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The Alaska Supreme Court is considering proposed rule changes that would require lawyers in the state to disclose evidence that suggests a person has been wrongly accused or convicted of a crime. 

Alaska state prosecutors and defense lawyers are currently not required to turn over exculpatory evidence – facts that point toward a defendant's innocence.

For the past four years, the Alaska Bar Association has called on the court system to add rules to the Alaska Rules of Professional Conduct, which govern lawyers across the state. The American Bar Association has promoted similar state-level rules around the country.

“This is designed to encourage lawyers to think about the consequences of not doing anything,” said Steve Van Goor, counsel for the Alaska Bar Association. “When you’re in a position to report evidence and don’t, an innocent person sits in prison." 

Van Goor said the primary motivation behind the proposed rule is the prevalence of national cases in which people have been exonerated by new evidence.

The change of policy here is something of a cautionary step, Van Goor said, because it is rare that crucial evidence becomes known after a trial, and there is not a known example of someone in Alaska who was found innocent because of such evidence presented after the trial and appeals process had played out. 

Even with Alaska's track record and a series of safeguards built into state law and court rules, past wrongful convictions give an idea why there is broad support for the expanded protection.

On a night in 1994, police found a woman drunk and in disarray, wandering around a city park in the Southeast community of Petersburg.

She claimed she was raped in the park, and the man she accused was convicted by a jury and sentenced to five years. But the jury was not provided key evidence that contradicted her story, even though the prosecutor knew it existed.

When the Superior Court learned of the previously-unknown facts in 1997, the conviction was overturned, and the state dismissed all charges in 2000.

There are recent examples and in the Lower 48 of prosecutors fighting the release of important evidence that could have swayed a jury.

Former Alaska prosecutor Patrick Gullufsen was suspended in July for withholding evidence in the trial of Jimmy Eacker, who was initially convicted of first degree murder for the brutal killing of a Seward woman. When new evidence was presented in court, showing the DNA of another man was also in the victim's body, Eacker pleaded guilty to the lesser charge of manslaughter and was sentenced to 20 years in prison.

In Austin, Texas, Michael Morton returned home in 1986 to find his wife had been brutally murdered in their bed. He was wrongfully convicted of the crime and served 25 years in prison, in part because a prosecutor fought to prevent the DNA testing that eventually exonerated him of the crime.

The National Registry of Exonerations has identified 1,181 cases nationally that were overturned post-conviction because of new evidence – often DNA, misleading forensic evidence, mistaken witness ID or a combination of those factors.

Mishandled justice, combined with a perceived lack of incentive or risk of consequence for the state to disclose exculpatory evidence in every case, is why advocates like Bill Oberly support the new rule.

“I don’t think anyone in Alaska, or the United States, can deny that wrongful convictions happen,”  said Oberly, executive director of the Alaska Innocence Project. “We have to correct those, or our justice system is a sham.”

The 1994 Petersburg case is one of the best Alaska examples of someone who suffered ill effects from evidence that surfaced post-conviction. But even that case illustrates protections already built into the system, said John Skidmore, director of the criminal division of the Alaska Department of Law, who oversees all of the state’s prosecutors.

Even though human error led to an incorrect result in the initial trial, Skidmore said, because of the work of a defense lawyer the case was properly resolved at the appellate level. 

“Fortunately, we’ve been doing a good job,” he said. “To my knowledge, there’s been no case in which someone was wrongfully convicted beyond the trial court level. The Appellate Court has been an appropriate check.”

The Department of Law supports the proposed rule changes, though if enacted by the Supreme Court, Skidmore said it raises questions of whether the workload of prosecutors will increase.

Still, “it’s another safeguard to make sure innocent people aren’t convicted, and when they are, that it’s corrected,” Skidmore said. “It’s good for everyone.”

At the conclusion of a Thursday work session led by the Alaska Bar Association, the Alaska Supreme Court asked for revisions to the proposals, Van Goor said. The court wants changes regarding notice to defendants under the rule that applies to prosecutors and further analysis of the circumstances when the rule that applies to other lawyers would apply.

When those updates have been made, the court could make a decision at a future administrative conference, which are held each month.