State v. Murtagh

CourtSupreme Court of Alaska (US)
Citation169 P.3d 602
Docket NumberNo. S-12007.,No. S-11988.,S-11988.,S-12007.
PartiesSTATE of Alaska and Alaska Office of Victims' Rights, Appellants/Cross-Appellees, v. John M. MURTAGH, James H. McComas, Cynthia Strout, Sidney K. Billingslea, and Harry Dee Taylor, Appellees/Cross-Appellants.
Decision Date26 October 2007

Robert P. Blasco, Robertson, Monagle & Eastaugh, Juneau, for Appellants/Cross-Appellees.

Susan Orlansky, Feldman Orlansky & Sanders, Anchorage, for Appellees/Cross-Appellants.

Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and BRYNER, Justices.


MATTHEWS, Justice.

The question in this case is whether certain provisions of the Alaska Victims' Rights Act are unconstitutional. We conclude that they are because they interfere with criminal defense investigations without adequate justification.


This case was initiated by criminal defense attorneys John Murtagh, James McComas, Cynthia Strout, and Sidney Billingslea and defense investigator Harry Taylor (collectively referred to in this opinion as Murtagh), on behalf of themselves and their present and future clients. They challenged certain provisions of the Victims' Rights Act of 1991.1

In general, the provisions of the act under review regulate criminal defense representatives' conduct with respect to pretrial interviews of victims and witnesses. The act subjects interviews in cases in which the accusation is a sexual offense to constraints that are more strict than those applicable to other offenses. In all cases, before defense representatives may interview a victim, they must state their identity and their association with the defendant,2 tell the victim that the victim need not talk with the representative,3 and tell the victim that the victim may have a prosecuting attorney present during the interview.4 Before a defense representative may electronically record an interview with a victim or witness, the representative must make the statements described above and also state that the interview will be electronically recorded.5 Murtagh challenged these requirements except the requirement that representatives reveal their identity and association with the defendant.

With respect to interviews in cases involving sexual offenses, Murtagh challenged the additional constraints imposed by the act. The relevant portions of the challenged provisions:

• Bar defense representatives from contacting a victim or a witness who has informed the defendant or defendant's counsel in writing that the victim or witness does not wish to be contacted by defense representatives.6

• Require defense representatives to obtain written authorization from a victim or witness before an interview may be recorded. The authorization must state that the victim or witness is aware that there is no legal requirement that he or she talk to the defense representative and that he or she may have a prosecution representative present during the interview.7

• Require defense representatives to obtain written authorization from a victim or witness before "obtain[ing] a statement ... not taken as a recording." The authorization must state that the victim or witness is aware that there is no legal requirement that the victim or witness talk to the defense representative.8

If an attorney or a person subject to an attorney's control violates the statutory constraints relating to interviews of victims and witnesses in sexual offense cases, a court upon learning of the violation must refer the incident to the Disciplinary Board of the Alaska Bar Association as a grievance.9 Statements taken in violation of the statute are presumed inadmissible.10 The presumption may be overcome if the defendant proves by clear and convincing evidence that (1) the statement is reliable; (2) similar evidence is unavailable from other sources; and (3) failure to admit the statement "would substantially undermine the reliability of the fact-finding process and result in manifest injustice."11

After motion practice and discovery a trial was held before Superior Court Judge Sen K. Tan. At the conclusion of the trial, the court entered extensive findings of fact and conclusions of law. Briefly, the court

• Upheld the requirement that defense representatives must tell victims in all cases that they need not talk with the defense representative and may choose to have a prosecuting attorney or other person present during an interview. AS 12.61.120(c)(2) and (3).

• Upheld the bar on defense representatives contacting either victims or witnesses in sexual offense cases where the victims or witnesses have stated in writing that they do not wish to speak with defense representatives. AS 12.61.125(a)(1).

• Struck down the requirement pertaining to sexual offense charges that all victims and witnesses must consent in writing before being interviewed. AS 12.61.125(a)(2)(B).

• Struck down the requirement that a defense representative must obtain the consent of a victim or witness prior to recording an interview. AS 12.61.120(d) and AS 12.61.125(a)(2)(A).

As to those provisions that the superior court found unconstitutional the court's rationale was, in each case, that the provision violated the equal protection and due process clauses of the Alaska Constitution. The court found that neither party was the prevailing party for purposes of an award of attorney's fees and determined that no award of attorney's fees was appropriate. A final judgment was entered in accordance with these conclusions.

The State has appealed from those portions of the judgment that struck down the consent in writing requirements of AS 12.61.125(a)(2)(B) and the bar on undisclosed electronic recording contained in AS 12.61.120(d) and AS 12.61.125(a)(2)(A). Murtagh has taken a cross-appeal from most, but not all, of the portions of the judgment that rejected his contentions. He argues that the advice requirements contained in AS 12.61.120(c)(2) and (3) are unconstitutional except as applied to victims of sexual offenses and domestic violence. He also argues that the no-contact provisions contained in AS 12.61.125(a)(1) should be struck down with respect to witnesses but not victims. In addition, Murtagh argues that the court erred in declining to hold that he was the prevailing party in the litigation.


We review the constitutionality of a statute, like all legal questions, de novo, and will "adopt the rule of law which is most persuasive in light of precedent, reason, and policy."12 We apply the clearly erroneous standard of review to a trial court's findings of fact.13 A finding of fact is clearly erroneous and will be reversed only if review of the entire record leaves us with a definite and firm conviction that a mistake has been made.14

A. Equal Protection

One of the State's primary contentions is that the equal protection clause of the Alaska Constitution does not apply to this case.15 The State argues that the State itself is not a "person" within the meaning of this clause. A statute that denies "persons" rights available to the State may therefore not be invalidated on equal protection grounds.

This argument is supported by our case law. We stated in Weidner v. State, Department of Transportation & Public Facilities: "Equal protection ensures that the State will not treat an individual or group of individuals differently from all other individuals. Equal protection does not, however, require the State to treat all individuals the same as it treats itself."16 Given Weidner and the absence of any persuasive contrary authority from other jurisdictions, we agree that the Victims' Rights Act is not vulnerable to a constitutional attack under the equal protection clause.

B. Due Process

The superior court relied alternatively on the due process clause of the Alaska Constitution.17 The court concluded that "[t]he guarantee of due process protects a criminal defendant's right to prepare and present a defense," and observed that "[h]aving reasonable access to witnesses is an essential part" of this right. The superior court pointed out that opinions of this court and the Alaska Court of Appeals have condemned on due process grounds actions by the state that interfere with the right to present witnesses to support a defense.12

12. See Brandon v. Dep't of Corrections, 865 P.2d 87, 90 (Alaska 1993) (holding that, because "[t]he right to call witnesses and present evidence is fundamental to a fair hearing and due process," even in prison disciplinary hearings the state may not deny an inmate the opportunity to present a witness except for compelling reasons); Boggess v. State, 783 P.2d 1173, 1179 (Alaska App.1989) ("A defendant's right to offer the testimony of witnesses is protected by the due process clause of the fourteenth amendment. . . . The prosecution violates this important right when it engages in conduct or makes comments aimed at discouraging defense witnesses from testifying freely.").

The court also stated:

A person charged with a crime has a right to investigate the charges against him or her. This right is protected by the rights to compulsory process, due process, and effective assistance of counsel. Alaska Const. art. I, § 11 and art. I, § 7.

In Alaska, the right to compulsory process includes the right to obtain witnesses and documentary evidence in the defendant's favor. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910[, 98 S.Ct. 2246, 56 L.Ed.2d 410] (1978). This includes the right to call witnesses at trial and to have the prosecution disclose evidence in its possession to the defendant. The right to compulsory process includes the right to investigate witnesses who are necessary to the defense before trial. However, the right to interview a witness does not mean there is the right to a successful interview. Rather, the right involves the unfettered opportunity to interview witnesses.

Similarly, the right to due process in a...

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    ...had had a prior opportunity for cross-examination"). 5. Raphael v. State, 994 P.2d 1004, 1012 (Alaska 2000). 6. Cf. State v. Murtagh, 169 P.3d 602, 608, 610 (Alaska 2007) (explaining that "[s]tate practices, including statutes, that interfere with fair trial rights do not pass constitutiona......
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    ...impositions of sentences were entered under provisions that require substantial showing of rehabilitation). 26. State v. Murtagh, 169 P.3d 602, 606 (Alaska 2007) (holding certain provisions of Alaska Victims Rights' Act unconstitutional because they interfered with criminal defense investig......
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