Wednesday, January 25, 2017

Jan 25 - But… You’re Filing for Appeal, Right?

But… You’re Filing for Appeal, Right?

Clayton Allison was wrongfully convicted on February 13, 2015.  That means that in exactly three weeks, Clayton will have served two full years of a wrongful sentence.  More people than we could possibly count over the last two years, who have learned of our story, have led with the question, “But… you’re filing for appeal, right?”

There is nothing wrong with this question.  In fact, it is completely logical.  This is the only “solution” our system of government affords us in situations like these.  However, that solution falls woefully short of justice; as the wrongfully convicted waste away for years, waiting to prove their trials were a farce with evidence they could have presented immediately.  

Initial Automatic Delays of the Appeals Process

After Clayton’s conviction, he was not allowed to notify the court of his intent to appeal until after his sentencing hearing five months later.  That notice is basically a glorified memo with a bullet list of items you intend to appeal on at that point in time; which only serves to preserve your right to do so.  

Then, in Alaska you are assigned to a set of public defenders who specialize in appeals and are grossly overworked; unless of course you are independently wealthy and can afford private appeal representation.  These professionals handle cases on a first-noticed-first-served basis, the only way they have decided they can make it fair for their clients.  This means that their first order of business in Clayton’s case was to file for an automatic 460+ day extension before being required to file the appeal itself.  The court grants this extension without blinking because they know how desperately backlogged the appeals system is.  You are not even officially assigned to an attorney until closer to the time that your appeal will actually be filed.  In Clayton’s case, an extension was granted until this Friday, January 27, 2017, and his attorney was assigned in the fourth quarter of last year.  

This is what happens when you ARE in the ACTIVE process of appeal in Alaska.  Years and years go by.

Current Status

At this point in time, Clayton has had an opportunity to speak with his attorney on two occasions.  He feels very confident in their knowledge, experience, and strategy.  The attorney feels very positive about the chances of successful appeal due to the severity of issues that presented at trial.  However, this is where the law and justice diverge once again.  

In learning about the appeals process itself, we have learned that the way the courts operate - not necessarily the law itself - hinder the opportunity for true justice to be served simply by the expectations of the players involved.  To put forth your best effort to win an appeal, actually requires you to sacrifice some of your rights.  This is similar to how you must waive your right to a speedy trial immediately if you do not want to go to prison simply because your lawyer doesn’t even know who you are, much less the details of your case.

In the appeals example, it boils down to how much judges want to, or expect to, read.  An appeal is a one-shot process.  You cannot submit appeals over and over on separate subjects, trying to find the right one to convince the court to overturn the conviction.  Everything that you want to preserve your right to appeal on, must be included in the original appeal brief.  If any appeal-worthy subject has not been included, and sufficiently argued, in the original document, it is considered waived indefinitely at all levels - even in moving to higher courts.  Yes, you read that right.  Waived.  Indefinitely.  Permanently.  

Also, an appeal cannot include all subject matter related to the case.  Things like new exculpatory evidence, misbehavior that can be proven through further investigation, and errors discovered after trial, cannot be addressed except through a process called Post-Conviction Relief (PCR).  An appeal can only address issues in the official appeals record from your trial.  

The complete hundreds or thousands of pages of discovery evidence in your case are NOT automatically part of the appeals record.  Instead, the specific document highlighting the problem would have to be formally submitted in trial as an evidence exhibit.  This means that in Clayton’s case, examples of the prosecutors involved lying about case evidence and the contents of police transcripts cannot be included, because the actual physical evidence they were lying about was never logged in the “official record.”  Transcripts especially, are not submitted unless challenged on a specific issue during the process.  Other misconduct or mistakes like these from your trial can only be addressed through the PCR, which normally comes after appeal because it is also a one-shot process.

This is why, during your trial - the literal battle for your life - your will find your attorneys obsessed with “preserving” issues.  They not only have to battle the arguments in front of them.  They have to catch and remember each screw-up, and try to find a way to preserve the fact that it occurred within the official record.  In Clayton’s case, this was even more difficult than it should have been due to interference from Judge Vanessa White.  

White was supposed to be the unbiased guardian of the process, but instead served to block attempts to preserve multiple issues on the record through inappropriate rulings.  For example, disallowing Clayton’s wife from “testifying about the demeanor of the police interrogating her” without allowing her to provide her honest responses on record, outside the presence of the jury, prevents the appeals court from considering the clearly false inferences within the unfair questioning she was being subjected to.  The questioning was implying to jurors that she was being asked questions and had not been providing information, as if she was now fabricating facts, when in fact, she was being tortured by police and they were not accepting any information she attempted to provide.  Judges are not supposed to manipulate the appeals record, but unfortunately have the seemingly unchecked power to do so.  

So, now we know there are numerous issues of misconduct or flat-out provably incorrect facts that simply cannot be considered part of the appeal.  We also know that there are still numerous elements that are appeal eligible within Clayton’s case.  However, the nature of the process means he will not be able to appeal them all.  

An appeal brief is limited by the courts in Alaska to 50 pages.  These pages must contain not only the appeal subjects, but the legal arguments and case law which show them to be valid to overturn the conviction.  It is expected by the professionals in the field that if you have a very good, very solid case for winning an appeal, there will be 3-4 appeal items included.  That’s it!  It was explained to us that in cases which did not have good grounds for appeal, and were essentially grasping at straws, you would see 10+ items listed.  However, this tradition biases the appeals court itself.  

Let’s say you had seven extreme violations of your rights occur in your trial which were all on record and eligible for appeal, and which all were worthy of reversing your conviction.  You would have to waive your right to 3-4 of them to prevent the lawyer from running out of room to argue them sufficiently, and the judges from assuming you don’t have a legal leg to stand on at first glance.  In cases like Clayton’s, where there were many, many violations of his rights and due process, things literally have to be left out and given up if you want to win.    

This is what will be happening in Clayton’s case.  

Due to the seriousness of the issues that have been chosen, the attorney is currently working on cutting back to fit within the page limitation, and still have strong legal argument included for each chosen item.  The brief is due this Friday, January 27th, and will be submitted on time.  However, Clayton will not have the opportunity to read the brief before it is filed.  I wish I could say this is unusual, but it is actually very common at all levels for things to be filed on your legal behalf without ever actually being read by you.  He will receive a copy from the court after it has been filed, and the general contents and intentions of the arguments have been discussed with him.  

What to Expect - 3 Years of More Delays

There are three typical phases to motions and briefs filed within our courts: the initial motion/brief is filed; the opposing party is given an opportunity to file a written response; and then the original author files a response to the oppositions reply.  When asking what to expect in this process, it was explained to Clayton that the State is given an automatic six month extension for filing their response to the brief, and they always use the full amount of time.  (Which of course guarantees that people remain prisoners at least a little longer, even if unjustly put there.)  By our approximation, this means the State’s reply will not be due until around July 27, 2017.  

Then Clayton’s appeals attorney will be given 1-2 weeks to respond to the State’s reply.  Therefore, their reply would be due around mid-August 2017.  

Then the oral argument takes place if requested.  Strangely, in Alaska this process involves the attorneys from both sides providing argument before the panel of three appeals judges WITHOUT the defendant present.  We were informed that Clayton could request to be connected telephonically, but is likely to be denied.  So a bunch of people are standing around in a closed courtroom, arguing about your life and future and you’re not even allowed to be there.  We have no idea when the court would decide to schedule such a closed meeting, but we could guesstimate to September 2017, and likely not be more than a year off.  

The panel of judges do not issue a ruling during this closed session, and oral arguments effectively end the active appeal process.  Then you wait around for the court to issue its decision.  Currently, the Alaska Court of Appeals is taking roughly 2.5 years to issue a ruling after the entire process described above.  Meaning we could be waiting until March 2020 or later to even hear their decision.  

When Clayton was originally convicted, we were told it was taking them as long as 2 years.  Their timeliness seems to be slipping further and further as time progresses.  They’re not taking that time to make their decision.  They’re literally stacking it on top of a pile and waiting to get around to it after they’ve finished the other cases they’re behind on; which have nothing to do with you.  The arguments will not even be fresh in their minds by the time they actually work on your case.  

What a strange perversion of the American Dream.  

What Happens When We Win?

Let’s assume we’ve made it three years down the line, and we win the appeal (again, chances VERY good).  What happens to Clayton?

First, he is not automatically released.  He would revert back to a pre-trial status, even while the district attorney is working to get a new indictment in place.  This means he will be reassigned to the local public defender’s office, and to specific attorneys.  Who you get assigned to largely has to do with whether your original trial lawyers are even still working in that office by then.  The same goes for the District Attorney’s office; so yes, Clayton could theoretically end up battling the same corrupt prosecutors.  

After being assigned representation, he would have to request a new bail hearing.  The family will have to pay whatever new bail the judge assigns (and not get it back, AGAIN), and Clayton will be placed on whatever new pre-trial restrictions they choose - up to the third party requirements he was on for years before.  However, SB 91 made many positive changes to pre-trial in Alaska, and those changes should be implemented statewide by that time.  If unable to make bail, or disallowed from release of custody, Clayton would remain in prison until the new trial takes place.  

Most shocking and disappointing of all, the trial will be reassigned to the original trial judge - Judge White; the same woman who sat by before and allowed blatant misconduct, and manipulated the original appeals record.  We can request that she recuse herself from the case, but she has to agree in order to be removed.  Otherwise, it just becomes an appeal point for the second time around.  

The new trial is not as likely to take the 6+ years it did before, however, that’s not saying much for specifics.  We will essentially be starting over at phase 1.  

In Response

Free Clayton Allison supporters have no intention of sitting by and watching this farce continue without fighting the system in any and every legal way we can find.  We have multiple avenues right now that we are pursuing to demand justice and request investigations of the officials involved.  If you want to learn more about how you can provide assistance to these efforts, please contact  

If we assume the current standard appeals process timeline will be played out to completion, Clayton will have spent 5+ years wrongfully convicted.  Before resuming a brand new trial process, this case will have already consumed 11 of his less than 40 years of life.  This is why wrongful conviction literally destroys lives, even when you win the battle.  It is also why the average exoneree spends 15 or more years wrongfully convicted before finding release.  Please educate everyone you meet about the dangers of the U.S. justice system, and the Clayton Allison case.  

No comments:

Post a Comment