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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CYNTHIA COOPER, | ) |
| ) Court of Appeals No. A-8835 | |
| Petitioner, | ) Trial Court No. 3AN-03-10934 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| DISTRICT COURT and | ) |
| DANIEL R. COOPER JR., | ) |
| ) | |
| Respondents. | ) No. 2043 April 14, 2006 |
| ) | |
Original Application for Relief from the
District Court, Third Judicial District,
Anchorage, Gregory J. Motyka, Judge.
Appearances for the Parties: Katherine J.
Hansen, Alaska Office of Victims Rights,
Anchorage, for the Petitioner. Allison E.
Mendel, Anchorage, for Respondent Daniel R.
Cooper. No appearance for Respondent
District Court.
Appearances for the Amici Curiae aligned with
the Petitioner: Allen M. Bailey, Anchorage,
for (1) the National Crime Victim Law
Institute and (2) the Victim Advocacy and
Research Group; Christine McLeod Pate, Sitka,
for the Alaska Network on Domestic Violence
and Sexual Assault.
Appearances for the Amici Curiae aligned with
the Respondent: John E. McConnaughy III,
Deputy Municipal Attorney, and Frederick H.
Boness, Municipal Attorney, Anchorage, for
the Municipality of Anchorage; Margi A. Mock,
Assistant Public Defender, and Barbara K.
Brink, Public Defender, Anchorage, for the
Alaska Public Defender Agency; Daniel S.
Bair, Assistant Public Advocate, and Joshua
P. Fink, Public Advocate, Anchorage, for the
Alaska Office of Public Advocacy; Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and David W. M rquez, Attorney General,
Juneau, for the State of Alaska.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Andrews, Senior Superior Court
Judge.*
[Stewart, Judge, not participating.]
MANNHEIMER, Judge.
This is an original application for relief brought by
the victim of a crime. The application has two distinct parts.
The first part of this original application presents
the question of whether a crime victim or, alternatively, the
Alaska Office of Victims Rights acting on behalf of a crime
victim, has an independent right to seek appellate review of an
alleged error in the sentence imposed on the perpetrator of the
crime. The second part of this original application presents a
more case-specific question: whether Cynthia Cooper is entitled
to have a portion of the sentencing hearing sealed from public
access.
The Municipality of Anchorage prosecuted Daniel R.
Cooper Jr. for assaulting his wife, Cynthia Cooper. Daniel
Cooper ultimately pleaded no contest to misdemeanor assault, and
he received a suspended imposition of sentence conditioned on his
satisfactory completion of 1 years probation. One of Daniels
conditions of probation required him to attend a counseling
program, but the program Daniel was ordered to attend is not one
of the batterers intervention treatment programs approved by the
Alaska Department of Corrections. Cynthia Cooper (who is
represented by the Office of Victims Rights) takes the position
that, under Alaska law (specifically, under AS 12.55.101(a)(1)),
if a defendant convicted of a crime of domestic violence is
ordered to participate in rehabilitative counseling or treatment
as a condition of probation, this counseling or treatment must be
a batterers intervention treatment program approved by the
Department of Corrections. Cynthia therefore contends that
Daniels sentence is illegal.
The Municipality disagrees with Cynthias interpretation
of this statute. The Municipality believes that Daniels sentence
is legal, and the Municipality has therefore declined to appeal
the sentence.
After it became clear that the Municipality did not
intend to challenge Daniels sentence, Cynthia filed the present
original application for relief. Cynthia contends that, because
she is the victim of the crime, she has standing to challenge the
district courts sentencing decision. That is, Cynthia asserts
that, regardless of the Municipalitys position on this matter,
she has an independent right to seek appellate review of the
sentence (either the right to appeal the sentence or, at least,
the right to seek discretionary review of the sentence by filing
an original application for relief).
The Office of Victims Rights is representing Cynthia in
this litigation. However, the Office of Victims Rights argues
that they are not merely Cynthias attorney. Rather, the Office
of Victims Rights contends that, regardless of Cynthias personal
standing to pursue this litigation, the Office of Victims Rights
is independently authorized to pursue an appeal in any criminal
case where the Office has appeared on behalf of the victim.
As explained above, the second part of this original
application for relief presents the question of whether Cynthia
is entitled to have a portion of the sentencing hearing sealed
from public access.
The sentencing hearing in this case was open to the
public when it was held; in fact, the hearing was attended by
representatives of the media. During her sentencing argument,
Daniels defense attorney referred to the fact that Cynthias son
(who lived with the couple) was suffering from mental health and
behavioral problems. The defense attorney argued that the boys
problems were a major source of stress in Cynthias and Daniels
relationship, and that this stress was the primary contributing
factor in Daniels assaultive conduct.
On the Monday following the sentencing hearing, Cynthia
or, more precisely, the Office of Victims Rights on Cynthias
behalf filed a motion asking the district court to seal many of
the defense attorneys statements on this subject. Cynthia
contended that the defense attorneys statements contained
information that was protected by the psychotherapist-patient
privilege.
The district court declined to seal the defense
attorneys statements prompting Cynthia to supplement her
original application for relief with a challenge to the district
courts ruling.
For the reasons explained here, we conclude that
Cynthia has no standing to challenge the sentence imposed by the
district court, and that the Office of Victims Rights has no
independent standing to challenge the sentence either.
We further conclude, for two separate reasons, that the
district court correctly declined to seal the defense attorneys
statements at the sentencing hearing. First, with one possible
exception, none of the challenged statements contained
information protected by the psychotherapist-patient privilege.
Second, neither Cynthia nor her attorney from the Office of
Victims Rights voiced a contemporaneous objection to these
statements.
Part I
Does a crime victim or, alternatively, the Office of
Victims Rights, have standing to challenge the sentence
imposed on the perpetrator of a crime?
As explained above, both Cynthia Cooper and
her attorney, the Office of Victims Rights, wish to
challenge the sentence imposed on Daniel Cooper because
the district court failed to require Daniel to attend a
Department of Corrections-approved batterers
intervention program.
Daniel takes the position that neither
Cynthia nor the Office of Victims Rights has standing
to pursue an appeal or a petition challenging his
sentence.
We solicited amicus curiae briefs from the
Municipality of Anchorage, the Alaska Department of
Laws Office of Special Prosecutions and Appeals, the
Alaska Public Defender Agency, and the Alaska Office of
Public Advocacy. All of these agencies take the
position that neither a crime victim nor the Office of
Victims Rights has standing to bring an appeal or a
petition challenging the judgement entered against the
defendant in a criminal case.
We also granted amicus curiae status to the
National Crime Victim Law Institute, the Victim
Advocacy and Research Group (a lawyers organization
that provides pro bono legal services to victims of
violence and their care-givers), and the Alaska Network
on Domestic Violence and Sexual Assault. These
organizations support Cynthias position that a crime
victim has standing to pursue an appeal in a criminal
case.
As we explain in more detail later in this
opinion, courts from other states are unanimous in
holding that a crime victim does not have the right to
participate as an independent party in a criminal case.
Many of these courts acknowledge that a crime victim
does have standing to seek appellate relief if the
trial court or an executive branch agency violates one
or more of the procedural rights given to victims in a
victims rights act generally, the right to advance
notice of court proceedings, the right to be present
during court proceedings, and the right to be heard
before the court makes certain types of decisions. But
these same courts agree that a crime victim is not an
independent litigant in a criminal case, and that a
crime victim does not have the right to challenge the
propriety or legality of the substantive decisions made
by the trial court decisions such as what sentence
should be imposed on the perpetrator of the crime.
For the reasons explained here, we agree with
these courts that crime victims do not have an
independent right to appeal the sentence imposed on the
perpetrator of the crime. We also reject the
contention of the Office of Victims Rights that they
have an independent right to challenge the decisions of
the trial court in any case where the Office has
appeared on behalf of a crime victim.
Accordingly, we dismiss Part I of this
original application for relief.
Underlying facts
The Municipality of Anchorage prosecuted
Daniel Cooper for assaulting his wife, Cynthia Cooper.
This prosecution was ultimately resolved by a plea
bargain. Under the terms of the agreement, Daniel
agreed to plead no contest to one count of family
violence under Anchorage Municipal Code 8.10.050
(i.e., domestic assault committed in the presence of
minor children), with the further agreement that he
would receive a suspended imposition of sentence with 1
years probation. Apparently, Cynthia was consulted
during the negotiation of this plea agreement.
When the Municipality and Daniels defense
attorney originally described the contemplated plea
bargain to the district court, the defense attorney
stated that one of Daniels conditions of probation
would be to [complete a] domestic violence intervention
program within a year. However, when the parties later
returned to court for Daniels sentencing, it became
clear that there was disagreement concerning exactly
what kind of counseling or therapy Daniel would be
obligated to pursue.
In advance of sentencing, Daniel had been
participating in counseling with Dr. Keith Wiger. Even
though Dr. Wigers program was not approved by the
Department of Corrections as a certified domestic
violence intervention program, Daniels defense
attorney told the sentencing judge District Court
Judge Gregory J. Motyka that the plea agreement would
allow Daniel to satisfy his counseling obligation by
continuing in Dr. Wigers program. The municipal
prosecutor did not concede that the plea bargain (as
originally negotiated) allowed this, but the prosecutor
stated that the Municipality did not object to Judge
Motykas exercising discretion on the question of
whether to order Daniel to continue with Dr. Wigers
program or, instead, order him to enroll in a domestic
violence intervention program approved by the
Department of Corrections.
This colloquy drew an objection from the
attorney from the Office of Victims Rights who was
representing Cynthia Cooper. The Victims Rights
attorney declared that Cynthia had agreed to the plea
bargain only because Daniel would be required to
complete a DOC-approved domestic violence intervention
program. The Victims Rights attorney told Judge
Motytka, Its [Cynthias] position that [the agreement as
previously stated in court] was a contract, ... and
that the parties are now bound by that agreement.
Judge Motyka pointed out that no one was
bound by any facet of the plea agreement until the
agreement was formally accepted by the court. The
Victims Rights attorney conceded that this was correct.
However, the Victims Rights attorney argued that, under
AS 12.55.101(a)(1), if the court ordered Daniel Cooper
to attend any treatment for the purpose of
rehabilitat[ing] perpetrators of domestic violence,
that treatment had to take place in a program approved
by the Department of Corrections.
Judge Motyka asked the prosecutor if the
Municipality still took the position that the question
of domestic violence counseling or treatment would be
left to [the courts] discretion. The prosecutor said
yes. Judge Motyka then declared that he disagreed with
the Victims Rights attorneys interpretation of the law;
that is, Judge Motyka did not believe that AS
12.55.101(a) required him to impose a DOC-approved
batterers intervention program instead of some other
form of rehabilitative treatment. And, when Judge
Motyka ultimately imposed the terms of Daniels
probation, he allowed Daniel to continue attending Dr.
Wigers program.
After Judge Motyka sentenced Daniel, Cynthia
filed a motion asserting that the counseling portion of
Daniels sentence was illegal. Judge Motyka refused to
modify this aspect of the sentence, and Cynthia
thereupon sought appellate review of Judge Motykas
decision.
Alaska law defining the rights of crime victims
Our system of criminal law has its roots in
England. Originally, there was no criminal law system
as we know it today no network of police agencies and
government prosecutors. When a crime was committed, it
was up to the members of the community to apprehend the
perpetrator, and (except in cases where the crime was
of particular interest to the crown) it was up to the
victim to prosecute the case in court.
The basic premise of this system was that
criminal conduct constituted an injury to the victim
either to the victims physical self, or to the victims
property, or to the victims dependents. Thus, it was
the victims task to bring the perpetrator to court so
that the perpetrator could be punished. As explained
in Wayne R. LaFave, Jerold H. Israel, and Nancy J.
King, Criminal Procedure (2nd ed. 1999),
[T]he English originally viewed the
responsibility of the state for the
administration of justice as limited to
providing means by which the injured person,
or his kinsman or friends[,] might secure
adequate redress without resorting to private
warfare. When the Normans introduced the
jury, they did not substantially alter that
philosophy. They sought merely to gain the
advantage of community knowledge of local
events. As first established, jurors were
neighbors who are likely to know something of
the facts in question. They typically based
their verdicts on their own knowledge and
what they heard from their friends. As
England moved from a rural to a more
urbanized society, it was no longer possible
to assume that jurors were self-informed. A
method had to be developed for presenting the
facts to the jury in the course of the trial.
At that time, the English still had a strong
tradition of private prosecution (although
its underlying philosophy arguably had
shifted the role of the private person from
[seeking] personal vindication to assisting
the state in redressing a wrong against the
state), and the juries had already
established the practice of hearing
occasional witnesses. The natural
progression, it is argued, was to move to an
adversary trial in which both sides were
allowed to present their own witnesses and to
cross-examine the oppositions witnesses.
LaFave, 1.4(c), Vol. 1, p. 177 n. 113
(citations omitted).
As LaFave indicates, the
involvement of the state in this process was
seen as a beneficial substitute for private
retribution and vendetta. Although the
victim personally prosecuted the case, a jury
decided whether the defendant was guilty, and
a judge imposed punishment on the guilty.
Even so, the early English view [was that]
criminal prosecution [was] a means of
providing personal redress, with the person
claiming to be the victim of a crime having
personally to establish his right to
redress.1
This was the system that the early
American colonists imported from England:
Under the English common law system that
the colonists brought with them to this
country, satisfaction of the victims interest
in gaining the conviction of the offender lay
largely in the victims own hands. With no
organized police department, if investigation
was needed to determine who had committed the
crime, that task fell to the victim (unless
the Crown had some special interest in the
offense). Whatever governmental assistance
was available often came at a fee, as did
much private investigative assistance. Once
the identity of the offender was determined,
the victim had to arrange for the arrest and
the issuance of the arrest warrant. Since
the English common law system also relied
primarily on private prosecution, the victim
then bore the responsibility of presenting
the prosecution [case] at trial ... .
LaFave, 1.4(k), Vol. 1, pp. 209-210
(footnotes omitted). This system obviously
favored the rich and powerful those with
sufficient influence and resources to
apprehend the purported wrongdoer and to
pursue the case in court.
But by the late eighteenth century,
societys view of criminal conduct and the
proper function of the criminal law had begun
to change. Criminal conduct was no longer
viewed as a private injury to the victim.
Rather, crime was seen as an injury to the
community. Criminal investigations were
conducted by public police departments, and
criminal prosecutions were brought by the
state on behalf of the community as a whole.2
It became the governments task to bring the
wrongdoer to justice: government
prosecutors, not crime victims, decided
whether charges should be filed; likewise, if
charges were filed, government prosecutors
directed the litigation of those charges.
[During] the ... half century [following
American independence], public prosecutors
gained a virtual monopoly over the decision
to prosecute and the presentation of the
prosecution [case] at trial. Most
jurisdictions continued to permit private
attorneys representing the victim to
participate in the prosecution, but that
practice ordinarily was dependent upon the
permission of the prosecutor and was used
primarily in misdemeanor cases. ...
Another somewhat later development
impacting the victims role was the
establishment of the local police department.
With the police department available to
conduct investigations and make arrests, the
victims role in these aspects of the process
was reduced dramatically. Victims were not
legally precluded from either conducting
investigations or making arrests, but the
legal, economic, and other advantages enjoyed
by the police made victim[s] use of that
authority impracticable in all but
exceptional cases. In large part, the
victims actions at this stage of the process
came to be limited to reporting offenses to
the police and then providing such additional
cooperation (e.g., eye-witness
identification) as the police might request.
LaFave, 1.4(k), Vol. 1, pp. 210-11
(footnotes omitted).
Crime was no longer perceived as
primarily an injury to the individual victim.
Rather,
Crime [was] now conceived of entirely in
terms of an offense against society. The
damage to the individual victim [was]
incidental[,] and its redress [was] no longer
regarded as a function of the criminal
justice process. Rather, it [was] separated
off and ... treated as a matter of civil
justice. While the victim [was] allowed to
decide what [should] be done with the case as
a civil matter[,] ... the criminal case
belong[ed] solely to the state and public
officials.
LaFave, 1.4(k), Vol. 1, p. 211 (quoting
William McDonald, Towards a Bicentennial
Revolution in Criminal Justice: The Return
of the Victim, 13 Am. Crim. L. Rev. 649, 650
(1976)).
By the twentieth century, it was
firmly established that in American
jurisprudence ... , a private citizen lacks a
judicially cognizable interest in the
[criminal] prosecution or nonprosecution of
another ... . Linda R. S. v. Richard D., 410
U.S. 614, 619; 93 S.Ct. 1146, 1149; 35
L.Ed.2d 536 (1973).
Obviously, this meant that there
would be times when government prosecutors
would be at odds with crime victims. The
government prosecutor might not view the
facts in the same way as the victim, and thus
the prosecutor might conclude that no crime
had been committed. Or the prosecutor might
agree that a crime had probably been
committed, but nevertheless conclude that the
case could not be proved in court. Or the
prosecutor might disagree with the victim
concerning the proper charges to file against
the defendant. Or, after charges were filed
and the case brought to court, the prosecutor
might disagree with the victim concerning how
the case should be litigated, or whether (and
on what terms) the case should be settled, or
what punishment should be sought in the event
of the defendants conviction.
It was not that lawmakers failed to
recognize these potential conflicts. Rather,
it was perceived that these problems were
outweighed by the societal benefits of having
an objective government official, as opposed
to a person whose personal interests were at
stake, decide whether a citizen should be
charged with a crime, and what that charge
should be, and how that charge should be
litigated or settled.
And yet, in the latter part of the
twentieth century, some people began to call
for a re-evaluation of the victims role or,
more precisely, non-role in this modern
system. The reformers asserted that, because
crime victims had no right to actively
participate in the criminal justice process,
the criminal justice system had stopped
paying sufficient attention to the people
harmed or threatened by criminal conduct.
Responding to this criticism, various states
enacted statutes or constitutional amendments
(or both) which were (in the words of the
Massachusetts Supreme Court) intended to
change the traditional [role] of victims from
virtually silent observers to active
participants in the criminal justice
process.3
In Alaska, these reform efforts led
to the amendment of our statutes governing
criminal procedure and, later, to the
amendment of our state constitution.
In 1989, the Alaska Legislature
enacted the Crime Victims Rights Act.4 The
section of this act that enumerates victims
rights, AS 12.61.010, provides (among other
things) that a crime victim has the same
right as the defendant to be present at court
hearings5 and the right to be notified of
these court hearings,6 as well as the right
to make a written or oral statement for use
in preparation of the pre-sentence report in
felony cases,7 and the right to appear
personally at the defendants sentencing
hearing and to present a written statement
and/or make a sworn or unsworn oral
presentation at that hearing.8
Five years later, in 1994, a
victims rights section (Section 24) was added
to Article I of the Alaska Constitution.9
Article I, Section 24, states:
Crime victims, as defined by law, shall
have the following rights as provided by law:
the right to be reasonably protected from the
accused through the imposition of appropriate
bail or conditions of release by the court;
the right to confer with the prosecution; the
right to be treated with dignity, respect,
and fairness during all phases of the
criminal and juvenile justice process; the
right to timely disposition of the case
following the arrest of the accused; the
right to obtain information about and be
allowed to be present at all criminal or
juvenile proceedings where the accused has
the right to be present; the right to be
allowed to be heard, upon request, at
sentencing, before or after conviction or
juvenile adjudication, and at any proceeding
where the accuseds release from custody is
considered; the right to restitution from the
accused; and the right to be informed, upon
request, of the accuseds escape or release
from custody before or after conviction or
juvenile adjudication.
Cynthia Cooper and the Office of Victims Rights rely on
this section of the constitution, as well as the
provisions of the Alaska Victims Rights Act quoted
above, to support their contention that the victim of a
crime and/or the Office of Victims Rights are
authorized to seek appellate review of a sentencing
judges decision.
Under Alaska law, does a victim of a crime have an
independent right to appeal the sentence imposed
on the perpetrator of the crime?
As we have just explained, a crime victim in
Alaska now has the right to attend all the proceedings
that the defendant has the right to attend, and a crime
victim has the right to provide input before certain
decisions are made in particular, the decision as to
what sentence a convicted defendant should receive.
But neither Article I, Section 24 of the Alaska
Constitution nor the Victims Rights Act (AS 12.61)
expressly gives crime victims the right to intervene in
the litigation of a criminal case in the sense of
determining what charges should be brought, or
determining how those charges should be litigated or
settled, or determining whether the prosecutor should
seek appellate review of particular judicial decisions.
Moreover, as we explained earlier, the case
presently before us involves a situation where the
prosecuting authority (the Municipality of Anchorage)
does not believe that the challenged judicial decision
was illegal or adverse to the governments interests.
At the sentencing hearing, when it appeared that the
plea bargain might unravel over the issue of court-
ordered treatment, the prosecutor took the position
that Judge Motyka would be acting within his lawful
authority if he declined to order Daniel Cooper to
attend a DOC-approved batterers intervention program.
Thus, by bringing this original application
for relief, Cynthia Cooper is not merely pursuing a
legal claim that the prosecutor has declined to pursue.
Rather, she is pursuing a legal claim that is adverse
to the declared interests of the Municipality of
Anchorage because a decision in her favor might lead
to a motion by Daniel Cooper to withdraw from the plea
agreement.
Although Alaska law does not expressly give
crime victims the right to appeal a defendants
sentence, Cynthia Cooper contends that this right is
implicit in one or more clauses of Article I, Section
24 or AS 12.61.010.
(a) Cynthia Coopers argument that the district
courts imposition of an allegedly illegal sentence
violates her right to a timely disposition of the
criminal case
Cynthia points out that Article I, Section 24
of the Alaska Constitution gives crime victims the
right to timely disposition of [a criminal] case
following the arrest of the accused. As explained
earlier in this opinion, Cynthia claims that, under
Alaska sentencing law, once Judge Motyka made the
decision to order Daniel Cooper to attend
rehabilitative treatment as a condition of probation,
the judge was obliged to order Daniel to attend a DOC-
approved batterers intervention program. Cynthia
argues that, because Judge Motyka failed to do this,
Daniel Coopers sentence is illegal. Then, relying on
appellate decisions which declare that an illegal
sentence is not meaningfully imposed, Cynthia argues
that Daniel has never been meaningfully sentenced and,
thus, that she (Cynthia) has been denied her right (as
a crime victim) to a timely disposition of this case.
It is true that, in prior decisions, this
Court has repeatedly declared that, to the extent a
sentence is illegal, it has not been meaningfully
imposed.10 But these decisions involved the question
of whether the illegal portion of the sentence could be
adjusted or corrected to the defendants detriment,
despite the fact that the double jeopardy clause
normally precludes a court from adjusting a defendants
sentence upward once it has been imposed. In this
context, when we declared that the illegal sentence (or
the illegal portion of the sentence) had not been
meaningfully imposed, we were saying that the double
jeopardy clause did not forbid adjustment of the
sentence (or the challenged portion of the sentence) to
the defendants detriment.
This is quite different from asserting that a
defendant who receives an illegal (or partially
illegal) sentence has never really been sentenced for
any purpose. The fact that there may be a legal defect
in the defendants sentence does not mean that the
sentencing was a complete nullity, nor does it mean
that a victims right to a timely disposition of the
criminal case has been violated.
A victims right to a timely disposition of a
criminal case is satisfied if the proceedings take
place in a timely manner, even if an appellate court
later concludes that the proceedings were flawed and
must be repeated. In the present case, even if we
assume for purposes of argument that one aspect of
Daniel Coopers sentence was illegal (the portion
directing him to complete his treatment with Dr. Wiger
rather than engaging in treatment at a DOC-approved
batterers intervention program), and even if we assume
that the double jeopardy clause would allow correction
of this purported flaw, the fact remains that the
sentencing did take place. Cynthias right to a timely
disposition of the case was therefore satisfied.
See Hagen v. Commonwealth, 772 N.E.2d 32, 36
(Mass. 2002), where the Massachusetts Supreme Court
said:
We conclude that[, by guaranteeing crime
victims a right to prompt disposition of
criminal charges,] the Legislature sought to
assure for victims a prompt disposition
within the context of the trial process ... .
In the present case, the defendant was tried
and sentenced within one year of [his]
indictment ... . The statutory requirement
of a prompt disposition thus has been
satisfied.
For these reasons, we reject Cynthias contention that
the entry of judgement against a criminal defendant does not
constitute a disposition of the case if there is an
attackable flaw in the sentencing judges decision.
(b) Cynthia Coopers argument that, because crime
victims have a constitutional and statutory right to
be heard at the sentencing hearing, crime victims
must have the right to independently challenge the
sentencing judges decision if the victim concludes
that the sentence is illegal
Cynthias next argument is based on the fact
that the Alaska Constitution and the Alaska Victims
Rights Act give crime victims the right to be heard at
sentencing that is, the right to provide input before
the judge decides what sentence the defendant should
receive. Cynthia argues that a crime victim must have
a corresponding right to appeal the judges sentencing
decision if the victim concludes that the judge has
imposed an illegal sentence.
To properly analyze this argument, it is
crucial to distinguish between, on the one hand, a
crime victims acknowledged procedural rights to attend
the sentencing proceedings and to provide input before
the judge makes the sentencing decision and, on the
other, the right asserted by Cynthia Cooper in this
litigation: the asserted right to intervene in the
lawsuit and independently demand or seek appellate
review of the judges sentencing decision.
In her brief to this Court, Cynthia cites
several appellate decisions from other states that have
enacted victims rights laws. She claims that these
courts have recognized a crime victims standing to
litigate various claims based on their states victims
rights acts.
Cynthias brief contains a mistaken analysis
of some of these appellate decisions. For example,
Cynthia claims that the New Jersey Supreme Court held
in State v. Timmendequas, 737 A.2d 55, 75-76 (N.J.
1999), that, because crime victims in New Jersey have a
constitutional right to attend the trial, a crime
victim has standing to object to a defendants request
for change of venue if the new location would pose a
substantial obstacle to the victims attending the
trial. This is a misreading of the New Jersey courts
decision. The Timmendequas decision merely holds that
it is not improper for a trial judge to take account of
the inconvenience that a change of venue would pose to
the crime victim, provided that the constitutional
rights of the defendant are not denied or infringed on
by [the judges] decision.11
Moreover, in the Timmendequas case, it was
the prosecutor who addressed the trial judge and
articulated the victims concerns.12 Thus, Timmendequas
does not even reach the narrower question of whether
the victim was personally entitled to be heard on this
issue if, for some reason, the prosecutor did not share
the victims position.
Similarly, in State in the Interest of K.P.,
709 A.2d 315 (N.J. Superior 1997), the question was
whether a juvenile court judge, when deciding whether
to grant a media request to open the proceedings to the
public, could lawfully consider the victims opposition
to this request an opposition that was presented by
the prosecuting attorney.
It is true that the New Jersey court worded
its decision in terms of the victims standing, but the
issue was not the victims standing as a party to the
lawsuit, but rather whether the court could lawfully
consider the victims position when ruling on a non-
party newspapers request to open the proceedings to the
media. As stated by the New Jersey court, [t]he issue
[was to identify] the factors [that] the court may
[properly] consider [when] exercising its discretion.13
The New Jersey court did not reach the issue
of whether the victim might have the right to seek
appellate review of an adverse decision. Moreover, as
was the case in Timmendequas, it was the prosecutor who
addressed the judge and articulated the victims
concerns.14 Thus, like Timmendequas, the decision in
Interest of K.P. does not reach the narrower question
of whether the victim would have been personally
entitled to be heard on this issue if the victim and
the prosecutor had been at odds.
Cynthia cites Melissa J. v. Superior Court,
237 Cal.Rptr. 5 (Cal. App. 1987), as a case in which a
court recognized a crime victims standing to sue to
protect their procedural rights. This is correct: in
Melissa J., the California Court of Appeal held that a
crime victim is entitled to notice and a right to be
heard before the sentencing judge terminates or reduces
the defendants previously imposed obligation to pay
restitution; the court also held that a crime victim
has standing (after exhausting trial court remedies) to
ask an appellate court to enforce this procedural
right.15 However, while the California court concluded
that a crime victim could seek an appellate remedy for
an improper abridgement of their procedural right to be
heard, the court also noted that a crime victim is not
considered a party to [the] criminal proceeding.16
Returning to the present case, we conclude
that this case does not require us to decide whether
Alaska law would likewise recognize a crime victims
standing to sue to enforce the procedural rights
specified in Article I, Section 24 of our state
constitution or in AS 12.61.010 because, in the
present case, those rights were honored. Cynthia
Cooper was notified of the trial court proceedings, she
attended those proceedings (along with her lawyer from
the Office of Victims Rights), and she was allowed to
present her views to the sentencing judge (both
personally and through her lawyer).
Rather, the question before us is whether, if
a crime victims procedural rights have been honored but
the victim is dissatisfied with the sentencing judges
substantive decision, the victim may independently seek
appellate review of that decision. American courts are
unanimous in answering no to this question.
For example, in State v. Lamberton, 899 P.2d
939 (Ariz. 1995), the Arizona Supreme Court
acknowledged that a crime victim would have standing to
seek appellate review if the crime victim was denied
one or more of the rights enumerated in Arizonas
Victims Rights Act. Id. at 942. At the same time,
however, the Arizona court held that a crime victim had
no standing to seek appellate review of a trial courts
decision to grant the defendants petition for post-
conviction relief and to order re-sentencing. Id. at
942-43.
The Maryland Court of Appeals (that states
highest court) reached the same decision in Cianos v.
State, 659 A.2d 291 (Md. 1995). The court held that a
crime victim is not a party to the criminal litigation,
and that the victim has no right to appeal the
judgement entered against the defendant. Like the
Arizona court, the Maryland court acknowledged that a
crime victim could seek appellate enforcement of the
rights granted by Marylands Victims Rights Act. But
the Maryland court declared that any such appeal is
collateral to[,] and may not interrupt[,] a criminal
case, nor can judicial review of a victims rights
violation result in reversal of the judgment [or] a
reopening of the [underlying criminal] case. Id. at
293-94.
In Dix v. Superior Court, 807 P.2d 1063 (Cal.
1991), the California Supreme Court held that a crime
victim has no right to object to a prosecutors decision
to ask the sentencing judge to recall (i.e., vacate) a
defendants sentence and to allow the defendant to be re-
sentenced at a later time, so that the defendant could
testify against other offenders and thus, potentially,
earn a reduction of his sentence. The California
Supreme Court declared that [e]xcept as specifically
provided by law, a private citizen has no personal
legal interest in the outcome of an individual criminal
prosecution against another person. ... [T]he victim
of the crime is not a party.17
In Dix, the crime victim argued that the
contemplated recall of the defendants sentence would
jeopardize the victims personal safety, since the
defendant had allegedly threatened the victim with
future harm.18 The crime victim pointed out that the
California Constitution had been amended in 1982 to
guarantee crime victims the right to appropriate
detention, trial, and punishment of criminal offenders.
The victim argued that, because of the threat to his
personal safety, any recall of the defendants sentence
would violate those rights.19 The California court
answered:
The [California] Constitution and
statutes do accord individual felony victims
certain rights of a ... specific and personal
nature. These include the right to
restitution in appropriate circumstances, and
[the right] to receive notice, appear [in
court], and state [their] views in connection
with disposition and sentencing. [But]
whatever special considerations of standing
may apply to this limited category of victims
rights, ... [w]e hold that [the victim] has
no personal right or interest which would
permit his intervention in the decision
[whether] to recall [the defendants]
sentence.
Dix, 807 P.2d at 1067.
Having lost his argument to the
California Supreme Court, the crime victim in
Dix then took his case to the federal courts.
In Dix v. County of Shasta, 963 F.2d 1296,
1298-1300 (9th Cir. 1992),20 the Ninth
Circuit held that crime victims have no
federal due process interest in the
incarceration of criminals, even when their
state has enacted a victims rights act.
Similarly, in Gansz v. People, 888
P.2d 256, 257-59 (Colo. 1995), the Colorado
Supreme Court held that, despite the
enactment of a victims rights amendment, the
Colorado Constitution still does not give
crime victims the right to appeal a courts
dismissal of criminal charges. In Johnston
v. State, 702 N.E.2d 1085, 1088 (Ind. App.
1998), the Indiana Court of Appeals held that
crime victims have no standing to contest a
sentencing judges decision to grant a
downward modification of a defendants
sentence.21 In State v. Barnett, 980 S.W.2d
297, 308 (Mo. 1998), the Missouri Supreme
Court held that, despite the procedural
rights guaranteed to crime victims by the
Missouri Victims Rights Act, crime victims
have no right to dictate the prosecutors
charging decision, nor do they have standing
to object to the judges sentencing decision.
Another decision reaching this same
conclusion is Reed v. Becka, 511 S.E.2d 396
(S.C. 1999), where the South Carolina Supreme
Court held that a crime victim has no right
to veto a plea agreement and force the
prosecutor to renew the negotiations or take
the defendant to trial. The South Carolina
court acknowledged that South Carolinas
Victims Rights Act gives crime victims the
right to confer with the prosecuting attorney
concerning any contemplated plea agreement.22
Nevertheless, the court declared, a crime
victim possesses no rights in the appellate
process, nor any right to veto a proposed
plea agreement:23
Nothing in our Constitution or statutes
provides the victim standing to appeal the
trial courts order [accepting the proposed
plea agreement]. [While] the rights granted
by the South Carolina Constitution and
statutes are enforceable by a writ of
mandamus, [these provisions of law do not
confer a right of] direct participation at
the trial level.
Reed v. Becka, 511 S.E.2d at 399.
See also State v. Martineau, 808
A.2d 51, 53-54 (N.H. 2002), and State ex rel.
Wild v. Otis, 257 N.W.2d 361, 364-65 (Minn.
1977).
Amicus curiae Victim Advocacy and
Research Group contends that one court the
Massachusetts Supreme Court has held that
crime victims have standing to intervene in
criminal litigation and independently
challenge the rulings of the trial court.
The Victim Advocacy and Research Group claims
that the Massachusetts court recognized a
crime victims standing in Hagen v.
Commonwealth, 772 N.E.2d 32 (Mass. 2002). We
disagree. Here is the pertinent language
from Hagen:
[T]he victim of a crime does not have a
judicially cognizable interest in the
prosecution of another. The rights which
[the victim in this case] seeks to enforce
... are not private but in fact are lodged in
the Commonwealth. A [criminal] prosecution
is conducted in the interests of the
Commonwealth, not on behalf of the victim.
... The district attorney is the elected
advocate of the people for a broad spectrum
of societal interests from ensuring that
criminals are punished for wrongdoing, to
allocating limited resources to maximize
public protection. ...
[N]othing in [the Massachusetts Victims
Rights Act] either alters our long-standing
jurisprudence that the victim of a crime does
not have a judicially cognizable interest in
the prosecution of another or confers on a
victim the status of a party to the criminal
proceeding[.]
Hagen, 772 N.E.2d at 37-38 (citations and
internal quotations omitted).
Although the Hagen decision appears
to firmly reject the idea that crime victims
have standing in criminal cases, the Victim
Advocacy and Research Group argues that [t]he
language of the [Hagen] decision ... is ...
misleading that the Massachusetts court
actually recognized a crime victims standing,
but the court soft-pedaled its ruling for
political reasons.
The Victim Advocacy and Research
Group supports this argument by pointing out
that, in Justice Cowins concurring opinion in
Hagen, she criticized her colleagues for
creat[ing] a right of victims to participate
in the proceeding as a nonparty.24 But
Justice Cowin was not speaking of a victims
right to independently challenge the rulings
of the trial court. Rather, she was
criticizing the Hagen majority for suggesting
that crime victims have the right to
personally address the trial judge before the
judge makes decisions that involve any of the
rights guaranteed by the Massachusetts
Victims Rights Act.
The majority in Hagen declared that
victims should be permitted an opportunity to
address the [trial] court directly when their
fundamental right to a prompt disposition is
jeopardized.25 Justice Cowin believed that
this was an unwarranted expansion of the
Massachusetts Victims Rights Act. She took
the position that, except in situations where
a victims right to independently address the
court is expressly granted (for instance, the
victims right to speak at the sentencing
hearing),26 the Victims Rights Act should
not be interpreted as conferring on victims
the right to personally address the court.
Rather, Justice Cowin argued, crime victims
who wish to express their position on other
subjects affecting their rights must seek
assistance from the victim and witness board,
the district attorney[,] or the Attorney
General, none of whom is required to assist
the victim in this specific regard.27
To sum up: Many states have
enacted victims rights acts, either by
constitutional amendment or by legislation or
both. And among these states, many courts
are prepared to recognize a crime victims
standing to sue for enforcement of the
procedural rights granted by the victims
rights act the rights to notice, to attend
court proceedings, and to offer their views
on certain decisions (especially sentencing
and parole release). But no court has
endorsed the position espoused by Cynthia
Cooper in this appeal the position that the
enactment of a victims rights act gives crime
victims the right to participate as
independent parties to a criminal prosecution
or to otherwise challenge the substantive
rulings of the trial court.
We agree with the reasoning of the
court decisions discussed above in
particular, the distinction these courts have
drawn between, on the one hand, protecting a
crime victims procedural rights and, on the
other hand, allowing crime victims to
participate as independent parties in
criminal prosecutions.
Under Alaska law, crime victims are
guaranteed the right to attend a defendants
sentencing hearing and to offer their views
regarding the sentence that the defendant
should receive. It may well be (although we
do not decide this issue) that if a court
failed to honor these rights, a crime victim
would be entitled to ask an appellate court
to issue a writ of mandamus that is, an
order directing the trial court to let the
victim exercise these rights.
But as we explained above, the
present case does not involve an infringement
of Cynthia Coopers right to attend Daniel
Coopers sentencing hearing and to offer her
views regarding the proper sentence. These
rights were fully honored.
Instead, Cynthia asserts that a
victims right to be heard at the sentencing
hearing necessarily carries with it the right
to challenge the sentencing judges decision
if the victim believes that the judge imposed
an unlawful sentence. But the fact that a
person or organization is legally entitled to
express their views in court does not
necessarily mean that this person or
organization is also entitled to appeal the
courts decision if the court does not adopt
their view of the facts or their view of the
law.
For instance, Alaska law calls for
the Department of Corrections to prepare a
pre-sentence report in all felony cases.28
In that pre-sentence report, the Department
of Corrections offers its conclusions
regarding the facts of the case and often
expresses its view regarding the sentence
that should be imposed. Even though the
Departments view may not necessarily coincide
with the positions taken by either the
prosecuting attorney or the defense attorney,
no one has suggested that the Department of
Corrections has an independent right to
appeal the courts sentencing decision if the
sentencing judge does not adopt the
Departments view.
The same thing is true with regard
to the right of crime victims to appear at
the sentencing hearing and express their
views concerning the proper sentence. Alaska
law guarantees crime victims the right to
provide this input when the judge is making
the sentencing decision, but the law does not
guarantee crime victims a right to attack the
sentencing decision if the judge fails to
adhere to the crime victims views regarding
the proper sentence.
(c) Cynthia Coopers argument that, unless crime
victims have a right to appeal, prosecutors and
defense attorneys will collude with sentencing
judges to evade and defeat the rights of crime
victims
Cynthia Cooper, and the various amici curiae
allied with her, contend that if this Court does
not allow her to independently challenge the
district courts sentencing decision, we will (in
effect) be authorizing prosecutors and defense
attorneys to collude with trial court judges to
circumvent the law for example, by agreeing to
unlawful settlements of criminal cases in which
the defendant is not required to suffer the full
penalty provided by law for their crime, or is not
required to participate in rehabilitative programs
specified by law.
We need not reach the question of what this
Court would do if the record of the trial court
proceedings demonstrated this type of flagrant
misconduct. In the present case, there was no
flagrant misconduct. In fact, there was no
misconduct at all.
Cynthia Cooper and the Office of Victims
Rights assert that (1) Judge Motyka concluded that
Daniel Coopers conditions of probation should
include a program of rehabilitative counseling or
treatment for batterers, and that (2) once Judge
Motyka reached this conclusion, the judge could
not lawfully allow Daniel to pursue this
rehabilitative counseling or treatment by
attending Dr. Wigers program because Dr. Wigers
program is not approved by the Department of
Corrections. Cynthia and the Office of Victims
Rights argue that, under AS 12.55.101(a), Judge
Motyka was obliged to order Daniel to attend a DOC-
approved batterers intervention program.
The pertinent portion of AS 12.55.101(a)
reads:
If a person convicted of a crime
involving domestic violence is placed on
probation, the court ... may
(1) require the defendant to
participate in and complete to the
satisfaction of the court one or more
programs for the rehabilitation of
perpetrators of domestic violence that
meet the standards set by, and that are
approved by, the Department of
Corrections under AS 44.28.020(b), if
the program is available in the
community where the defendant resides;
the court may not order a defendant to
participate in or complete a program for
the rehabilitation of perpetrators of
domestic violence that does not meet the
standards set [by], and that is not
approved [by,] the Department of
Corrections under AS 44.28.020(b).
As can be seen, the statute says
that the sentencing judge may require the
defendant to attend a batterers intervention
program. Generally, the legislatures use of
the word may means that an action is
permitted but not required.29
Cynthia concedes that the statute
gives sentencing judges discretion on this
point. She argues, however, that once a
sentencing judge concludes that a defendant
should participate in a program for the
rehabilitation of domestic violence
offenders, the statute limits the judges
discretion concerning the particular program
that the defendant is ordered to attend.
Cynthia asserts that, in the
present case, the prosecution, the defense,
and the judge all agreed that [Daniel] Cooper
needed a rehabilitation program to deal with
his domestic violence and abuse.
Accordingly, Cynthia argues, Judge Motyka was
required to specify a batterers intervention
program approved by the Department of
Corrections.
Cynthias argument hinges on the
underlying premise that any rehabilitative
program designed to cure or counteract a
defendants propensity to commit acts of
domestic violence must be deemed a batterers
intervention program of the sort that AS
12.55.101(a) addresses. We do not agree with
this premise.
Initially, we note that the
definition of crime involving domestic
violence is quite broad. AS 12.55.185(4)
declares that, for purposes of the sentencing
statutes, domestic violence has the meaning
given in AS 18.66.990. In prior decisions
chiefly, Bingaman v. State, 76 P.3d 398, 407
(Alaska App. 2003), and Carpentino v. State,
42 P.3d 1137, 1141 (Alaska App. 2002)
(opinion on rehearing) we have explained how
the definition of domestic violence codified
in AS 18.66.990 is much broader than what
most people would think.
The phrase domestic violence is
normally understood to mean an assault
committed by one domestic partner against
another. But under AS 18.66.990, this phrase
is defined in a wide-ranging way, quite
divorced from its everyday meaning:
For example, if an elderly uncle comes
to visit his favorite nephew and, while
lighting his pipe, recklessly scorches a
table cloth or a chair, the old man has
seemingly just committed an act of domestic
violence as defined in AS 18.66.990(3). That
is, the uncle has committed the listed
offense of criminally negligent burning under
AS 11.46.430 (negligently damaging the
property of another by fire), and the victim
is related to the perpetrator within the
fourth degree of consanguinity thus
qualifying them as household members under AS
18.66.990(5)(E).
Similarly, if a group of former college
roommates decide to hold a twenty-year
reunion at one of their homes, and if one of
the visiting former roommates gets drunk and
recklessly jams his friends CD player while
trying to insert a CD into it, this roommate
has seemingly just committed an act of
domestic violence. The intoxicated roommate
has committed the listed offense of
fourth-degree criminal mischief under AS
11.46.486(a)(1) (tampering with the property
of another with reckless disregard for the
risk of harm or loss), and all of the former
college roommates are household members under
AS 18.66.990(5)(B).
Carpentino, 42 P.3d at 1141.
Similarly, a person who causes a
traffic accident through criminal negligence
and, by chance, happens to injure the child
of a former high school sweetheart has
committed a crime involving domestic violence
as defined in AS 18.66.990. Bingaman, 76
P.3d at 412.
Because the definition of crime
involving domestic violence is so expansive
because it encompasses many situations that
have nothing to do with an assault by one
domestic partner against another there will
be many cases in which, even though the
defendants crime may qualify as a crime
involving domestic violence, it makes no
sense to require the defendant to undergo
batterers intervention treatment.
Second, even in cases of typical
domestic violence, where one domestic partner
has in fact assaulted another, there will be
times when the sentencing judge may
reasonably conclude that a batterers
intervention treatment program is not the
answer. For instance, the judge may conclude
that the defendants assaultive conduct arose
from a major mental illness (for instance,
schizophrenia), or that the assaultive
conduct was the one-time product of a
specific emotional stress (for example, the
loss of a career or the loss of a child).
In such circumstances, the
sentencing judge might reasonably conclude
that, rather than sending the defendant to a
batterers intervention program (that is, a
program designed to address the possessive,
controlling, and manipulative behaviors that
typify batterers), it would be more
productive to order the defendant to engage
in other kinds of treatment. And because
there will be such cases, it makes sense for
the legislature to allow the sentencing judge
to evaluate each case on its own merits,
rather than requiring judges to send all
defendants to complete a batterers
intervention treatment program.
In the present case, the defense
attorney argued that Daniel Cooper had not
committed acts of violence before, and that
the present case was an anomaly. The defense
attorney also argued that it was important
for Daniel to continue participating in Dr.
Wigers program because abuse is not his only
issue.
Shortly before Judge Motyka imposed
Daniels sentence, the judge declared that,
given the facts of the case, he did not
believe that AS 12.55.101(a) required him to
send Daniel to a batterers intervention
program:
The Court: [The violence committed on
the victim in this case was], at best, a
slap. It [was] an act done by a 57-year-old
man with no priors, [no] alcohol or anger
convictions. Minimal injur[y]. And if you
took [away] all the bad blood, what you would
have is a first-time offender pleading [no
contest] to family violence. ... I dont
agree with [the Office of Victims Rights
contention] that [the statute] requires a
DVIP [i.e., a domestic violence intervention
program] in this [situation].
Based on this record, it appears
that Judge Motyka concluded that a batterers
intervention program was not the best
treatment for Daniel Cooper, and that Daniel
should instead be ordered to complete Dr.
Wigers program.
For these reasons, we reject
Cynthia Coopers argument that the prosecutor,
the defense attorney, and Judge Motyka
colluded to circumvent the statute. We also
reject Cynthias argument that Judge Motyka
found that Daniel needed to attend a
batterers intervention program, but then
violated the statute by sending Daniel to a
batterers intervention program that was not
DOC-approved. Rather, the record shows that
Judge Motyka concluded that Daniel should be
sent to Dr. Wigers program instead of a
batterers intervention program.
(d) Cynthia Coopers argument that a crime victim
must be able to appeal a judges decision if the
judge fails to give sufficient consideration to
any of the interests of crime victims enumerated
in the Alaska Constitution and the Alaska Statutes
Finally, Cynthia Cooper argues that crime
victims must have the right to appeal whenever a
judge fails to sufficiently consider any of the
interests of crime victims guaranteed by law
i.e., the interests enumerated in Article I,
Section 24 of the Alaska Constitution and in
various provisions of the Alaska Statutes.
Cynthia points out that Article I, Section 24
guarantees the right of crime victims to be
treated with fairness during all phases of the
criminal ... justice process. Cynthia argues that
this right to be treated with fairness must
encompass the right to insist on enforcement of
all of the provisions of the Alaska Statutes that
speak to the interests of crime victims.
For instance, with regard to the present
case, AS 12.55.101(a) declares that when a
sentencing judge is considering whether to grant
probation to a defendant convicted of a crime of
domestic violence, the judge is obliged to
consider the safety and protection of the victim
and any [other] member of the victims family.
Cynthia argues that, because of this statutory
mandate (coupled with the constitutional guarantee
of fair treatment for crime victims), a victim of
domestic violence must have the right to appeal a
sentencing judges decision if the judge imposes a
sentence that does not (in the victims estimation)
adequately guarantee the safety and protection of
the victim and the other members of the victims
family.
In the present case, Cynthia contends that
Judge Motyka failed to give adequate consideration to
her safety and the safety of her children when the
judge declined to order Daniel to participate in a
batterers intervention program. Cynthia argues that
Judge Motyka, in making this decision, improperly
disregarded her safety and thus violated AS
12.55.101(a) by failing to ensure that [Daniel]
receive[d] appropriate rehabilitat[ive treatment].
Several provisions of the Alaska Statutes
require judges to consider the interests of crime
victims before making certain decisions. One example
is AS 12.55.101(a). Another example is AS
12.30.027(a), which states that before a court orders
the pre-trial or post-trial bail release of a defendant
prosecuted for a crime of domestic violence, the court
must consider the safety of the alleged victim or other
household member.
But we do not read these statutes to mean
that crime victims are to be deemed parties to the
criminal prosecution of the perpetrator. Nor do we
read these statutes as demonstrating the legislatures
intent to have crime victims file appeals whenever they
are dissatisfied with a judges weighing of their
interests.
Our conclusion regarding the legislatures
position on this issue is confirmed by actions the
legislature took during its 2005 session. In that 2005
legislative session, a bill was introduced House Bill
55 relating to the rights of crime victims. Under
House Bill 55, a new statute (AS 12.61.013) would have
been enacted giving crime victims the right to petition
the superior court or the district court for an order
restraining [the] violation or compelling [the]
implementation of [any of the] rights granted to
victims by regulation, statute, or constitutional
provision.30 If the victim was dissatisfied with the
trial courts ruling, the victim could then appeal the
trial courts decision to this Court.31
The proposed statute would also have required
an expedited appellate process, as well as relaxation
of the appellate rules governing the form and content
of briefs and other documents.32
The legislature took no action on House Bill
55. Instead, the legislature enacted a more modest
proposal giving crime victims the right to seek
appellate review of one particular type of sentencing
decision: the right to petition this Court to review
any felony sentence which, because of the mitigating
factors listed in AS 12.55.125(d), has been reduced
below the presumptive range for that crime.33 See AS
12.55.120(f).
Under this legislation, a crime victims right
to petition for review of the defendants sentence
applies only to felony cases because only felony
offenses carry a presumptive range of sentences. The
case presently before this Court involves a misdemeanor
sentence. Thus, the legislatures recent enactment of
AS 12.55.120(e) does not aid Cynthia Coopers argument
that she is entitled to seek appellate review of Judge
Motykas sentencing decision.
In fact, the legislatures enactment of a
statute of such limited scope severely undercuts
Cynthias contention that the legislature has granted
crime victims broad, independent authority to challenge
any sentencing decision. The legislatures passage of
House Bill 54, coupled with its failure to take action
on House Bill 55, indicates that the legislature
purposely declined to pass legislation that would have
made a crime victim a party to a criminal case, or that
would have given crime victims an extensive independent
right to litigate whenever they believed that their
rights had been abridged or that inadequate
consideration had been given to their interests.
Instead, the legislature gave crime victims the limited
right to seek appellate review of certain felony
sentences (sentences below the presumptive range).
We acknowledge that, under AS 12.55.101(a),
a judge must consider the goal of protecting the
victim(s) when the judge sentences a defendant to
probation for a crime of domestic violence. Indeed,
this duty to consider the future safety of victims is
not confined to domestic violence cases. Under
AS 12.55.005, the sentencing judge in any criminal case
must consider the need to confine the defendant to
prevent further harm to the public, the effect of the
sentence ... as [an expression of] community
condemnation of the criminal act and as a reaffirmation
of societal norms, and restoration of the victim and
the community.34
Thus, under Alaska law, a sentencing judge
must always consider the victims interests and the
interests of the community protection of the
community, reaffirmation of community values, and
restoration of the victim and the community when
choosing the defendants sentence. But this does not
mean that all members of the community have the right
to challenge the judges sentencing decision if they
believe that the judges decision fails to adequately
protect the public, or fails to adequately express
condemnation of the defendants crime, or fails to
adequately restore the community. Even though Alaska
law requires sentencing judges to consider both the
interests of the community at large and the interests
of the people who have particularly suffered as a
result of the defendants conduct, a criminal
prosecution is not a private lawsuit brought by the
victim(s) against the defendant, nor is a sentencing
hearing a community meeting in which all members of the
public have a right to enter the discussion and, if
dissatisfied, challenge the decision.
As we explained in the first section of this
opinion, our system of criminal justice is no longer
based on the idea that individual victims should bring
perpetrators to court in order to obtain retribution
and restitution for the harm done to their personal
interests. Rather, criminal conduct is seen as an
injury to the community. Criminal prosecutions are
undertaken in the name of the community, and the
executive branch of government (as the representative
of the community) has the sole responsibility and
authority to initiate and litigate criminal cases and,
if necessary, to challenge a trial courts decisions by
seeking appellate review.
When the legislature enacted our states
Victims Rights Act (AS 12.61), and when the legislature
and the voters later enacted the victims rights
provision of our state constitution (Article I, Section
24), they undoubtedly wanted to enhance the
participation of crime victims in the criminal justice
process, and to make sure that judicial officers and
prosecuting attorneys paid attention to the interests
of crime victims. But the question before us now is
whether the legislature and the voters wanted to change
the basic rule that criminal litigation is initiated
and directed by public prosecutors who act in the name
of the community, rather than by crime victims who act
in their own interest.
It is true, as we acknowledged earlier, that
prosecuting attorneys may sometimes make decisions that
run contrary to the interests or the wishes of crime
victims. Likewise, there will be times when a crime
victim disagrees with the sentencing judge concerning
how much jail time a defendant should serve, or how big
a fine the defendant should pay, or what obligations
the defendant should have to fulfill when the defendant
is released on probation.
One might argue in fact, Cynthia does argue
that, in these instances, there is a possibility that
the prosecutor or the sentencing judge will be wrong,
and the crime victim will be right. But most often
there will be no right answer and no wrong answer.
Instead, it will be a question of judgement or a
question of degree.
Who is to say whether a defendant should be
charged with manslaughter (that is, reckless homicide)
or, instead, the lesser offense of negligent homicide?
Who is to say whether the government should take the
defendant to trial or, instead, negotiate a plea
bargain with the defendant? If the case goes to trial
and the defendant is convicted, who is to say whether
the defendant should receive a sentence of five years
imprisonment or only three?
For two hundred years, the people of this
country have believed that the fairest way to resolve
these questions is to put the responsibility in the
hands of public officials prosecutors and judges who
have no personal interest in the case. Indeed, some
courts have held that the constitutional guarantee of
due process of law includes the requirement that all
decisions in a criminal prosecution be made by a
prosecutor who has no personal stake in the outcome.35
There will be times when a crime victim is
dissatisfied with the way a case is handled or
resolved. But we, as a society, have decided that it
is fairer to let public officials make these decisions,
rather than putting the victim in charge of making
these decisions, or letting the victim second-guess or
veto these decisions.
In the main, this a matter of principle. But
it is also a matter of practicality. The case
presently before this Court is not entirely
representative of the problem, because here there is
only one primary victim. There can easily be more than
one victim in a criminal case. Assault and theft cases
with three or more victims are not unusual. Indeed, in
cases of securities fraud or consumer fraud, there can
be dozens or even hundreds of victims. If each of
these victims had a separate right to ask for appellate
review of the decisions of the prosecuting attorney and
the sentencing judge, the system would be unworkable,
and our goal of uniform justice would recede farther
from sight.
Conceivably, the people of this state (or
their elected representatives) might decide to change
this fundamental aspect of the criminal justice system.
But the question in the present case is whether the
voters and the legislature have already done so. Did
the voters and the legislature, by enacting the victims
rights section of our state constitution and the
statutes that comprise our Victims Rights Act, intend
to alter our system of justice so that crime victims
are treated as independent parties in criminal
prosecutions (as they were two hundred years ago), with
the right to go to court to challenge the substantive
decisions of prosecutors and trial judges? We conclude
that the answer is no.
(e) Conclusion
For all of the reasons we have discussed
here, we conclude that a crime victim does not have an
independent right to appeal or petition an appellate
court to review the sentence imposed on the perpetrator
of the crime (except, perhaps, for the limited right of
petition now granted by AS 12.55.120(f)).
As we noted earlier, some courts have
recognized a crime victims right to pursue litigation
seeking relief in the nature of mandamus (i.e., an
appellate court order directing a lower court to follow
the law) when a lower court fails to honor the
procedural rights given to crime victims by state
constitution or by state statute. This issue is not
raised in the present case; neither Cynthia Cooper nor
her attorney from the Office of Victims Rights claims
that Judge Motyka failed to allow them to attend and be
heard at the sentencing hearing.
Accordingly, we leave for another day the
question of whether a crime victim in Alaska has the
right to seek appellate relief when a lower court fails
to honor a crime victims procedural rights specified in
Article I, Section 24 of the Alaska Constitution or in
the Alaska Statutes.
The authority of the Office of Victims Rights to
independently pursue this litigation
As explained above, the Office of Victims
Rights is representing Cynthia Cooper in this
litigation. However, the Office claims that they have
a greater role in this litigation than simply providing
legal representation to Cynthia at public expense. The
Office asserts that even if Cynthia has no standing to
challenge the sentence imposed by the district court,
the Office of Victims Rights has independent authority
to challenge this sentence.
The Office of Victims Rights points out that
the Alaska Legislature has given the Office
jurisdiction to advocate on behalf of [the] victims of
felony offenses or class A misdemeanors ... involving
domestic violence or a crime against a person under
AS 11.41.36 Further, the legislature has directed the
Office of Victims Rights to assist crime victims in
obtaining the rights [that] crime victims are
guaranteed under the constitution and the laws of
[Alaska] with regard to the contacts crime victims have
with justice agencies.37 Based on its statutory role
as an advocate for crime victims, the Office of Victims
Rights argues that it has the independent authority to
file lawsuits that advance the interests of crime
victims, even when the crime victims themselves would
have no right to sue.
But the fact that the Office of Victims
Rights is authorized to serve as an advocate for crime
victims does not mean that the Office has an
independent right to file lawsuits that the victims
themselves could not file.
Attorneys and this includes attorneys who
are salaried officers of a public agency are the legal
representatives of the clients they serve. An attorney
is empowered to appear in court for the client, and to
make certain decisions on the clients behalf, but the
attorneys authority to file a lawsuit is merely an
extension of the clients authority to do so. The
lawsuit can go forward only if the client has standing
to pursue the litigation. That is, when an attorney
has no personal legal rights at stake and is acting
solely as the legal representative of a client, the
attorney has no independent right to file a lawsuit
when the client has no personal right to file the
lawsuit.
The following cases all hold that a
government attorney who is statutorily authorized or
obliged to serve as the legal representative of a
government agency has no independent authority to
pursue litigation if the client agency does not wish to
pursue that litigation:
See Soliman v. Ebasco Services Inc., 822 F.2d
320, 323 (2nd Cir. 1987); Santa Rita Mining Co. v.
Department of Property Valuation, 530 P.2d 360, 363
(Ariz. 1975); Chun v. Board of Trustees of the
Employees Retirement System of the State of Hawaii, 952
P.2d 1215, 1225, 1230 (Haw. 1998); Motor Club of Iowa
v. Iowa Department of Transportation, 251 N.W.2d 510,
513, 515-16 (Iowa 1977); State v. Hagan, 175 N.W. 372,
374 (N.D. 1919); Matter of Taylor B., 491 S.E.2d 607,
613 (W.Va. 1997).
Moreover, the claim made by the Office of
Victims Rights that the Office has independent
authority to file a lawsuit whenever the Office
determines that the lawsuit would advance the interests
of crime victims is inconsistent with the statutes
that describe the Offices powers.
As explained above, AS 24.65.100(a) gives the
Office of Victims Rights the authority to advocate on
behalf of crime victims, and AS 24.65.110(a) gives the
Office the authority to assist crime victims in
securing their legal rights. But even in situations
where the Office of Victims Rights believes that the
rights of a crime victim have been violated, the
legislature has not authorized the Office to file a
lawsuit. Instead, as we are about to explain, the
legislature has given the Office of Victims Rights the
authority to publicly criticize a government agency if
the Office believes that the agency has violated a
crime victims rights.
Under AS 24.65.120 130, the Office of
Victims Rights is given the power to investigate
potential violations of crime victims rights. If the
Office preliminarily concludes that a government agency
or official has violated the rights of a crime victim,
the Office must consult with that agency or official.
AS 24.65.140. If that consultation fails to resolve
the problem, and the Office still believes that a crime
victims rights have been violated, the Office shall
[formally] report [its] opinion and recommendations to
[the] agency [involved]. AS 24.65.150(a). And, after
waiting a reasonable amount of time following its
report to the agency in question, and with the approval
of the complaining citizen, the Office may present
[its] opinion and recommendations to the governor, the
legislature, a grand jury, the public, or any of these.
AS 24.65.160.
These are essentially the same powers that
are given to an analogous arm of the government: the
Office of the Ombudsman.
Under AS 24.55.160 220, the Ombudsman is
empowered to investigate and ultimately report on the
workings of state government, if the Ombudsman
concludes that an agency of the government has treated
a citizen unfairly or unreasonably. Like the Office of
Victims Rights, the Office of the Ombudsman is
authorized to investigate complaints against government
agencies. If the Ombudsman preliminarily concludes
that a government agency has treated a citizen unfairly
or unreasonably, the Office must consult with the
agency involved. AS 24.55.180. If that consultation
fails to resolve the problem, and the Ombudsman still
believes that the agency has mistreated the citizen,
the Ombudsman shall [formally] report [its] opinion and
recommendations ... to [the] agency [involved]. AS
24.55.190. And, after waiting a reasonable amount of
time following its report to the agency in question,
the Ombudsman may present the opinion and
recommendations to the governor, the legislature, a
grand jury, the public[,] or any of these. AS
24.65.200.
In other words, it appears that the
legislature intended the Office of Victims Rights to
act as a special ombudsman in the area of victims
rights. This undercuts the Office of Victims Rights
assertion that the Office has an independent power to
intervene in a criminal prosecution and appeal the
final judgement because the Ombudsman has no such
power.
As we have explained above, neither the
statutes outlining the powers of the Ombudsman nor the
statutes outlining the powers of the Office of Victims
Rights have any provision for filing lawsuits against
an offending state agency or official. Instead, the
legislature has granted the Ombudsman and the Office of
Victims Rights the powers to investigate, to advise and
mediate, and, when necessary, to publicize the failings
of government agencies by informing the public of
their findings, and/or by communicating those findings
to an arm of the government that is empowered to take
legal action.
This is the approach taken in the American
Bar Associations Model Ombudsman Act for State
Governments first issued in 1974 and later revised in
1997. Under the terms of the Model Act, an ombudsman
is authorized to investigate, to consult and to
mediate, and to criticize. However, the ombudsman has
no power to coerce government agencies to take action,
nor the power to sue government agencies in court
except to the limited extent of suing government
agencies to force them to comply with Ombudsman
subpoenas, or to enjoin their willful obstruction of
the Ombudsmans other investigative efforts, or to force
them to honor the obligation of confidentiality that
normally attaches to the Ombudsmans preliminary report.
(See, for example, AS 24.55.190(c).)
With respect to the Office of Victims Rights
assertion that they have the authority to challenge the
substance of the district courts sentencing decision in
this case, we particularly note the following Comment
to Section 3(a)(1) of the Model Ombudsman Act for State
Governments (1997) a model act that was drafted by the
United States Ombudsman Association, based primarily on
the ABAs Model Act:38
[The Model Act precludes ombudsman
investigations of judicial acts because of]
the existence of the long-established system
of appellate review of judicial decisions ...
. [T]he Ombudsman would have jurisdiction to
investigate administrative or ministerial
acts by employees of the judicial branch,
when those acts are peripheral to the
adjudication itself[, as well as jurisdiction
to] make recommendations for improving
administrative procedures that would have a
prospective effect. [However, the] Ombudsman
would not, of course, have the jurisdiction
to question, criticize or review the
substantive content of any judicial order,
decision or opinion.
This same limitation on an
ombudsmans authority is also reflected in the
ABAs Standards for the Establishment and
Operation of Ombuds Offices issued in 2004.
Under the ABA Standards, an ombudsman should
have no authority to make, change, or set
aside a law, policy, or administrative
decision (Standard D(1)), or to directly
compel [any] entity or any person to
implement the [ombudsmans] recommendations
(Standard D(3)). Moreover, under Standard
D(5), an ombudsman should have no authority
to accept jurisdiction over an issue that is
currently pending in a legal forum unless all
parties and the presiding [judicial] officer
in that action explicitly consent.
Alaskas ombudsman statutes in
particular, AS 24.55.100 200 do not depart
from the substance of sections 11 through 15
of the ABAs Model Ombudsman Act. Based on
the wording of our statutes, and based on the
commentary to the ABAs 1974 Model Ombudsman
Act and its successors, we conclude that the
Alaska Legislature intended to codify the
policy embodied in the model ombudsman acts
the policy that the ombudsman does not have
the jurisdiction to question, criticize[,] or
review the substantive content of any
judicial order, decision[,] or opinion.
As we pointed out earlier, when the
Alaska Legislature created the Office of
Victims Rights, the legislature defined the
powers of that Office using provisions that
parallel the statutes defining the powers of
the state ombudsman. We therefore conclude
that the legislature intended this same
policy to apply to the Office of Victims
Rights. That is, the legislature did not
intend for the Office of Victims Rights to
have the authority to initiate litigation to
question, criticize, or otherwise seek review
of the substantive content of any judicial
order, decision, or opinion.
For these reasons, we reject the
assertion of the Office of Victims Rights
that the Office has independent authority to
appeal or otherwise challenge a sentencing
decision in circumstances where the Offices
client (i.e., the crime victim whom they are
representing) has no personal standing to
pursue the litigation.
Part II
Did the district court abuse its discretion when the
court denied Cynthia Coopers post-hearing request
to seal the statements made by Daniel Coopers
defense attorney concerning the mental health and
behavioral problems suffered by Cynthias son?
As we explained at the beginning of this
opinion, the second part of Cynthia Coopers
original application for relief raises the
question of whether Cynthia is entitled to have a
portion of the sentencing hearing sealed from
public access.
The sentencing hearing in this case was open
to the public, and the hearing was apparently
attended by spectators and representatives of the
media.
During the defense attorneys sentencing
argument on behalf of Daniel Cooper, she referred
to the fact that Cynthias son (who lived with the
couple) was suffering from mental health and
behavioral problems. The defense attorney argued
that the boys problems were a major source of
stress in Cynthias and Daniels relationship, and
that this stress was a primary factor in causing
Daniel to engage in this instance of assaultive
conduct.
Neither Cynthia nor her attorney from the
Office of Victims Rights objected to the defense
attorneys statements about the boys problems. However,
on the Monday following the sentencing hearing, the
Office of Victims Rights (acting on Cynthias behalf)
filed a motion asking the district court to seal the
defense attorneys statements on this subject. Cynthia
contended that the defense attorneys statements
contained confidential and privileged information about
her son.
Ultimately, the district court declined to
seal the defense attorneys statements. The district
courts ruling led to this second part of Cynthias
original application for relief.
A more detailed history of this litigation, and a
description of the various legal arguments that Cynthia
has asserted in favor of sealing the defense attorneys
statements
Cynthias original motion to seal portions of
the sentencing record asserted that the defense
attorneys statements violated her sons right of privacy
and her sons right (as the family member of a crime
victim) to be treated with fairness, dignity, and
respect. However, in later pleadings, the Office of
Victims Rights emphasized that the legal basis of
Cynthias request was the assertion that the defense
attorneys statements revealed confidential information
that was protected by the sons psychotherapist-patient
privilege.
In its Reply to [the opposition to the]
Motion to Temporarily Seal Court Records (dated April
2, 2004), the Office of Victims Rights acknowledged
that any admissible information presented at the
sentencing hearing even derogatory and misleading
comments should properly remain part of the public
record. But the Office of Victims Rights argued that
the defense attorneys challenged statements did not
contain admissible information. Rather, the Office of
Victims Rights asserted, the defense attorneys
statements contained inadmissible, privileged
information and, thus, those statements should be
struck from the public record. The problem, the Office
of Victims Rights told the court, was that the defense
attorneys statements violated the psychotherapist-
patient privilege.
The Municipality of Anchorage opposed
Cynthias motion. One of the Municipalitys arguments
was that the Office of Victims Rights had no legal
authority to file motions on Cynthias behalf on this
kind of issue since the issue did not involve any
infringement of the rights contained in the Victims
Rights Act, but rather involved an assertion of
evidentiary privilege by Cynthia on behalf of her son.
As we explained in the preceding section of
this opinion, there is an arguable legal basis for the
Municipalitys position. However, we need not resolve
this legal issue because, as we explain here, Cynthias
claim of privilege lacks merit.
On May 4, 2004, the district court denied
Cynthias motion to seal the defense attorneys
statements. The court noted that the defense attorneys
statements were relevant to the issues to be decided at
the sentencing hearing, and the court further noted
that neither Cynthia nor her attorney from the Office
of Victims Rights objected (at the time) to the defense
attorneys statements.
Two weeks later, the Office of Victims Rights
filed a motion asking the district court to reconsider
its decision. In its motion for reconsideration, the
Office of Victims Rights conceded that the defense
attorneys statements might have been relevant to the
issues at the sentencing hearing, but the Office
reiterated its argument that those statements were
nevertheless inadmissible. In addition, the Office of
Victims Rights raised a new argument: the contention
that, before the defense attorney could make the
challenged statements, Daniel Cooper was obliged to
take the stand and personally testify to the assertions
of fact contained in his defense attorneys statements.
The district court did not issue a decision
on this motion for reconsideration. Instead, the court
allowed the motion to become denied by operation of law
(after the passage of 30 days). See Criminal Rule
42(k)(4).
Why Cynthia is entitled to pursue only the one argument
based on the psychotherapist-patient privilege
As just explained, Cynthia filed several
pleadings in the district court, and those pleadings
mentioned various theories as to why the district court
should have sealed the defense attorneys statements.
Cynthias original pleading mentioned notions of privacy
and victims rights. However, the Office of Victims
Rights (acting on Cynthias behalf) ultimately told the
district court that the issue was one of evidentiary
privilege. Cynthia asserted that the defense attorneys
statements should be struck from the public record
because those statements contained confidential
information that was protected by the psychotherapist-
patient privilege codified in Alaska Evidence Rule 504.
After the district court denied Cynthias
motion to seal the defense attorneys statements,
Cynthia filed a motion for reconsideration in which she
raised yet another potential legal basis for sealing
the challenged statements. But as our supreme court
stated in Blackburn v. Department of Transportation and
Public Facilities, 103 P.3d 900, 906 (Alaska 2004), a
court [is] under no obligation to consider an issue
raised for the first time in a motion for
reconsideration and if the trial court decides not to
address the newly raised issue, that issue can not be
pursued on appeal.
For these reasons, we conclude that the sole
argument that Cynthia has preserved for appeal is the
argument that the defense attorneys statements violated
the psychotherapist-patient privilege. All of Cynthias
other arguments are waived.
Why we reject Cynthias argument that the defense
attorneys statements should be struck from the public
record of the sentencing hearing
We have two reasons for rejecting Cynthias
contention that the challenged statements should be
struck from the public record. First, with one
possible exception, none of the challenged statements
appear to be covered by the psychotherapist-patient
privilege. Second, Cynthia waived whatever psycho
therapist-patient privilege she might otherwise have
claimed when she and her attorney from the Office of
Victims Rights failed to contemporaneously object to
the challenged statements.
(a) With one possible exception, Cynthia had no
valid claim of privilege with respect to the defense
attorneys statements
Alaska Evidence Rule 504(b) contains the
following definition of the psychotherapist-patient
privilege:
General Rule of Privilege. A patient
has a privilege to refuse to disclose and to
prevent any other person from disclosing
confidential communications made for the
purpose of diagnosis or treatment of the
patients physical, mental[,] or emotional
conditions ... between or among the patient,
the patients physician or psychotherapist, or
persons who are participating in the
diagnosis or treatment under the direction of
the physician or psychotherapist, including
members of the patients family.
As can be seen from the text of this rule,
the privilege applies only to confidential
communications among the group of people
named in Evidence Rule 504(b). The term
confidential communication is defined in
Evidence Rule 504(a)(4):
A communication is confidential if [it
is] not intended to be disclosed to third
persons other than those present to further
the interest of the patient in the
consultation, examination, or interview, or
[to] persons reasonably necessary for the
transmission of the communication, or [to]
persons who are participating in the
diagnosis and treatment under the direction
of the physician or psychotherapist,
including members of the patients family.
During her sentencing argument on
behalf of Daniel Cooper, the defense attorney
referred several times to the mental health
and behavioral problems suffered by Cynthias
son. But the psychotherapist-patient
privilege does not cover all testimony that
discloses that someone suffers from mental
health or behavioral problems, or that
describes those problems, or that describes
other peoples reactions to those problems.
The privilege has a narrower scope: it
applies only to testimony that reveals the
substance of confidential communications made
for the purpose of diagnosing or treating
those problems.
Cynthia objects to statements made
by the defense attorney which asserted or
revealed: (1) that Cynthias son had
undergone counseling for something that had
happened to him; (2) that the boy was
troubled; (3) that he was not responding well
to the counseling; (4) that he engaged in
abusive behavior while in counseling; (5)
that he had been sent to live in a
residential facility for several months; (6)
that Cynthia and Daniel were experiencing
stress because of their uncertainty as to how
to deal with the boys problems; (7) that, a
few days before Daniels act of domestic
violence, both Cynthia and Daniel had to
leave work because school officials contacted
them and informed them that Cynthias son was
engaging in inappropriate behavior; (8) that
Cynthia believed that her son had engaged in
other inappropriate behavior at home;
(9) that, one day later, Daniel told Cynthia
that he thought that her son needed to return
to residential treatment;39 (10) that two
nights before the domestic assault, Cynthia
and Daniel were having dinner with another
couple, and the man of this couple ordered
Cynthias son to leave the table because the
boy was being obnoxious; (11) that Cynthia
believed that the man had acted
inappropriately, so she followed her son up
to his room to talk to him; (12) that,
following this conversation with her son,
Cynthia came back downstairs and announced
(in front of everyone) that she was going to
end her relationship with Daniel that she
was leaving, and that she was taking her son
with her, to protect her son from Daniels
plan to send the boy back to a residential
facility; (13) that Daniel and Cynthia had a
house rule that Cynthias son was not to have
his bedroom door closed; and (14) that on the
night of the domestic assault, Cynthia
apparently assisted her son in locking his
door.
None of the defense attorneys
statements appear to reveal the substance of
confidential communications as that term is
defined in Evidence Rule 504(a)(4). Indeed,
many of the defense attorneys statements do
not reveal the substance of any communication
at all.
The defense attorney did allude to
one communication that is arguably covered by
the psychotherapist-patient privilege: a
statement attributed to a mental health
professional who was treating Cynthias son,
in which the mental health professional
expressed an assessment of the boys case.
This particular statement may not have been
admissible over a claim of privilege. But as
we explain in the next section of this
opinion, no objection was made.
(b) Cynthia forfeited her claim of privilege by
failing to object to the defense attorneys
statements
Under the law of evidence, there are many
types of evidence which should be excluded if someone
objects, but which remain admissible if no one objects.
For instance, the law excludes many types of hearsay
evidence, but this hearsay evidence is admissible and
is properly considered by the court if no one
objects.40
There is a similar rule for evidence that is
covered by one of the privileges codified in the 500
section of the Alaska Evidence Rules. Under Evidence
Rule 510, the holder of an evidentiary privilege waives
their privilege if they voluntarily ... consent[] to
disclosure of any significant part of the matter or
[the] communication.
Evidence Rule 510 speaks of waiver, which
normally entails an affirmative action a voluntary
relinquishment of a known right.41 However, the
Commentary to Evidence Rule 510 explains that Rule 510
is really talking about forfeiture the loss of the
privilege through failure to act. This rule of
forfeiture applies even when the privilege-holder was
unaware, at the time, that they could have claimed a
privilege and prevented the disclosure of the
information:
In [these] situations, once [the]
confidentiality [of the information] is
destroyed through voluntary disclosure, no
subsequent claim of privilege can restore it,
and [the privilege-holders] knowledge or lack
of knowledge of the existence of the
privilege appears to be irrelevant. 8
Wigmore [on Evidence] 2327.
Commentary to Alaska Evidence Rule 510, third
paragraph.
Moreover, in this context, the law
deems a person to have consented to the
disclosure of privileged information if the
person, being present and able to object to
the disclosure, fails to object. For
instance, in John W. Strong et al., McCormick
on Evidence (5th ed. 1999), the authors
explain that this rule of forfeiture i.e.,
loss of the privilege through inaction
governs the attorney-client privilege:
[I]t is clear that the client may assert
the privilege even though he is not a party
to the cause [in which] the privileged
testimony is sought to be elicited. [But] if
he is present at the hearing[,] whether as
[a] party, witness, or bystander[,] he must
assert the privilege personally or by [his]
attorney, or it will be waived.
McCormick, 92, Vol. 1, pp. 369-370.
See also McCormicks discussion of
the same rule applied to the marital
privilege, id., 83, Vol. 1, p. 336: A
failure by the holder to assert the privilege
by objection ... is a waiver.
Also see Williams v. Utility
Equipment, Inc., 837 P.2d 1112, 1116-17
(Alaska 1992), where the Alaska Supreme Court
held that, despite the existence of a
protective order excluding the challenged
testimony, [the appellant] waived his
objections ... when he did not make specific
objections [at the time] the testimony was
presented.
In Clifton v. State, 758 P.2d 1279
(Alaska App. 1988), this Court applied the
same rule to the psychotherapist-patient
privilege. We declared that this privilege
is not self-executing: The plain language of
[Evidence Rule 504] appears to require that
someone act to exercise the privilege. Id.
at 1284. Accordingly, we found no plain
error in a case where neither the defendant
nor his attorney objected (until appeal) to
the contested disclosures. Id.
In the present case, Cynthia and
her attorney did not object to the defense
attorneys statements until after the
sentencing hearing was over, and after the
sentencing judge had already relied on the
challenged statements. In her brief to this
Court, Cynthia asserts that she was surprised
and caught off guard by the defense attorneys
statements. There is nothing in the record
to support this assertion. In fact, the
record appears to belie this assertion
because the statements that Cynthia
challenges in this appeal were uttered over
the course of several minutes. The defense
attorney repeatedly referred to these matters
during her sentencing argument to the court;
the challenged statements are scattered
throughout ten pages of the sentencing
transcript.
Moreover, under the rule of
forfeiture that we have described above, it
does not matter if Cynthia was surprised by
the fact that the defense attorney would
mention these matters. When the holder of an
evidentiary privilege is present and able to
object to the disclosure of information
covered by the privilege, but the privilege-
holder fails to object, the privilege is lost
and the disputed evidence is admissible.
Arguably, the present case raises a
slightly different issue: whether a
privilege-holder who has waived the privilege
by failing to object may later retroactively
assert the privilege and ask the court to
erase or seal the record of the earlier
challenged testimony.
According to Wigmore on Evidence,42
the rule at common law is that once an
evidentiary privilege is waived, the
privilege can not be reasserted by the
privilege-holder at a later stage of the same
proceeding, or at any subsequent judicial
proceeding:
A waiver at a former trial should bar a claim
of the [physician-patient] privilege at a
later trial, for the original disclosure
takes away once and for all the
confidentiality sought to be protected by the
privilege. To enforce it thereafter is to
seek to preserve a privacy which exists in
legal fiction only.
Wigmore, 2389(4), Vol. 8, pp. 860-61.
Accord: Cerro Gordo Charity v.
Firemans Fund American Life Ins. Co., 819
F.2d 1471, 1478 (8th Cir. 1987); State v.
Mincey, 687 P.2d 1180, 1194 (Ariz. 1984);
State v. Clark, 296 N.W.2d 372, 376 (Minn.
1980); State v. Bishop, 453 A.2d 1365, 1368
(N.J. App. 1982); People v. Bloom, 85 N.E.
824, 825-26 (N.Y. 1908); General American
Life Ins. Co. v. Ettinger, 42 N.Y.S.2d 836,
837 (N.Y. App. 1943); In re Postley, 479
N.Y.S.2d 464, 465 (N.Y. Misc. 1984).
For these reasons, we conclude that
Cynthias failure to raise a contemporaneous
objection to the defense attorneys statements
means that Cynthia forfeited her right to
claim that the defense attorneys statements
violated her sons psychotherapist-patient
privilege.
(c) Conclusion
As we have explained here, none of the
defense attorneys statements (with one possible
exception) revealed confidential communications
covered by the psychotherapist-patient privilege.
Moreover, neither Cynthia Cooper nor her attorney
from the Office of Victims Rights objected to the
defense attorneys statements until after the
sentencing hearing was over. For these reasons,
the psychotherapist-patient privilege provided no
basis for Cynthia Cooper to ask the district court
to seal the defense attorneys statements from the
public.
Overall Conclusion
This case has required us to resolve weighty
issues that have not been decided before in
Alaska. Our opinion is quite lengthy, and not
only because the issues were new.
The question of victims rights inspires
strong feelings, and the main question posed in this
appeal whether a crime victim has a right to
independently challenge the substantive decisions of
the trial judge has required us to examine some of the
most fundamental principles of our criminal justice
system. We have been aided in this task by a number of
amicus curiae briefs, and we appreciate the care and
effort that went into the researching and writing of
those briefs.
For the reasons explained here, we conclude
that neither Cynthia Cooper nor the Office of Victims
Rights has the right to challenge the district courts
sentencing decision. The right to challenge the
sentencing decision rests solely with the parties to
this criminal prosecution the plaintiff, Municipality
of Anchorage, and the defendant, Daniel Cooper.
Accordingly, this portion of the original application
for relief is DISMISSED.
We further conclude that the district court
correctly denied Cynthia Coopers request to seal
portions of the sentencing hearing from the public
because (with one possible exception) the challenged
statements made by the defense attorney do not contain
information protected by the psychotherapist-patient
privilege, and also because Cynthia waived whatever
privilege she would otherwise have had when she failed
to contemporaneously object to the defense attorneys
statements. Accordingly, with regard to this portion
of the original application for relief, the decision of
the district court is AFFIRMED.
_______________________________
* Sitting by assignment made pursuant to Article IV, Section
11 of the Alaska Constitution and Administrative Rule 23(a).
1 LaFave, 1.4(d), Vol. 1, p. 189.
2 LaFave, 1.4(d), Vol. 1, p. 189.
3 Hagen v. Commonwealth, 772 N.E.2d 32, 38 (Mass. 2002)
(internal quotations omitted).
4 SLA 1989, ch. 59.
5 AS 12.61.010(a)(1).
6 AS 12.61.010(a)(2)-(3).
7 AS 12.61.010(a)(8).
8 AS 12.61.010(a)(9).
9 See Legislative Resolve No. 58 of the 18th Alaska
Legislature, section 2.
10 See, e.g., Smith v. State, 892 P.2d 202, 203-04 (Alaska
App. 1995); Dunham v. Juneau, 790 P.2d 239, 240-41 (Alaska
App. 1990); State v. LaPorte, 672 P.2d 466, 468-69 & n. 6
(Alaska App. 1983).
11 Timmendequas, 737 A.2d at 76 (emphasis in the
original).
12 Id. at 74-75.
13 Interest of K.P., 709 A.2d at 316.
14 Id. at 316-17.
15 Melissa J., 237 Cal.Rptr. at 6-7.
16 Id. at 6.
17 Dix, 807 P.2d at 1066 (citations omitted).
18 Id.
19 Id. at 1067.
20Overruled on other grounds in Sandin v. Conner, 515 U.S.
472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
21Affirmed in part, Johnston v. Dobeski, 739 N.E.2d 121,
123 (Ind. 2000).
22Reed v. Becka, 511 S.E.2d at 400.
23Id. at 399, 400.
24Hagen, 772 N.E.2d at 38.
25Id. at 38.
26See Massachusetts General Law 258B, 3(p), which declares
that crime victims have the right to be heard through
an oral and written victim impact statement at
sentencing[,] ... about the effects of the crime on the
victim and as to a recommended sentence ... .
27Id. at 39.
28Alaska Criminal Rule 32.1(b)(1).
29See, e.g., Wongittilin v. State, 36 P.3d 678, 682 (Alaska
2001).
30 24th Legislature, House Bill 55, 3.
31 Id.
32 Id.
33 SLA 2005, ch. 65, 4.
34 AS 12.55.005(3), (6), and (7).
35 See Adkins v. Commonwealth, 492 S.E.2d 833 (Va. App.
1997), where the court held that the defendants right to due
process was violated when a private attorney retained by the
victims family was appointed as a special prosecutor to
handle the defendants case, after the regular prosecuting
attorney withdrew. The court stated:
[When] a special prosecutor has a personal interest in
the outcome of the prosecution, his objectivity and
impartiality are called into question, and a defendants
right to a fair and impartial trial is violated. A
special prosecutor who was formerly employed by the
victims family in connection with the same proceeding
is incapable of exercising the fair-minded
prosecutorial discretion to which the defendant is
entitled ... .
Adkins, 492 S.E.2d at 835. Accord, State v. Eldridge, 951 S.W.2d
775, 782-83 (Tenn. Crim. App. 1997).
36 AS 24.65.100(a).
37 AS 24.65.110(a).
38 The complete text of this Model Act is available
through the web site of the American Bar Associations
section on Administrative Law and Regulatory Practice:
http://www.abanet.org/adminlaw/ombuds/usoamodel1.html
39This statement was conceivably made for the purposes of
furthering the boys treatment, but it does not appear
to be confidential. From the defense attorneys
narrative, it seems that Daniel made this statement in
front of another couple who were having dinner at
Cynthias and Daniels home.
40 Hayes v. State, 581 P.2d 221, 222 n. 2 (Alaska 1978);
Vaska v. State, 74 P.3d 225, 230 (Alaska App. 2003); Cassell
v. State, 645 P.2d 219, 220-21 (Alaska App. 1982).
41 See, for instance, Vroman v. Soldotna, 111 P.3d 343,
347 n. 9 (Alaska 2005); Hillman v. Nationwide Mutual Fire
Ins. Co., 758 P.2d 1248, 1253 (Alaska 1988).
42J. Wigmore, Evidence in Trials at Common Law (Chadbourn
rev. 1978).
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