A state Superior Court judge and a well-known Anchorage prosecutor are locked in an unusual and bitter legal dispute that has landed before the Alaska Court of Appeals. Hanging in the balance is the future of one of Alaska's few legally insane killers.

Prosecutor Jay Fayette says Judge John Suddock violated the rules when he approached a state commissioner outside the courtroom and talked about a case. He wants Suddock to remove himself from the case, but Suddock is refusing to walk away, saying he did nothing wrong.

The issue in front of the court is one that has vexed state officials for years: The future of Brian Dussault, the last Alaska defendant be found not guilty of murder by reason of insanity. He is one of the last long-term killers still housed at the state's mental hospital, the Alaska Psychiatric Institute.

Dussault is a schizophrenic who killed his wife in 1984 because, as he explained at the time, her body was invaded by red square crystal beings from outer space. Now 52, he says he's better, is taking his medications, and wants out. While one mental health expert said he could be fine out of custody with the right managed care, most of the experts at API say he's still a danger and could kill again.

Prosecutors want to keep him locked up.

Suddock is supposed to decide.

The trouble started when Suddock informed the lawyers that he had talked to Department of Health and Social Services Commissioner Bill Hogan about the case.

In a pile of court papers filed by both sides, Fayette says Suddock acted un-judgelike when he approached Hogan at an October 2008 judicial conference in Girdwood about the case. Fayette claims Suddock asked the commissioner to help find a way for Dussault to get out of API. Suddock denies it. He says he was merely informing the commissioner that someone from his department needed to be assigned to the case.

Dussault has been at the hospital for 25 years. The issue is who will be responsible for him once he's out on the streets -- if he is let out: The Department of Health and Social Services because he's mentally ill? Or the Department of Corrections because he's a killer? Or can he be left on his own? Monitoring and managing him is expensive -- who will pay?

Dussault's attorney, Avraham Zorea, who has been trying to get his client out of API for years, sums it up like this:

"He's (Suddock) acting like a European judge. He's getting too hands-on. And that's really not the appropriate thing," he said in a telephone interview Friday. "He has been waiting for everyone to agree, and that's his sin, in my point of view."

Zorea also accuses Suddock of having a personal motive: "He started realizing that Brian (Dussault) could be a pet cause for him, that he could make some reputation on it," Zorea said. He agrees Suddock should be taken off the case.

Before his disputed October conversation with the commissioner, Suddock told both sides: "We need to find somebody at the Department (of Health and Social Services) on whom this donkey tail gets pinned."

To his dissatisfaction, he says in a 23-page written response to the recusal request, the lawyers didn't do that. So he tried to.

In general, judges aren't supposed to take actions on a case, or talk to people connected to a case unless the lawyers involved know about it.

"Judge Suddock assumed an attorney's role, and without any prior notice to the parties and on his own initiative, he gathered information from Commissioner Hogan and solicited his participation in the litigation," Fayette wrote in his motion to kick out Suddock.

Suddock disagrees. It was merely administrative, he says. "Impliedly, the statute authorizes the court to alert the Commissioner that the time is ripe for him to delegate his statutory representative. The court's (my) action was statutorily authorized."

"No party has been advantaged or disadvantaged," Suddock wrote.

After the director of probation and parole at the Department of Corrections rejected involvement, Suddock asked Hogan to intercede with Corrections officials. Suddock said he wanted someone higher up to get involved.

While the director's "response may be astute, it may also be the type of small-bore thinking that her more flexible supervisors would override," Suddock wrote.

Fayette says Suddock appears to be helping Dussault get out. Whether he is or not, it looks as if he is and that's unjudicial, he said.

Suddock says he hasn't decided yet how he will rule on Dussault's release, but Zorea says Suddock was giving all indications he was going to let Dussault out until he got judicial cold feet.

In an e-mail to Hogan, Suddock wrote, "It has always seemed to me that a sensible approach would be for (Health and Social Services) to arrange by contract with (Department of Corrections) probation to monitor Dussault, as they do many mentally ill probationers and parolees ..."

TIT FOR TAT

The barbs are traveling both ways in the court filings.

Suddock accuses Fayette of railroading Dussault's release by visiting potential halfway houses and scaring them. A halfway house that had agreed to accept Dussault did, in fact, change its mind after Fayette visited, the court file says.

Suddock also said Fayette undercut the judge's efforts to find a solution to the Dussault dilemma with a "gratuitous countermand of the court's (my) request" with the health commissioner. Fayette told the commissioner not to get involved, according to Suddock.

Suddock argued that he was just doing what a judge should do: Taking "account of a citizen's liberty interest by seeking the best possible release scenario is part and parcel of the judicial role," he wrote.

Zorea said his client is fed up with the court delays. For two years now, he has been waiting to be released from API but delay after delay has kept him locked up, limited to four-hour passes several times a week.

Dussault has been released from API twice in the past as a test of whether he could conform his behavior to probationary requirements -- but he was caught doing cocaine and sent back.

This time, Zorea insists, Dussault is going to be different.

But Zorea won't have a chance to convince the court of that until the judge issue is resolved. Fayette has taken removal of Suddock to the Alaska Court of Appeals and any question of Dussault's release is on hold until they decide. Their decision could take up to a year.