GOVERNOR’S CONDUCT SERIOUSLY ERODED A GOOD PROCESS
BY JEFFREY ROBINSON
ALASKA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
The Alaska Association of Criminal Defense Lawyers is a statewide nonprofit organization whose goal is “to represent the association before the legislative, executive, and judicial bodies which determine policy for the state and federal governments in a manner that promotes the mission of the association and its objectives and purposes. To preserve, protect, and defend the adversary system of justice and the Alaska and U.S. Constitutions.”
AKACDL wishes to call attention to Gov. Bill Walker’s recent action rescinding a judicial appointment made to a highly qualified attorney on the basis of her advocacy in a single criminal case.
After attorney Julie Willoughby was recommended to the governor to serve as a Juneau Superior Court Judge by the Alaska Judicial Council, Gov. Walker called her and told her he had selected her.
Ms. Willoughby’s application for the Juneau Superior Court judgeship went through Alaska’s widely praised constitutional and merit-based process for the selection of judges. She was rated by her peers as the most qualified person applying for the job; the Alaska Judicial Council, which is made up of the Chief Justice of the Alaska Supreme Court, three attorney members and three public members, one of whom is a retired law enforcement officer, recommended Ms. Willoughby and one other applicant to the governor. Gov. Walker interviewed both applicants and then offered Ms. Willoughby the job.
But then, according to a July 2 article published in the Juneau Empire, an unnamed staff member provided Gov. Walker a brief Ms. Willoughby wrote while defending a client in a sex abuse of a minor case. According to Scott Kendall, the governor’s chief of staff, Ms. Willoughby’s brief, filed in the summer of 2015, shocked the governor’s conscience. Mr. Kendall further accused Ms. Willoughby of “attacking a child victim and misstating statutory rape laws.” Gov. Walker then rescinded the appointment of Ms. Willoughby and selected another candidate.
The brief Mr. Kendall referred to is a 44-page memorandum in support of a motion to dismiss for constitutional violations and prosecutorial failure to follow guidelines. Far from attacking the child victim or misstating the law, Ms. Willoughby raised a number of complex constitutional challenges to Alaska’s criminal sentencing statutes as they existed at the time.
Ms. Willoughby argued that her client, who was 18 at the time the crimes were allegedly committed in 2013, would likely die in jail should he be convicted of all counts. That outcome, and the manner in which Ms. Willoughby believed the case was being prosecuted, raised due process, cruel and unusual punishment, and equal protection concerns.
The fourth, fifth, sixth and eighth amendments of the U.S. Constitution, whose protections are applied to state governments through the Fourteenth Amendment, protect the rights of criminal defendants, including the rights of the clients Ms. Willoughby has well and ably served. And that is what Ms. Willoughby argued in the memo that the governor took offense to.
Alaska lawyers, including Ms. Willoughby, are bound by the Rules of Professional Conduct. The rules explain that as an advocate, “a lawyer zealously asserts the client’s position under the rules of the adversary system.” According to Alaska Rule of Professional Conduct 1.2(b), “(a) lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.”
Read in full and in context, it is challenging to comprehend how Gov. Walker (or his staff) conflated Ms. Willoughby’s advocacy of her client’s constitutional rights with an endorsement of child sexual abuse. The governor’s decision to punish her for this advocacy is contrary to our system for judicial selection.
Gov. Walker’s action reveals a lack of recognition for the important role of the defense lawyer in our criminal justice system. More broadly, such action sends a chilling message to any lawyer who might aspire to the bench — be meek in your advocacy and avoid the hard cases or unpopular issues. This cuts to the core of what it should mean to be a lawyer.
Throughout our history, it has been the bravery of lawyers who have taken the hard or unpopular cases that has protected and expanded liberty in this country and especially in Alaska. Lawyers have always been at the forefront of civil rights movements, of curbing governmental excess, and of assuring that the promises of our constitution to due process and equal rights under the law are fulfilled.
In Alaska, lawyers have been at the forefront of protecting our rights of privacy against government intrusion. Lawyers are frequently tasked with representing the “undesirable.” If the only judges the governor will appoint are those who have avoided controversy or watered down their ethical obligations, he will have created a weakened judiciary.
It is the role of the lawyer in such cases to make what may be unpopular arguments. To punish a lawyer for doing so is wrong and denotes a fundamental misunderstanding of the role of the defense lawyer. If lawyers are vilified for accepting unpopular clients, the entire system is damaged. Those who are viewed as unpopular clients are the most likely to face bias and suffer injustice in our imperfect legal system. And it is the honorable role of defense counsel to protect the rights of the unpopular.
Under Gov. Walker’s short-sighted and ill-informed conduct here, if Atticus Finch, the brave lawyer who represented a black man charged with a sex crime in the book “To Kill A Mockingbird” applied for a judgeship, he would be rejected not based upon his qualifications, but because he had taken on the difficult case.
Our judicial selection process was deliberately created by the founders of the Alaska Constitution to promote a process for selecting judges that avoids political favoritism by requiring the input of the judicial council and its recommendation process.
Gov. Walker’s conduct here, rejecting the most qualified applicant based upon selected excerpts from a single memorandum she wrote on behalf of an unpopular client, has seriously eroded that process and threatens to affect the quality of our judiciary.
Jeffrey W. Robinson is a lawyer in private practice in Anchorage. He has an active civil litigation, government contracts, trial and criminal defense practice. He is president of AKACDL, and this column is submitted on behalf of the organization.