Out of control?

An overloaded justice system may mean easy out for criminals

By STEVE KADEL-Frontiersman reporter

In November 2002, someone broke into Lawrence Windham's home in Big Lake and stole five rifles, two shotguns and two pistols worth about $6,000. Windham contacted Alaska State Troopers, who investigated the case for months without an arrest.

Then, in late March, a man and woman showed up at the Big Lake trooper office with the serial numbers of nine weapons. They wanted to know if they were stolen, and it was determined that all had been taken from Windham.

The pair said they were given the guns three days earlier by a motorist whom they stopped to help. She had a flat tire but not a spare, they said, so they gave their spare to the woman. In return, she gave them the guns.

Troopers continued to investigate and eventually arrested the man, referring a theft by receiving charge to the Palmer district attorney's office. The defendant, who had previous convictions in Palmer court for second-degree arson and second-degree burglary, was arraigned in July on a charge of misconduct involving weapons in the third degree.

Windham followed the case, attending the arraignment and a pre-indictment hearing. He relished seeing justice done at last.

"He was cocky in court," Windham said of the defendant.

The victim's satisfaction was short-lived, though. The district attorney's office dismissed the charge on Aug. 21 without an explanation to Windham.

District Attorney Roman Kalytiak says the case is an example of how the clogged schedule at Palmer courthouse affects prosecutions. So many arrests are being made that the DA's office must prioritize which cases it can pursue. For example, attorneys have ignored any cases less serious than class A misdemeanors for several months.

"It's no secret we're pretty swamped," Kalytiak said.

He said the case involving Windham's guns might have been prosecuted if the DA's office had lots more attorneys. But given the staffing level, and the peculiar aspects of the case, Kalytiak said it was best to pull back.

"I get feedback from juries," he said. "When they take time off from their lives they expect to sit on a serious case. So here's a situation where if I brought a jury in and told them I'm charging some people for bringing guns in to the troopers, I think I'd get some funny looks from the jury."

Part of the increased caseload in Kalytiak's office stems from lack of money to replace staff attorney Jack Smith, who resigned early this year to accept a judgeship in Anchorage. Smith primarily prosecuted drug cases through a federally funded position, and those assignments are now shared by Kalytiak and five assistant district attorneys.

The Department of Law divvies up state revenue from the Legislature to all the district attorney's offices in Alaska. Kalytiak said the department's position has been that it's more important to fund regular positions that have become vacant than it is to replicate Smith's specialty position in Palmer.

Another factor is that an additional district judgeship was added at Palmer this year. Bill Estelle was named district court judge, and Ethan Windahl has been presiding over a second district court on a temporary basis. A permanent judge will be named within two weeks by Gov. Frank Murkowski.

"We've seen an increase in judicial officers and that, in turn, has increased our numbers," Kalytiak said.

The Palmer courthouse handles more total cases for its size than any courthouse in Alaska. Kalytiak says criminal cases are increasing each year, too, with a particularly big jump from 2001 when 3,329 files were opened to 2002 when 3,576 new files were created. A total of 3,300 files have been opened this year, keeping the Palmer DA's office even with last-year's record pace.

Statistics from state court administration research analyst Leanne Flickinger show how Palmer's court docket exceeds those of other courts in the state. Palmer processed 2,607 criminal cases during the fiscal year that ended June 30. That compares with 2,497 in Kenai and 1,868 in Juneau.

However, Flickinger's figures don't include cases from Valdez, Glennallen and Cordova that are tried at Palmer courthouse. Kalytiak says those jurisdictions add significantly to the workload.

"We've had some statutory changes," he added. "Almost every year it seems like there are new criminal laws that we have to enforce. And it's no secret the Valley is growing in population. Unfortunately we're going to see more criminal cases because of growth."

Court clerks are feeling the pinch as well. A clerk said last week that already as many total cases have been filed in Palmer as were filed by late December a year ago. Palmer processed 697 general civil cases and 967 domestic relations cases during the last fiscal year, while Juneau courts processed 537 general civil and 476 domestic relations cases. Despite the disparity of cases, Palmer did its work with 25 non-judicial employees while Juneau had 29.

Already, the stress on the DA's office has caused ripples of discontent among law enforcement officials. Capt. Dennis Casanovas, head of the troopers' Palmer office, and Wasilla Police Chief Don Savage both say instances such as the Windham case have hurt morale among officers.

"Absolutely," said Savage, adding that officers feel there sometimes are "unreasonably high standards" for prosecution.

At the same time, he said, Wasilla police want to maintain the city's quality of life and that means responding to incidents that concern citizens.

"We can't just say, 'Sorry, we're not coming to your B misdemeanor,'" he said. "If you don't address it early it becomes a big problem later on."

Another problem with prioritizing cases is that citizens quickly learn they must overstate a situation when calling police to get a response, Savage said. That means an officer may investigate, only to find out the incident was relatively minor.

Savage and Casanovas acknowledge the pressure the DA's office is under. Still, they say it's hard to contact the attorneys during the week for needed discussions about cases.

"The office is fairly quick to render guidance to the state troopers when we call them on weekends, holidays and after hours," Casanovas said. "But we notice their staffing shortages during normal business hours when we want to meet with the DA or his assistant DAs and discuss the progress of a case, or help refine direction that a case ought to take.

"These sort of meetings are difficult to set up because of the attorneys having to be in court. With a court system as busy as Palmer, it makes their time a premium. We take a number just like other law enforcement agencies in the region."

Kalytiak realizes that's a problem, saying that office time to prepare cases or meet with police is almost a luxury these days. His attorneys' first duty is to make court appearances.

Casanovas also says troopers don't have a clear-cut idea which cases are likely to be prosecuted and which aren't.

"I am encouraging our folks to refer these cases to the district attorney," he said. "Having an objective pair of eyes on our police report is important. As soon as Roman makes his screening thresholds known, I would want him to share those with us. He needs to step up and decide what those are. There are questions among law enforcement officers.

"It is fair to say that the majority of the screening dispositions that we get back are either not accepted for prosecution or have been reduced to a lesser charge."

Kalytiak, who has been a prosecutor for 16 years and a member of the Palmer office since 1997, admits he's never going to make everyone happy. He says a district attorney needs thick skin.

"I look at 90 percent of our felony cases that come through the door," he said. "I have to control what's prosecuted and what's not prosecuted. The kind of things I'm looking at nowadays are, does the victim have clean hands? Was the victim part of a mutual combat situation? Was the victim drunk? Was the victim committing a crime?"

He also considers whether the case involves something that might be settled in civil court, where a person can sue to get money back. Also, Kalytiak said he considers whether a case can be proven beyond a reasonable doubt in court.

"If not, chances are I'm not going to accept it," he said.

Trooper investigator Leonard Wallner explained the effects of high caseloads by saying, "We've got some good cases but they end up languishing because we get better cases."

It's a sign that everyone is plagued by the same problem. And things will become even more hectic at Palmer courthouse because of a new trooper program that begins today.

"We're going to go operational with our DUI team," Casanovas said. "It will probably increase the number of DUI arrests because we're going to have four dedicated people looking for those."

The DUI team will operate from the Palmer trooper office but will be able to travel to other parts of the state, especially to cover big events. It's funded almost totally by federal money.

The upside is that roads will be safer with fewer drinking drivers. The downside is that courts will become even more crowded, and decisions about prosecution priorities will be even more difficult to make.

Kalytiak is confident things will work out.

"I've got a pretty good handle on what type of cases should be handled and what type shouldn't be," he said. "Yes, we do some plea bargaining where we dismiss a charge if they plead to other charges. But the bottom line is that in a very large percentage of these cases the people ultimately take responsibility for their conduct."