Hard cases make bad laws



Every law student hears this quite early. Our legal structure is a method to resolve disputes. Because this is an imperfect world, we cannot create a perfect legal structure. Instead, we aim to create a structure that gets it right most of the time.

The difficulty is we all know of cases that were resolved ‘unjustly’. This leads to an oxymoron: the more we try to create “just” results in the extreme minority of cases, the more we twist results in the large majority of cases.

Take contractual interpretation, that is, how we define the meaning of a contract. To non-lawyers, this is quite boring. It is never the focus of TV lawyering shows. But our modern economy could not focus without the legal canon we have developed to interpret contracts. That canon, though, is admittedly imperfect. We fully recognize that Al and Bob can agree to something and put it in a written contract but if the contract does not accurately represent the agreement, the court is far more likely to enforce the contract as written.

There are exceptions, but that does not really help the party who suffers because of poor contract drafting.

Contracts, though, rarely inflame passions. They certainly do not inflame passions like crime inflames passions. So before discussing crime, I would point out Aristotle’s definition of law: law is reason without passion.

Understand that whatever you may think of crime, our criminal justice system treats criminal cases like other disputes: there are differing parties disputing over facts with one party (the government) seeking a particular remedy. Rules of evidence and procedure apply just like any other case. Because the remedies involve our most basic rights (life, liberty and the pursuit of happiness), there are limitations in criminal law that do not apply in other disputes: only a government agency can bring a case, the constitution places limits on the way evidence is gathered, etc. But at its heart, a criminal case is a legal dispute between parties.

Given that, it should be no surprise that there are times when cases result in an outcome that we do not like. Before responding emotionally, though, we should stop and look at what happened in that case and see if it justifies outrage.

The case du jour involves a woman who was picked up at a gas station, taken some place and choked until she passed out. While she was unconscious, the perpetrator masturbated over her and let her go.

He pled, so we will assume those facts are true. He might have contested some of those facts and maybe he had a good reason to contest some of those facts but that is not clear from press accounts so we will proceed as if all of that is true.

He was released on electronic monitoring and ultimately reached a plea agreement with the state whereby he would plead to assault in the second degree, undergo sex offender evaluation and treatment and serve one year in custody with credit for what he had served on electronic monitoring. Charges of kidnapping were dismissed. Various members of the public do not understand why any rational person would agree to this and want the judge removed.

To begin, it may be hard to realize, but that behavior is not kidnapping. Any crime in this country has to be defined by a statute. Put another way, if conduct does not fit a statute, it is not a crime. And if conduct is covered by a criminal statute, it is criminal even if it is not what one would expect. For example, in Alaska, burglary is entering or remaining in a property with the intent to commit a crime.

Let’s take a case I handled years ago: At a house party, one person drinks too much and becomes aggressive. The host demands that person leave. The disorderly person refuses to leave and instead says he is going to beat the host. That person committed a burglary even though most people think of burglars as wearing masks and breaking into a house to steal stuff. He committed a burglary because he refused to leave a house and he intended to assault the host.

I use this example to demonstrate that statutes, not common understanding, govern the definitions of crime. With that in mind, what is kidnapping in Alaska? AS 11.41.300 requires “restraint” as part of kidnapping. If you restrain another intending to use them for ransom, use them as a shield, inflict physical injury, interfere with government or political function, help commit a felony or commit a sex offense, you have “kidnapped that person.” You can also kidnap a person by “secreting and holding the restrained person in a place where the restraining person is not likely to be found.”

Under that definition, the victim in the August 2017 was not kidnapped. She agreed to get into the car. He told her he was going to a place other than where she had wanted to go. She agreed. What he did was despicable but it was not kidnapping because he did not at any time restrain her.

The man choked the woman until she passed out and when she came to, she was covered in semen. As gross and despicable as this is, it is not a sex crime. It is Harassment in the first degree: subjecting another person to an offensive touching involving blood, mucus, saliva, semen, urine, vomitus, or feces. It is a class A misdemeanor that does not require registering as a sex offender. AS 11.61.118(a)(1).

He did choke her, which is assault in the second degree, and he pled to that. But many people think he should have gotten more prison time. Maybe, but that is hard to say. One complicating factor is that the victim was not available. The State had not been able to get her involved and the prosecutor said he would have needed detectives to find her for trial. This is a huge factor. If the State cannot find her, the state cannot prove its case.

How would you respond if he said, “Fine, I’ll go to trial” and the accuser did not testify. In every case an accused is entitled to face his accuser and police cannot introduce her statements. She has to come in and testify. Without her evidence, he would be entitled to an acquittal. Then the headlines read “Pervert who masturbated over kidnapped, unconscious woman acquitted.”

So the reaction from some is that the Judge is at fault, that the Judge should not have accepted this plea agreement. There are several problems with that. In our legal system, the judge is a referee, not a participant. The judge does not get discovery, such as police reports, witness interviews or laboratory analysis. That is exchanged between the parties. The judge just sees two parties with a dispute who have agreed to settle their dispute. The judge does not know all of the facts or the issues between the parties. Knowing Judge Corey, I have little doubt he inquired why he should have accepted this agreement. And the prosecutor likely said something along the lines of “This is apparently lenient but we cannot find our accuser. If we cannot find her, we will not get a conviction. Given how the defendant has performed on EM, his job history, and his family contacts, we believe he is more likely than others to be rehabilitated. Given that we cannot force him to sex offender treatment without any sort of conviction, and given that if we proceed without an accuser we will not get a conviction, we are willing to accept a lesser prison sentence in order to ensure that he undergoes sex offender treatment and bears the stigma and consequences of a felony.”

And the judge would say, “Since the parties know more about this case than I do, and since the State would likely not get a conviction without an accuser, I am willing to accept this plea agreement in this case under these circumstances.”

Based on almost 25 years practicing law, I would bet my house that if the accuser had been heavily involved, appearing at every hearing and in constant contact with the State, this agreement would have been far different. Some may say this is victim blaming but it is just the reality of the situation. Go to Judge Corey’s docket on Wednesday afternoon. See the 90+ cases that are before him every week. That will put this case in perspective and give additional reasons why this case was resolved the way that it was.

Our justice system is not perfect. It produces results that we do not always like. Sometimes we have to say that is what happens when imperfect people do their best. We see cases on this side of the spectrum and we see the Fairbanks Four. Modifying the kidnapping statute will not make life better or citizens safer. There is no epidemic of people masturbating over unconscious women so there is no reason to believe that making a new crime or modifying the harassment statute will make our citizens safer.

Removing Judge Corey will not change the fact that the accuser was not available in this case, which would have made a conviction on any charge extremely difficult. This is a case in which any proposed “remedy” is worse than the disease.

Steve Wells has practiced criminal defense for 25 years, almost 20 of those in Alaska. He has represented clients in every Superior Court in Alaska except Utquiagvik. His practice generally consists of representing clients investigated for or charged with complex, white-collar or federal charges.


    • It pains me to agree with a defense attorney, Jack, but I don’t know how you would get a conviction without the testimony of the only witness. I think the prosecutor did a good job getting as much as he did. Perhaps the perp had some consciousness of guilt that caused him to accept the plea because the odds are that if this had gone to a jury, in fact I don’t know how you’d get it to the jury, without the only witness, he’d have walked on every charge, no matter the charge.

      I know in my time in labor relations I walked away from or took what settlement I could get in a lot of discipline and dismissal cases because of the unreliability or unavailability of witnesses. And I wish I’d walked away from some other in which witnesses were rock solid in prep and then either got on the stand and couldn’t remember their name or got taken apart on cross. There were a couple of State departments that if you had a case involving them, you knew that management knew something and wasn’t telling you, and you just sat their waiting for the union to reach under the table and grab the stinking corpse and throw it on the table in front of the arbitrator.

  1. Good argument for jury nullification, which might have to be the “reality of the situation” until the problems of bad laws and bad people are fixed and controlled respectively…

  2. I’m not a lawyer but I understand the English language.

    “If you restrain another intending to…inflict physical injury…or commit a sex offense”

    “because he did not at any time restrain her.”

    “The man choked the woman until she passed out”

    I guess I think that telling somebody that you plan on killing them and then physically grabbing them around the neck and throat and squeezing until that person becomes unconscious meets the definition that says to inflict physical injury. You know because killing a person by squeezing the life out of them is kind of a form of physical injury, and squeezing a person around the throat until they become unconscious is also a form of physical injury. He also restrained her, see the physically grabbing around the neck and throat and squeezing until that person became unconscious. It is impossible to choke somebody to the point of becoming unconscious without restraining them.

    The prosecutor is more to blame than the judge for this ruling, but we the people bear as much responsibility.

    If the victim and only witness to the crime has disappeared and is nowhere to be found and the pervert would be allowed to walk free then we should hope that he has learned his lesson, and not learned how to get away with this kind of thing.

    The public needs to keep an eye on this pervert wherever he goes.

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