The Necessity of Surveying Alaska Natives in the Selection of Judges

Update and Reply – The Necessity of Surveying Alaska Natives in the Selection of Judges

submitted by David Ignell

Dec. 24, 2020: A month ago, KINYradio.com published a copy of my November 19 letter to Governor Dunleavy requesting that he refrain from filling the newly created vacancy on the Court of Appeals until the Alaska Judicial Council (“AJC”) had corrected the flaws in their list of nominees.

I recently learned that KINY later published an opinion piece written by Ms. Susanne DiPietro, the Executive Director of the AJC, defending their practices. I would like to provide KINYradio.com readers with an important update on this crucial matter and then reply to a separate, but important issue that Ms. DiPietro has raised.

On December 17, Gov. Dunleavy received a letter from Mr. Richard Peterson, President of the Central Council of Tlingit and Haida Indian Tribes of Alaska (“CCTHITA”). On behalf of the 32,000 members of CCTHITA, Mr. Peterson joined in with my request. The last three paragraphs of Mr. Peterson’s letter state:

“To best fulfill its duty, the AJC should solicit our opinion and those of the other federally recognized tribes before making its judicial determinations. Currently, there is no data from which the Council members can determine the extent to which applicants have supported the constitutional rights of Alaska Natives and put an end to Racism’s Frontier. Similarly, there is no data by which the AJC can be held accountable for advancing applicants that receive low ratings from the tribes.

The bottom line is that we don’t have a voice when the racial disparity in the prisons demonstrates that we are an important stakeholder that must be engaged to achieve equal protection under the law. Without a voice, our tribal citizens become easy targets in the justice system.

It’s very troubling to me that when these concerns were brought before the AJC at a recent public hearing attended by Mr. Ignell and members of CCTHITA, they were not given a full opportunity to be heard and the AJC proceeded to nominate the 3 individuals that are presently before you. As this list is the product of discriminatory practices, I urge you to stay your appointment until the AJC has corrected this grave error. I anticipate that the number of tribes who support our request will grow over time.”

Ms. DiPietro seems to agree with Mr. Peterson. In her KINYradio.com opinion she wrote “Tribes and Alaska Native organizations are important stakeholders in the judicial selection process, and the Council values their ongoing involvement.” If Ms. DiPietro truly values the opinion of 32,000 Alaska Natives, a number that Mr. Peterson expects to grow, shouldn’t the AJC voluntarily withdraw the list of nominees sent to Gov. Dunleavy and correct those deficiencies?

Ms. DiPietro’s previous excuse, that the AJC doesn’t need to survey Alaska Natives because the AJC represents people from all walks of life, holds no water. Ms. DiPietro admits the AJC is represented by attorneys and law enforcement, yet the AJC still sends out surveys to hundreds of attorneys and law enforcement officers and documents their responses. Why then does Ms. DiPietro want to exclude the 200 tribes from her survey? Why is she unwilling to include race on the surveys the AJC sends out to attorneys? Is the AJC afraid of what the responses of Alaska Natives will reveal or is the exclusion based on bias?

My letter to the Governor didn’t address a separate issue, the details behind the wrongful conviction of Thomas Jack, Jr., an Alaska Native from Hoonah. However, in a subtle attempt to discredit my voice, Ms. DiPietro has raised the volatile nature of the charges against Mr. Jack – sexual assault of a minor. As one of the AJC’s former members, a woman Ms. DiPietro knows very well, wrote four years ago, “fear and revulsion stalks the legislative halls when the word ‘sex’ or ‘sex offender’ is mentioned.”

Ms. DiPietro’s attempt to unleash that fear and revulsion in contesting my efforts doesn’t speak well for the director of an organization that is supposed to nominate judges who will apply the law in difficult or unpopular

cases. Is Ms. DiPietro’s strategy to manipulate public sentiment and passion against my request to the Governor yet another indication that the AJC is really all about politics and operates as a powerful political machine? How can the AJC not be? Politics always accompanies power, and the AJC has a ton of power.

Since Ms. DiPietro has opened the door to Mr. Jack’s charges, I’ll briefly address some of the constitutional violations that AJC’s judges approved of in his case. First, the Juneau District Attorney’s Office (“DA”) withheld from Mr. Jack’s attorney and twice suppressed from the grand jury a written report by a female Alaska Native schoolteacher, a mandatory reporter by law, that Mr. Jack’s accuser had approached her voluntarily and admitted that nothing happened between her and Mr. Jack. (A redacted copy of that suppressed report can be found at https://poweredbyjustice.files.wordpress.com/2020/11/natalie-hinchman-09-2-24-and-kemp-memo-2010-redacted.pdf). When the DA finally disclosed this critical exonerating evidence 11 months later, Mr. Philip Pallenberg, an AJC nominee to the Alaska Supreme Court in 2016 and the Alaska Court of Appeals in 2018, denied the request of Mr. Jack’s attorney to read the contents of the teacher’s report into the record.

Another constitutional violation, an unfair trial, occurred when Mr. Pallenberg forced a completely unprepared State attorney to represent Mr. Jack in his second trial. More constitutional violations, the denial of an impartial jury, occurred when all potential Alaska Native jurors were excused from both trials, primarily by Mr. Pallenberg. Does Mr. Pallenberg represent Ms. DiPietro’s ideals of a judge committed to fairness and impartial juries? The family and supporters of Mr. Jack strongly disagree. Ms. DiPietro’s views are exactly the reason why the AJC is way past due in obtaining input from the Tribes.

The appellate court judges who knew that Mr. Pallenberg might one day join them backed their colleague up completely. Judges who appear more beholden to the AJC than the people completely shredded the Alaska Constitution and its protection of Alaska Natives like Mr. Jack. How could eight appellate judges including Mr. Bolger, each supposedly independent and sworn to uphold the Constitution, not have a problem with what the State prosecution and Mr. Pallenberg did to Mr. Jack? Politics is the frontrunning answer.

When it comes to selecting appellate court judges, the Alaska Bar Association (“ABA”) is the chief political power at the table. Only their members are surveyed and the mathematical scale of their responses documented for public review. The four ABA members on the AJC always have a majority and when their own political agendas are in alignment, no one can stop them. The politics of four unelected people replaces the will of a few hundred thousand voters. Judges interested in promotion know who to follow.

The dilution of the ABA’s monopoly in determining appellate court positions is long overdue. Ms. DiPietro has advanced no valid reason why the AJC surveys should not identify the race of the attorney respondents nor why the 231 tribes should be treated differently than the hundreds of attorneys who are asked to respond to surveys.

When the responses of the Alaska Native attorneys and tribes are included in the reported data, perhaps the AJC and its judges will start becoming more accountable to tribal members, knowing they have a voice. Perhaps Alaska Natives will begin receiving equal protection under the law. Perhaps the huge disparity in prison statistics will begin to subside and not be such an embarrassment to our state.

Dear Ms. DiPietro: Please do the right thing here and withdraw your list of nominees to Gov. Dunleavy. Allow the Tribes to be heard and then nominate a judge committed to uphold the Alaska Constitution and restore justice to an innocent Alaska Native man who was never tried by an impartial jury, but has spent over ten years in jail and has a mountain of evidence in his favor showing he was the only victim in the case.

David Ignell

Forensic Journalist, www.poweredbyjustice.com

Public Advocacy and Justice for All Alaskans