must come from the agency's coffers. But Rule 17(b) makes no provision for self-represented indigent litigants.
This is a serious problem. Nothing in the rule suggests an intent to abrogate the usual requirement that subpoenaed witnesses be paid a reasonable fee and travel costs - to the contrary, the rule appears to require that those fees are paid even when the defendant is unable to pay them. And while the rule requires courts to issue enforceable subpoenas even if the defendant is "unable to pay" the associated expenses, it fails to state how the expenses will be paid when an indigent defendant is selfrepresented.
The State takes the position that if the defendant cannot pay these costs, they are not entitled to the benefits of an enforceable subpoena. According to the State, the rule ties the payment of witness fees to representation by court-appointed counsel, and a consequence of a defendant's choice to represent themself is that they may not have the resources necessary to robustly present their case at trial.
The State is certainly correct that Rule 17(b) ties the payment of witness fees to the appointment of counsel, in the sense that the rule only contemplates payment of fees for witnesses who are subpoenaed by a defendant who is represented by appointed counsel. But the underlying problem, which the State fails to address, is that the rule does not tie the issuance of an enforceable subpoena to the appointment of counsel, as it clearly requires subpoenas to be issued for all defendants who are financially unable to pay for the fees (and also requires such a subpoena to order the witness to appear without the prepayment of any witness fee).
I note that the State's argument raises a separate constitutional issue: whether the government can condition the payment of witness fees on agreeing to be represented by court-appointed counsel. We left this question open in Crawford v. State, a case about expert witness fees. See Crawford v. State, 404 P.3d 204, 206 (Alaska App. 2017). But I question whether such an approach would be constitutional.
The rule's applicability to all indigent defendants is made fairly clear in its first sentence, which provides that a "subpoena shall be issued . . . for a defendant financially unable to pay the fees of the witness." By its terms, this language applies to all defendants who are unable to pay witness fees, not just those who are represented by court-appointed counsel. And if the first sentence is not clear enough, the second sentence is even clearer. It first explains how determinations of financial inability to pay shall be made and then provides that "if the defendant is represented by court appointed counsel[,] no further showing of financial inability shall be required." Thus, the second portion of the sentence clearly contemplates application of this rule to all defendants who are "financially unable to pay" regardless of whether they are "represented by court appointed counsel."
Id.
Id.
The history of the rule further supports this conclusion. The Alaska Criminal Rules were promulgated in 1959, and the original version of Alaska Criminal Rule 17(b) was virtually identical to the then-existing version of Federal Criminal Rule 17(b). The rule stated:
(b) Indigent Defendants. The court or a judge thereof may order at any time that a subpoena be issued upon motion or request of an indigent defendant. The motion or request shall be supported by affidavit in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that the evidence of the witness is material to the defense, that the defendant cannot safely go to trial without the witness and that the defendant does not have sufficient means and is actually unable to pay the fees of the witness. If the court or judge orders the subpoena to be issued it shall contain an order to appear without the
prepayment of any witness fee. The costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the state.But Rule 17(b) has been amended since it was originally promulgated, most extensively in 1973, and it now reads:
(b) Defendants Unable to Pay. A subpoena shall be issued by the clerk as provided in section (a) for a defendant financially unable to pay the fees of the witness. The determination of financial inability shall be made in accordance with the criteria provided under Rule 39(b) of these rules, and if the defendant is represented by court appointed counsel no further showing of financial inability shall be required. Subpoenas issued under this section (b) shall contain an order to appear without the prepayment of any witness fee. The cost incurred by the process and the fees of the witness so subpoenaed, shall be paid by the public agency providing representation.
Former Alaska R. Crim. P. 17(b) (1959).
Compared to the current rule, the original version of the rule was different in two significant ways. First, the current rule states that "[a] subpoena shall be issued by the clerk" whenever it is requested by the defendant. But the original version of the rule stated that a subpoena "may" be issued by "[t]he court or a judge," and it further provided that in order to obtain a subpoena, the defendant was required to show "that the evidence of the witness is material to the defense" and that "the defendant cannot safely go to trial without the witness." Thus, under the original version of the rule, the issuance of a subpoena was not a routine administrative task performed by the court clerk, but was rather an exercise of discretionary judicial authority that required an initial showing of "materiality" by the defendant.
Id. (emphasis added).
Former Alaska R. Crim. P. 17(b) (1959) (emphasis added).
Second, the original version of the rule provided that the costs and fees associated with the subpoena "shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the state," rather than "paid by the public agency providing representation." It was therefore clear, under the original version of the rule, that the government would pay for witness fees incurred by self-represented defendants and by defendants represented by court-appointed counsel.
Former Alaska R. Crim. P. 17(b) (1959).
Unfortunately, this clarity disappeared when the rule was amended in 1973, for all the reasons already explained above. There is nothing in the history of that amendment, however, to suggest that the Alaska Supreme Court intended to exclude self-represented litigants from Rule 17's purview. Instead, the history shows that the purpose of the amendment was to improve the subpoena process for represented litigants. It appears that in adopting these changes, the court inadvertently failed to provide clear guidance for cases involving self-represented indigent litigants.
SCO 157 (effective Jan. 31, 1973).
The history of the rule is sparse, but it indicates that the new amendments were "proposed to correct the problems pointed out in an article by Stanley M. Gordon writing in the Alaska Law Journal for January, 1971, at page 73 and litigated in Smiloff v. State, 439 P.2d 772 (Alaska 1968)." Mr. Gordon's article argued that it was unfair for judges to act as a gatekeeper for litigants seeking Rule 17(b) subpoenas because it required courts to substitute their judgment about how to present a defense for that of counsel. In response to concerns that abandoning this gatekeeping role would permit defendants to request frivolous subpoenas at State expense, Mr. Gordon argued that defense attorneys are bound by the rules of professional conduct and are therefore ethically prohibited from making frivolous motions on behalf of their clients.
Letter from Judge Victor D. Carlson to Chief Justice George F. Boney regarding the Report of the Criminal Rules Revision Committee (July 11, 1972), at 2 (contained in the Alaska Court System rule file for Supreme Court Order 157).
Stanley M. Gordon, Smiloff v. State: An Alternative Argument in Favor of the Indigent's Right to Compulsory Process of Witnesses, 9 Alaska L. J. 73, 78-80 (1971).
Id. at 81-82.
The Alaska Supreme Court agreed with these criticisms and amended the rule to remove the gatekeeping role of the court and to clarify that costs and fees would be paid by the Public Defender Agency, rather than in the "same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the state." (The court further amended the rule in 1989 so that the costs would be paid by whatever "public agency [was] providing representation.")
SCO 939 (effective Jan. 15, 1989).
Unfortunately, however, there was a flaw in Mr. Gordon's proposal: it presupposed that all indigent defendants would be represented by a public agency. But that is not true. Some indigent defendants choose to exercise their constitutional right to self-representation, and the changes to Rule 17(b) fail to account for these litigants. Because self-represented litigants are not represented by any "public agency," the rule's requirement that funding be provided by the "public agency providing representation" means that it does not provide a specific funding mechanism for self-represented litigants. Furthermore, unlike attorneys, self-represented litigants are not bound by any rules of professional conduct that would prohibit them from making frivolous requests, and even a pro se litigant acting in good faith may lack the legal skills and knowledge to determine whether a request is frivolous.
Mr. Gordon's article simply overlooked these problems, and the Alaska Supreme Court appears to have followed suit. Indeed, the gaps in the amendment made it past the "intensive review" of the Criminal Rules Revision Committee, and were "based on recent Alaska cases, amendments proposed and adopted to the Federal Rules of Criminal Procedure, the American Bar Association Project on Minimum Standards for Criminal Justice . . . [and] the suggestions of the bar."
Letter from Judge Victor D. Carlson to Chief Justice George F. Boney regarding the Report of the Criminal Rules Revision Committee (July 11, 1972), at 1 (contained in the Alaska Court System rule file for Supreme Court Order 157).
What seems clear, however, is that this was an oversight, rather than an attempt to prohibit self-represented indigent litigants from subpoenaing witnesses. This interpretation is reinforced by the interplay between Rule 17(b) and the compulsory process clause. As the majority opinion explains, the United States and Alaska Constitutions afford all criminal defendants the right to "the government's assistance in compelling the attendance of favorable witnesses at trial[.]" If Rule 17(b) were interpreted in a manner that prohibited self-represented indigent defendants from subpoenaing witnesses in their favor, application of the rule would, under certain circumstances, be unconstitutional.
Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987); U.S. Const. amend. VI; Alaska Const. art. I, § 11.
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (holding that the compulsory process clause is violated when the government arbitrarily deprives a defendant of testimony that would have been relevant, material, and vital to their defense (citing Washington v. Texas, 388 U.S. 14, 87 (1967))).
We are therefore back where we started: the rule requires courts to issue enforceable subpoenas for self-represented indigent defendants who are unable to pay the associated witness costs, but it fails to tell us how those costs will be paid. The rule also does not address the pitfalls that may arise if the court does not exercise any gatekeeping function when requests for subpoenas are made by self-represented litigants.
These are serious problems, and though they may ultimately prove capable of judicial resolution, the better approach would be to solve these problems through intentional policy-making, not court decisions construing ambiguous and difficult-to-implement rules. I therefore encourage the Alaska Legislature and the Alaska Supreme Court to address this problem proactively. Although it is the province of those bodies to determine how to solve this problem, I note that the problem did not exist until Rule 17(b) was amended in 1973. A return to that rule, at least for selfrepresented defendants, would be a partial solution: it would require the use of public funds to pay for a defendant's witnesses, but only if the defendant can first show their materiality. Furthermore, given that neither the Alaska Public Defender Agency nor the Office of Public Advocacy are authorized to pay costs that are incurred by litigants who are not represented by their agencies, it seems likely that the court system would be required to pay the witnesses' costs and fees.
Crawford v. State, 404 P.3d 204, 216 (Alaska App. 2017).
With these concerns in mind, I concur in the judgment of the court.