IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

STATE OF ALASKA,

Plaintiff,

VS.

xxxxxxxxxxxxxxxx,

Defendant.

Case No. 3AN-S97-8370 CR.

MOTION FOR DISCOVERY

VRA CERTIFICATION

I certify that this document and its attachments do not contain (1) the name of a victim of a sexual offense listed in AS 12.61.140 or (2) a residence or business address or telephone number of a victim of or witness to any offense unless it is an address used to identify the place of the crime or it is an address or telephone number in a transcript of a court proceeding and disclosure of the information was ordered by the court.

COMES NOW xxxxxx , through counsel Jim Wendt of the Office of Public Advocacy and Cynthia Strout, and hereby moves this court for an order requiring the State to produce certain documents necessary for the evidentiary hearing scheduled on February 27, 1998, regarding the defense motion to declare AS 47.12.030 unconstitutional. The defense seeks the following discovery:

1. Any and all documents regarding the interpretation and/or application of AS 47.12.030, or its predecessor, AS 47.10.010(e) , whenever prepared, generated by either the state Department of Law, or the state Department of Health and Human Services. This request includes documentation applicable to each judicial district.

2. Documentation of any and all informal agreements, letters inquiries and responses, or any other documentation, for each judicial district, regarding AS 47.12.030, or its predecessor, AS 47. 10.010 (e) .

3. The names and addresses of any person within the Department of Law or the Department of Health and Human Services who makes or has made charging decisions under AS 47.12.030, or its predecessor, AS 47.10.010(e), for each judicial district.

4. The complete files, with names purged, of each and every incident since September 4,, 1994 (the effective date of the statute in question) wherein a minor has been initially charged or whose case was reviewed for charging, for a class A or more serious felony. This request includes documentation applicable to each judicial district.

DATED this 16 day of January, 1998 at Anchorage, Alaska.

James Wendt

Assistant Public Advocate

Cynthia Strout

Attorney

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

STATE OF ALASKA

Plaintiff,

VS.

JONATHAN xxxxxxxxxxx

Case No.3AN-S97-8370 CR.

xxxxxxxxxxxxxxxxxx,

Case No. 3AN-S97-8340 CR.

xxxxxxxxxxxxxxx,

Case No. 3AN-S97-6729 CR.

xxxxxxxxxxxxxxxxxx,

case No. 3 AN-S97-912S CR.

Defendants

RENEWED MOTION FOR STATEWIDE DISCOVERY OF EVIDENCE REGARDING THE

STATE APPLICATION OF A.S. 47.12.030

VRA CERTIFICATION

I certify that this document and its attachments do not contain (1) the name of a victim of a sexual offense listed in AS 12.61.140 or (2) a residence or business address or telephone number of a victim of or witness to any crime unless it is an address used to identify the place of the crime or it is an address or telephone number in a transcript of a court proceeding and disclosure of the information was ordered by the court.

The Superior Court has ordered the defense to produce the evidence in its possession which would satisfy the threshold showing required, under United States v. Armstrong 116 S.Ct 1480 (1996), to force the state to divulge the evidence necessary to prove the defense claim that the state applies the juvenile waiver statute in a disparate fashion. The defense offers the following evidence:

I. REPORT OF THE ALASKA SUPREME COURT ADVISORY COMMITTEE ON FAIRNESS AND ACCESS

A study conducted in 1997 by the Alaska Supreme Court Advisory Committee on Fairness and Access, which reports that, in every category studied, minority youths were over represented. (Complete study attached as Exhibit A) The study found:

A. A disproportionate number of Alaskan Native and African-American youths were referred to DFYS by law enforcement.

B. A disproportionate number of Alaskan Native and African-American youths were asked to be detained, and were detained, in the pre-adjudicatory phase.

C. Minority youths are held in detention for longer periods than non-minority youths.

D. Alaska Natives and African American youths were more likely to receive a petition for adjudication in court than to have the case informally processed.

E. A disproportionate number of African American and Alaskan Native youths are institutionalized.

The study did not include a review of cases involving minors "automatically" waived into the adult system, but it did study the disproportionate rates of incarceration for adult minorities. This portion of the study revealed that Alaska Natives, African Americans and Hispanics make up a significantly higher proportion of the prison population than they do in the general population. The overall rate of incarceration of Native Alaskans is three times higher than for Caucasians. The overall rate of incarceration for African-Americans is five times higher than for Caucasians. The rate for Hispanics may be four times that of Caucasians. The study drew no definitive conclusion about these findings, but stated that "further investigation was warranted."

While these two studies do not specifically address the population group at issue here, there is no reason to believe that these statistic would suddenly be remarkably different for minors subject to the automatic waiver law. In fact, given the harshness of the law, and the profound impact it has upon the particular youth involved, there is reason to believe that the figures would be even more disparate. When a juvenile intake officer is deciding whether to transfer a case into the adult system, with the likelihood of a presumptive sentence in an adult prison, versus the hugely more benevolent treatment of the juvenile system, there is even more motivation for lenient treatment of some youths.

The circumstantial evidence established by these two studies meets the threshold test for requiring the state to release the discovery sought by the defense.

II. THE STATE CONTROLS THE STATISTICS NEEDED BY THE DEFENSE

For the defense to definitively establish that there are minors who are "eligible" for automatic waiver, but who have not been waived, it would be necessary to review cases which remained within the juvenile system. The state is required by statute to maintain documentation regarding these cases. See, A.S. 12.62.120. The defense has sought alternative methods for obtaining this information, but has been unable to do so. The Public Defender has no capacity to maintain the necessary statistics, and is unwilling to divulge confidential juvenile court dispositions. Colloquial evidence gathered by the defense clearly suggests that there is a disparity of treatment of juveniles within the system. (See affidavits of Barbara Brink, Public Defender for the State of Alaska, and of James Wendt, attorney, attached as Exhibits B and C, as well as the documentation attached to the defendant's original motion, reattached here as exhibit D.)

The defense has no other mechanism for obtaining this information.

III. NO BURDEN WOULD BE PLACED UPON THE STATE TO DIVULGE THE NECESSARY STATISTICS.

The state' s only response regarding why it should not be required to divulge the statistics necessary for the defense to proceed with its' claim is the asserted burden this would place upon the state. The state has never offered any affidavit or description of exactly what this burden would be.

The court should view these protestations with suspicion. The state is required by statute to maintain these numbers. Attached as Exhibit F is a report prepared by the state regarding Disproportionate Minority Confinement, which reveals that the state has ready access to the type of documentation the defense needs. From this report it is clear that the state tracks these cases by race in detail. There is no reason to believe that the figures sought by the defense are not readily available from the Department of Health and Human Services.

IV. THE APPLICABLE LAW

The United States Supreme Court has stated that, "the requirements for a selective prosecution claim draw on "ordinary equal protection standards." United States v. Armstrong 116 S.Ct 1480 (1996). The proper analysis is an equal protection analysis. The elements of the equal protection claim made here are:

1. As the statute is applied, it creates two classes of minors--those whose cases are transferred to the adult system, and those whose cases stay in the juvenile system.

2. This classification system is not based upon traditional prosecutorial discretion--that is, it is not based upon the evidence at the time the charging decision is made. Instead, the decision is based upon factors outside the traditional prosecutorial function. These factors include the minor's amenability to treatment.

3. There is no legitimate governmental interest in this disparate treatment, nor is there any rationale basis for this arbitrary exercise of prosecutorial discretion. The discretion which is being exercised is unrelated to the prosecution function and occurs in an arbitrary and standard less fashion.

4. Further, this unequal application of the statute has a racially disparate impact.

The Alaska Constitution offers broader protections under the equal protection clause than does the federal constitution. State v. Erickson, 574 P.2d 1 (Alaska 1978). Under the Alaska constitution, "equal protection requires that those similarly situated be treated equally and that those classifications made by government which call for different treatment of its citizens be reasonable. " Ketchikan Gateway Borough v. Breed 639 P.2d 995, 995-996 (Alaska 1981). Under the Alaska Constitution defense must establish that other minors, similarly situated to him, are treated differently and more favorably, and that this has a racially disparate impact.

The court should consider the harm imposed upon the two parties in determining what threshold level of proof to require of the defense. The harm to the state is the compilation of evidence from statistics they are already required to maintain; the harm to the defense is that the defendants may in fact be the subject of unfair and racially disparate treatment. What is the greater harm?

A prior decision of the Alaska Supreme court strongly suggests that this court should grant the defense request for discovery. In Johnson v. State 607 P.2d 944 (Alaska 1980) a criminal defendant alleged that his sentencing was tainted by racial bias. He relied solely on a then recent study by the Alaska Judicial Council which suggested the possibility of racial disparities in sentencing.

The court found that the defendant had failed to prove that he was the victim of discrimination because the report "'had not been subjected to cross-examination and scrutiny in court." This is exactly what the defense here is trying to do. The defense has offered both statistical and colloquial evidence supporting its claim that a disparity exists in the treatment of juveniles subject to waiver. It seeks further evidence in order to subject them to court analysis. Unlike the situation in Johnson, here the state controls the very documentation the defense needs to fully present its' claim.

Johnson also strongly suggests that this court should not apply an impossibly high burden of proof. The court stated:

We are mindful that the burden of proof cannot be made so stringent that a person attacking a sentence as discriminatory is necessarily doomed to failure. Furthermore, the evidence available to show discrimination will usually be circumstantial. As noted by one court in a sex discrimination case:

(W)e very seldom find a resolution of a board of directors or a faculty committee agreeing to engage in sex discrimination any more than we would expect to find the same in a conspiracy to violate the antitrust laws. Johnson, supra. at 94 7 .

The court also noted that, "to the extent that any racial bias in sentencing can be shown a person establishes a prima facie case of discrimination." Id. at 949.

Thus, the court cannot expect the defense to produce a secret memo that spells out some state plan to discriminate. The circumstantial evidence produced is sufficient to meet the threshold test. The court must remember that the defense is not required to prove its claims at this juncture. The issue is whether the state should be required to release evidence, exclusively within its control, that it already has.

CONCLUSION

For the court to deny the defense request for state wide discovery regarding application of the juvenile waiver law, this court must be prepared to accept the proposition that the state can hide behind clearly unsupported claims of burdensomeness and unnecessary assertions of confidentiality to mask what may in fact be evidence of racial disparity. The very simple question to ask is why is the state so reluctant to release these figures?

Dated at Anchorage, Alaska November 16, 1998.

Cynthia Strout 8206069

Attorney at Law