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Cooper v. District Court (4/14/2006) ap-2043

Cooper v. District Court (4/14/2006) ap-2043

                             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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