A sexual assault case in which a Dillingham man was initially represented by an attorney who later became a judge and presided over his trial has been sent back to Alaska Superior Court.
In an opinion issued Wednesday, the Alaska Court of Appeals said it was unclear whether the defendant, Tyrone Billie Gamechuk, knew the significance behind the trial judge previously serving as his public defender in the same case.
Gamechuk appealed his attempted first-degree sex assault conviction on several grounds, including the argument that he is entitled to a new trial because of the judge's dual roles in the case.
Superior Court Judge Patricia Douglass was working as an assistant public defender in the Bristol Bay community when Gamechuk was charged in December 2010. Douglass was appointed to represent him, and, according to a July 1 opinion, she met with Gamechuk in jail to discuss his charges and bail. A year later, she was appointed to a Superior Court seat in Dillingham.
The Public Defender's Agency created a list of criminal cases in which Douglass had been the attorney, and the court system used it to "generate recusal notices," the opinion says. But for unknown reasons, a notice was never issued in Gamechuk's case, it says.
The prosecutor in the case noted the potential conflict on the eve of the trial.
"What I'm alerting the court to is, because you used to be a public defender, is that I'm seeing (that on Dec. 29, 2010) discovery went to the public defender, but I don't see your name in any hearings," the unnamed prosecutor said, according to the appeal.
"No, we've already checked for recusals and stuff like that," Judge Douglass replied, according to the record.
Neither Gamechuk nor his attorney said anything during the exchange, the opinion says.
The trial moved forward. The jury convicted Gamechuk of the attempted sex assault charge and acquitted him of two others.
Whether a judge should be disqualified from presiding over a case is governed by state law and the Alaska Code of Judicial Conduct.
The law states judicial officers cannot preside over cases within two years of assignment to the same case. The judicial code of conduct likewise requires judges to disqualify themselves in cases where their impartiality may reasonably be questioned.
The issue has come up a few times in the past, said Marla Greenstein, executive director of the Alaska Commission on Judicial Conduct. She said public defenders, some of whom become judges, handle large caseloads and may not always remember a certain client.
A judge previously determined Douglass' error was harmless because there was no indication she remembered anything about having represented Gamechuk.
Judges have not been penalized for those mistakes, Greenstein said. The issues were dealt with by assigning other judges to cases, she said.
The state concedes the law disqualified Douglass from presiding over Gamechuk's case, and she failed to disclose her disqualification during the court proceeding, or "on the record." However, it argues there was no need for disclosure because "both sides knew of Judge Douglass' prior representation" and decided to waive her removal from the case, the opinion says.
The state's Supreme Court has cautioned that attorneys should not be allowed to take a "gambler's risk" by withholding an objection, then arguing for a new trial if a verdict does not go in their favor. Gamechuk's attorney did not point out the issue before or during the trial.
Appeals judge Marjorie Allard wrote in the opinion the record of Gamechuk's trial is not as clear as the state claims.
Gamechuk has said he was aware of the judge's role as his prior attorney in the case but didn't know about its legal significance until the trial ended, the opinion says. He failed to inform his new attorney not because he was trying to game the system, "but rather because he did not understand that this situation was abnormal …" the opinion says.
As a result, the case has been sent back to Superior Court, which has been directed to hold an evidentiary hearing.
Anchorage District Attorney Clint Campion, who oversees the Dillingham district attorney's office, said challenges have arisen due to Douglass' appointment as presiding judge in the relatively small jurisdiction, including delays in hearings.
"There have needed to be several judges from outside Dillingham come in and handle cases where Judge Douglass had conflicts," Campion said. "That has certainly created challenges for the court system and the parties involved. There are travel, schedule and logistical issues."
That does not reflect negatively on Douglass, he added.
"It's just the reality of having someone who's practiced in a small community," Campion said. "It can be difficult to do what she had to do as a judge because of those conflicts and relationships."
Greenstein said conflicts like the one in Gamechuk's case are more likely the result of public defenders' large caseloads than small-town dynamics. The opinion notes the Public Defender Agency in Dillingham is a small office with a only a few attorneys.