Judge calls state to task

A U.S. District Court judge Friday chastised a deputy attorney general and her boss for prosecuting a sex offender registry case currently under U.S. Supreme Court review, but did not issue a contempt of court ruling.

At a hearing Monday, March 11, U.S. District Judge H. Russel Holland heard arguments about why Deputy Attorney General Cynthia Cooper was pursuing a case against Doe III, one of the plaintiffs in the U.S. Supreme Court case now known as Doe v. Godfrey.

The state was ordered to halt all prosecution on sex offenders whose offenses predated the 1994 Alaska Sex Offender Registry Act (ASORA). Holland issued a preliminary injunction Jan. 28 that stays the cases until after the higher court issues its decision.

After oral arguments at the March 11 hearing, Judge Holland took the issue under advisement to determine whether the state violated the preliminary injunction and should be issued a contempt order. On Friday, he issued his decision as a 19-page document that took Cooper to task for making "untrue statements," and misconstruing his federal court ruling.

Doe III was arrested last August in Anchorage for failure to register as a sex offender. His attorneys, Darryl Thompson of Anchorage and Verne Rupright of Wasilla, won their request in the Ninth Circuit Court of Appeals asking that Doe III and the other plaintiffs no longer be required to register. The order also granted Doe III continued anonymity.

"When they went to arrest him, he told the police that this was illegal because the Ninth Circuit already ruled on the matter. They laughed and arrested him," Thompson said. "They wouldn't let him out of jail until he registered and told him he had to go to the trooper station in person, even though they had already registered him in jail."

Thompson asked the state to dismiss the August case against Doe III. On Feb. 28, he was notified that the Anchorage District Attorney's office refused to dismiss it and a trial date was set for March 4.

The matter of refusing to dismiss charges against Doe III was brought to Holland's attention earlier this month in a motion filed by Thompson.

In response to that, Holland issued an "order to show cause" for why Cynthia Cooper and/or Alaska Attorney General Bruce Botelho were violating his court order. Cooper oversees all district attorney agencies in the state.

In the order, Holland said he wanted it explained to him how the deputy attorney general "rationalizes ceasing all enforcement of ASORA as to the persons whose offenses were committed prior to Aug. 10, 1994, with the exception of Doe III who sought and obtained the preliminary injunction."

He wrote: "This court is deeply troubled that the attorney general and or his representatives continue to take the position that Doe v. Otte is wrong and therefore the attorney general has no obligation to abide by it. The court is shocked that attorneys of the State of Alaska believe they can seize upon so flimsy a pretext for prosecuting Doe III."

Calls to Cooper were not returned, but according to court records, Cooper told Judge Holland that the state had made a good faith interpretation that allowed them to continue to prosecute in the case against Doe III. She did not mention specifics about his offense, or him in general.

She argued the state is in "good faith compliance" because Holland's ruling allowed for "prospective enforcement."

Thompson argued that the state was not in compliance with Holland's ruling. He told Holland that Cooper had sent a memo Feb. 7 contending they could continue enforcement on open cases because the U.S. Supreme Court granted certiorari, meaning it agreed to review the case.

Cooper told Holland that she did not instruct continued enforcement, but rather had ordered prosecutors to request stays and Rule 45 waivers in all cases, pending the U.S. Supreme Court's decision.

In his response, Judge Holland said: "That is an untrue statement based on the record here and what happened to Doe III."

Holland's response to Cooper, in the 19-page ruling, said, "the opposition of the state's attorney does not justify her Feb. 7, 2002 advice to prosecutors … The memorandum does not tell prosecutors to seek waivers of speedy trials and stays of proceedings. It tells prosecutors to continue with existing prosecutions as was attempted with Doe III."

Cooper's position was in fact inconsistent, Holland said, and she did not tell prosecutors what she now says was her view of the preliminary injunction.

Throughout the ruling Holland takes Cooper to task primarily for this dishonesty and for seizing upon the words "prospective enforcement."

The situation does not rise to the level of contempt of court, however, since prosecution of Doe III was cut short by attorney Darryl Thompson's "timely filing."

"No significant prosecutorial action took place," Holland concluded.