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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Curda (6/21/2002) sp-5587

In Re Curda (6/21/2002) sp-5587

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


In the matter of the proceedings        )
pursuant to AS 22.30.011(b) in          )    Supreme Court No. S-
9907
relation to:                       )
                              )    Alaska Commission on
DALE O. CURDA,                )    Judicial Conduct No. 98-013
                              )
Judge of the Superior Court,       )
Fourth Judicial District, at            )    O P I N I O N
Bethel, Alaska,                    )
                              )
               Petitioner.          )     [No. 5587  -  June  21,
2002]
                              )



          Petition   from  the  Alaska  Commission   on
          Judicial   Conduct,   Jeffrey   M.   Feldman,
          Chairman.

          Appearances:   Jonathon A.  Katcher,  Pope  &
          Katcher,   Anchorage,   Brennan   P.    Cain,
          Middleton & Timme, Anchorage, for Petitioner.
          Matthew  D.  Jamin, Jamin, Ebell,  Schmitt  &
          Mason,  Kodiak, Special Counsel to the Alaska
          Judicial Conduct Commission.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          MATTHEWS, Justice.


          I.W.,   subpoenaed  to  testify  in  Wilfred   Raphaels

criminal trial in Bethel, arrived in court intoxicated on the day

she  was  scheduled to give testimony.  In an ex  parte  meeting,

Assistant  District  Attorney  Joe  Wrona  expressed  concern  to

Superior  Court Judge Dale Curda that I.W. would either  fail  to

appear  a  second time to testify or would not be  able  to  stay

sober.  After holding a brief hearing with Wrona and I.W.,  Judge

Curda   imprisoned  I.W.  for  contempt.   The  Judicial  Conduct

Commission  has  recommended to this court that  Judge  Curda  be

reprimanded   for  ethical  misconduct  based  on  legal   errors

committed in that contempt proceeding.

          Judge  Curda committed legal errors that violated  some

of  I.W.s  and  Raphaels rights.  But because Judge Curdas  legal

errors  were neither willful nor part of a pattern of misconduct,

we  conclude that they did not constitute ethical misconduct  and

therefore that he should not receive any sanction.

I.   FACTS AND PROCEEDINGS

          I.W.  was subpoenaed and scheduled to testify in Bethel

on  Tuesday,  September 5, 1995, at the trial of Wilfred  Raphael

her  former domestic companion who had been indicted for a series

of  serious  attacks upon her.  Assistant District  Attorney  Joe

Wrona  arranged for I.W. to be flown in from Mountain Village  on

Monday  and to stay in Pacifica House, a placement that  did  not

allow  alcohol  on the premises.  I.W.s two children  accompanied

her  to  Bethel.  Wrona instructed I.W. to remain sober,  telling

her that she would get in trouble if she did not.

          On  Tuesday  morning,  Raphaels  lawyer,  James  Gould,

notified  the court by telephone from Anchorage that he  was  too

sick  to  travel  to  Bethel that day.    Judge  Curda,  who  was

presiding over Raphaels trial, continued the trial until the next

day.

          Wrona  then  learned that I.W. had  been  evicted  from

Pacifica  House  for drinking and partying in her  room.   Wronas

supervisor  instructed him to tell Judge Curda about his  witness

problem.   When Wrona arrived at the court, he encountered  I.W.,

still intoxicated, pulling up in a taxi with her children.  After

talking briefly with I.W., Wrona went into the courtroom to  meet

with Judge Curda; I.W. remained behind in the foyer.

          After Judge Curda directed that the proceedings be  put

on  the  record,  Wrona  explained his problem  to  Judge  Curda,

stating  that he felt he could not control I.W.  Wrona  presented

Judge Curda with three potential options:  (1) confining I.W. for

contempt; (2) sending I.W. home and bringing her back when  trial

resumed;  or (3) keeping I.W. in Bethel if the court could  shape

some other sort of remedy.

          As  Wrona  had  told him that I.W. was  a  recalcitrant

witness  and  that  she  had threatened not  to  testify  if  her

testimony  was not taken that day, Judge Curda decided that  they

could not send I.W. home.  Judge Curda also found that I.W. could

not  safely  remain  in  Bethel outside of custody,  because  her

children  lacked  an  appropriate  placement  there.    He   thus

concluded  that  I.W. would likely have to be confined,  and  her

children  taken into custody by the Division of Family and  Youth

Services (DFYS).   Although he stated Ive never found that . .  .

me talking to someone, especially when theyre under the influence

is  going  to make any difference whatsoever, Judge Curda  called

I.W. into the courtroom to question her.

          Judge  Curda  asked I.W. if she had been subpoenaed  to

testify; if she had been evicted from Pacifica House; if she  had

been  drinking;  and  if she was currently under  the  influence.

I.W.  responded that she was under subpoena; that  she  had  left

not  been evicted from  Pacifica House; that she had perhaps been

drinking; but that she was not currently intoxicated.  I.W.  then

admitted,  however,  that  she  had  been  intoxicated   earlier.

Meanwhile, Judge Curda concluded that I.W. was too intoxicated to

drive or to testify in a criminal trial.  He asked I.W. if it was

too hard for her to stay sober while in Bethel and what the court

could do to help her remain sober.  I.W. responded that she could

stay sober.  Judge Curda responded:  Its not . . . just about you

being sober for this case, I mean, you need to be sober for  your

kids  to  keep your kids safe whatever happens with the case  and

also  to keep yourself safe.  I.W. in turn stated that she had  a

room  at the Kusko Inn; however, Judge Curda responded that  that

would  not work as it was just not a good place.  When I.W.  then

proposed  staying at the Womens Shelter, Wrona reminded her  that

she  would  have  to remain sober there and that  if  theres  one

little  problem, youre going to get thrown in jail and your  kids

will  get  taken away from you.  When Wrona continued, Were  here

today  trying  to  think of ways to not  do  that  to  you,  I.W.

responded  that Wrona had lied to her by telling  her  that  they

would  be  able to get her testimony in the trial over with  that

day.

          Following  a confused series of exchanges, Judge  Curda

told  I.W. that as she hadnt been able to remain sober  in  town,

even  with her children accompanying her, he was holding  her  in

contempt  and remanding her.  This, he said, was the only  viable

solution  for securing her protection, her childrens  protection,

and her testimony.  At the conclusion of these proceedings, Judge

Curda stated that when I.W. gave her testimony, then well revisit

the  case  and presumably let her, shell be able to be  released.

Judge  Curda then arranged for a social worker from  DFYS  to  be

called to take custody of the children.

          Because  of  Raphaels  defense attorneys  illness,  the

trial  ultimately did not resume until Thursday.  I.W.  testified

on Friday morning, but because Wrona indicated that he might need

her  as  a  rebuttal witness, she was not released  until  Friday

afternoon.

          Raphael  was  ultimately convicted, and his  conviction

was upheld by the court of appeals despite a concurrence by Judge

Mannheimer  that was strongly critical of Judge Curdas  treatment

of I.W.1  This court, in a divided opinion, reversed the judgment

of  the  court of appeals, concluding that Raphaels right  to  be

present  at  every stage of the trial and his due process  rights

had been violated.2

          The    Judicial    Conduct   Commission    subsequently

investigated  Judge Curdas actions and held a formal disciplinary

hearing.   Five  members of the Commission concluded  that  Judge

Curda  had  violated provisions of the Judicial Code  during  the

          I.W. contempt hearing; three members concluded that he had not.

Only  three  of  the Commissioners, however, felt that  a  public

reprimand  was  appropriate.  Two felt a  private  reprimand  was

appropriate,  and  three felt that if Judge Curdas  actions  were

found  to  violate the Code, the appropriate level of  discipline

would  be, at most, a private reprimand.  The Commission filed  a

recommendation  for  a  private reprimand before  this  court,  a

recommendation which Judge Curda opposes in his petition.

II.  DISCUSSION

     A.   Standard of Review

          Both  Judge  Curda  and  the Special  Counsel  for  the

Commission agree that this court should conduct a de novo  review

of the alleged judicial misconduct and the recommended sanction.3

In  doing  so,  we  recognize that judicial  misconduct  must  be

established by clear and convincing evidence.4

     B.   Judge  Curda  Committed Legal Errors  in  the  Contempt
          Proceedings at Issue.
          Judge  Curda  argues that he should not be  disciplined

for  this  single  incident in which he made unintentional  legal

errors.  Special Counsel, by contrast, contends that Judge Curdas

legal  errors  were  sanctionable because they  denied  I.W.  and

Raphael  fundamental  procedural  rights.   Such  errors,  argues

Special  Counsel, constituted a violation of Judge Curdas ethical

duties even if they were unintentional.5

          We conclude that Judge Curda did violate I.W.s right to

notice  and a meaningful hearing, as well as Raphaels due process

rights and right to be present at every stage of his trial.

          The Alaska rules governing contempt proceedings require
that  I.W.  be given a meaningful hearing regarding  her  alleged
contempt  and  what  was  to be done  about  it.   Unstated,  but
necessary,  procedures  governing the  detention  of  a  material
witness  also  require a meaningful hearing.6  Judge  Curda  gave
I.W.  a  hearing  of  sorts before holding her  in  contempt  and
ordering her remanded; however, Judge Curda gave I.W. no  advance
notice that she stood accused of contempt, and his questioning of
I.W.  in  her  intoxicated state did not allow her  a  meaningful
opportunity  to  be heard.  During his questioning,  Judge  Curda
determined that I.W. was too intoxicated to testify.  If she  was
too  intoxicated  to testify, it follows that she  was  also  too
          intoxicated to participate meaningfully in a hearing concerning
the  sanction  for her contempt.  While this does not  mean  that
Judge Curda had to immediately release I.W., it does mean that he
should have given her notice of the purpose of the proceeding and
brought  her back before the court as soon as she was  sober,  so
that, at least, she could have been heard on the question of  the
continuing need for her confinement.

          As  to Raphael, this court has previously held that the

ex  parte  hearing  in this case violated Raphaels  right  to  be

present  at  every  stage of his trial   a  right  guaranteed  by

Criminal  Rule  38(a).7   In addition, we  held  that  it  was  a

violation of Raphaels due process rights for Judge Curda to allow

the  impression that I.W.s freedom and continued custody  of  her

children  was  contingent upon the nature of her testimony.8   We

continue to adhere to these views.

     C.   Judge Curdas Legal Errors Were Not Ethical Violations.
          
          In  order to help us determine the relationship between

legal  error  and ethical violation, we look to the decisions  of

other state courts.  The California Supreme Court has decided, in

the  interests of safeguarding the independence of the judiciary,

that  mere  legal error is insufficient to support a  finding  of

ethical  misconduct.9  However, that court went on to  hold  that

legal error may constitute ethical misconduct when it clearly and

convincingly  reflects  bad  faith,  bias,  abuse  of  authority,

disregard  for fundamental rights, intentional disregard  of  the

law, or any purpose other than the faithful discharge of judicial

duty.10   Commentators have expressed similar  views,  concluding

that  legal  error  may amount to judicial misconduct  if  it  is

repeated,  motivated by bad faith, accompanied by intemperate  or

abusive conduct, or irremediable by appeal.11  Our review of case

law  from  other jurisdictions indicates that courts  most  often

find   judicial  misconduct  where  judges  have  repeatedly   or

willfully  denied individuals their rights.  Indeed, commentators

have  stated that most cases of judicial misconduct of this  type

involve  both  repeated and knowing violations  of  rights,  thus

evidencing a pattern of misconduct.12

          In  Matter  of  Scott, the Massachusetts Supreme  Court

noted the difficulty in distinguishing between mere errors . .  .

on the one side, which would not call for discipline, and, on the

other  side,  what  we  have  called  patterns  of  disregard  or

indifference,  which do warrant discipline.13  The court  further

stated that it was willing to consider disciplining a judge where

it  [had been] established by credible evidence that [the] judge,

over  a  protracted period of time, [had] followed  a  course  of

judicial conduct which [was] in utter disregard of the law and of

established  rules of practice in continued violation  of  orders

pertaining  thereto  .  .  .  .14  The  court  there  decided  to

discipline  Judge  Scott  for her pattern  of  disregard  of,  or

indifference  to, fact or law, largely in criminal  and  juvenile

cases,15 but in doing so warned that [t]o invoke the disciplinary

power of this court against a judge as a substitute for appellate

review  would  establish a practice dangerous to the independence

of   the   judiciary  and  equally  dangerous  to   the   publics

constitutional right to an independent judiciary.16

          Several other cases support distinguishing between mere

legal error and patterns of repeated error.  In Matter of Reeves,

the  New  York Court of Appeals upheld the decision of the  State

Commission on Judicial Conduct to discipline Judge Reeves for his

repeated  pattern  of  failing  to  advise  litigants  of   their

constitutional and statutory rights.17  That court noted that the

purpose  of  judicial sanction was not to punish the  judge,  but

instead to safeguard the bench.18  The court held that the errors

[committed  by Judge Reeves] were fundamental and the pattern  of

repeating them, coupled with an unwillingness to recognize  their

impropriety, indicate[d] that [Judge Reeves] pose[d] a threat  to

the  proper  administration of justice.19  Similarly,  in  In  re

Inquiry  Concerning  Perry, the Florida  Supreme  Court  publicly

reprimanded a judge for repetitively abusing his contempt power.20

There,  Judge Perry had intemperately incarcerated six defendants

for  indirect  contempt without following appropriate  procedures

          for such proceedings, and had set unreasonably high bail for two

defendants  to  punish  their refusal to enter  immediate  guilty

pleas.21

          The  Supreme  Court of Maine used a slightly  different

standard  to determine judicial misconduct in Matter of Benoit.22

While  consistent  with the above cases in its  recognition  that

[e]very  trial judge will from time to time commit legal  errors,

and that judicial discipline would be in order in almost none  of

those cases,23 the Maine Supreme Court held that judicial conduct

constitutes  a  violation of [judicial canons]  if  a  reasonably

prudent and competent judge would consider that conduct obviously

and seriously wrong in all the circumstances.24  In that case the

court  censured  and  suspended Judge Benoit  for  a  pattern  of

obviously  and  seriously  wrong  practices.25   These  practices

included unlawfully imposing bail on an indigent defendant, where

such  imposition resulted in the defendants imprisonment for over

a  month for a civil traffic infraction; unlawfully imprisoning a

second defendant for failing to pay a civil fine; and detaining a

juvenile defendant for six weeks without taking any evidence  and

without affording the juvenile his right to counsel.26

          Judge  Curdas legal errors here were not comparable  to

those  in the above cases.  While the judges in the above matters

were disciplined for patterns of repeated misconduct, Judge Curda

is  charged  with legal errors arising out of a single  instance.

In  addition, Judge Curda showed none of the willfulness  present

in  other  cases  in  which judges were found to  have  committed

ethical violations.

          In one case of willful misconduct  Matter of Yengo  the

New  Jersey  Supreme Court removed Judge Yengo for  his  repeated

failure to advise defendants of their constitutional rights,  for

imprisoning defendants either without a proper hearing  or  based

upon inadmissible evidence, for using bail as an arbitrary weapon

to   harass   defendants,  and  for  disregarding   and   mocking

controlling  legal precedent with which he disagreed.27   Indeed,

          the court found that Judge Yengo seemed to relish his judicial

power  to imprison others than defendants,28 and that he seem[ed]

unable  to  understand the relationship between justice  and  the

defendant.29  Similarly, in Matter of Ross, the Supreme Court  of

Maine suspended Judge Ross for willfully disregarding the law  in

intemperately  sentencing  a  defendant  to  jail  for  a   civil

violation and for imprisoning another party without conducting  a

hearing.30

          In   contrast  to  the  examples  above,  Judge  Curdas

commission of legal errors was not willful.  Indeed, of the cases

reviewed by this court, the one that most closely resembles Judge

Curdas  is Matter of Thomson,31 decided by the New Jersey Supreme

Court.   In Matter of Thomson, a municipal court judge  jailed  a

defendant  on  charges  of shoplifting and possession  of  stolen

property without individually advising the defendant of his right

to  counsel,32  placing either the defendant  or  the  testifying

police  officer  under oath, or explaining to the  defendant  the

reasons  for  his sentence as required by New Jersey  law.33   As

explanation  for his legal errors, the judge stated that  he  had

never faced such a situation before.  The judge claimed that  the

defendant  had  been virtually uncontrollable, blurting  out  the

charge  against him, admitting his guilt, and then  relaying  the

details  of  the incident.  The judge explained that he  believed

the defendant would not return to court when instructed to do so,

and that he would represent a danger to himself and others if not

taken  into custody.34  Within hours of sentencing the defendant,

the  judge  took steps to alert the probation department  to  the

defendants apparent problems; however, by that time the defendant

had already hanged himself.35

          The  New Jersey Supreme Court concluded that the  judge

exercised   poor  judicial  judgment  and  committed  a   serious

transgression.  The court emphasized that [d]espite the  best  of

motives  a  judge  cannot  try to  decide  what  is  best  for  a

defendant,  as  distinct from what he knows  is  constitutionally

          required.  To do so is to depart from his or her role as a judge.36

The  court  went  on, however, to note that the judges  incorrect

rulings  had  been appealable, and that incorrect  rulings   even

with  respect  to  a defendants constitutional  rights   normally

should  not  subject a judge to charges of judicial misconduct.37

The  court  also  stated that [t]here were,  and  still  are,  no

guidelines  in existence for the type of situation [involving  an

apparently  unstable  defendant]  in  which  [the  judge]   found

himself,  and  unanimously concluded   in  light  of  the  unique

circumstances  present  in this case, the difficult  position  in

which  [the  judge] found himself, the time pressure under  which

[the  judge] was required to act, and [the fact] that this matter

represent[ed] a single unfortunate instance in [the judges]  long

and otherwise unblemished professional record  that the judge had

not committed ethical misconduct.38

          Here, with regard to his treatment of I.W., Judge Curda

like  Judge  Thomson   committed  a  single  deprivation  of   an

individuals  constitutional  rights,  motivated  by  good   faith

concerns   for   orderly  trial  proceedings  and  the   affected

individuals  well-being, in the face of a unique situation39  for

which  there  was no available legal template.40  As Judge  Curda

argued,  this  court  is  aware of  no  contested  American  case

approv[ing] the disciplining of a judge for a single incident  of

good faith legal error when the judge acted without animus.

          As the cases discussed above recognize, all judges make

legal  errors.   Sometimes this is because the  applicable  legal

principles  are unclear.  Other times the principles  are  clear,

but  whether  they apply to a particular situation  may  not  be.

Whether  a judge has made a legal error is frequently a  question

on  which  disinterested, legally trained people  can  reasonably

disagree.  And whether legal error has been committed is always a

question  that  is  determined after  the  fact,  free  from  the

exigencies  present when the particular decision in question  was

made.

          Further, judges must be able to rule in accordance with

the  law which they believe applies to the case before them, free

from extraneous considerations of punishment or reward.  This  is

the  central  value  of  judicial independence.   That  value  is

threatened when a judge confronted with a choice of how  to  rule

and  judges are confronted with scores of such choices every  day

must  ask  not  which  is the best choice  under  the  law  as  I

understand it, but which is the choice least likely to result  in

judicial discipline?

          For  these  reasons,  we agree with  those  authorities

discussed  above  that  hold that legal  error  that  is  neither

willful  nor part of a repeated pattern of misconduct is  not  an

appropriate subject for discipline.

          In light of this standard we conclude that Judge Curdas

treatment  of  I.W. is not properly subject to  ethical  sanction

because  the  errors he made were neither repeated  nor  willful.

The  same  conclusion applies to Judge Curdas denial of  Raphaels

procedural rights.  We note that prior to this courts decision in

Raphael  II, the court of appeals unanimously concluded that  the

ex  parte  proceedings  did  not violate  Raphaels  right  to  be

present.41  The fact that reasonable judges could and did  differ

over  whether  the ex parte proceedings violated Raphaels  rights

underscores the difficulty and uncertainty of the situation  with

which Judge Curda was presented.

III. CONCLUSION

          Because  Judge  Curdas  legal errors  as  to  I.W.  and

Raphael  were  not  willful nor part of  a  pattern  of  judicial

misconduct, we conclude that they were not ethical violations  of

the  Code of Judicial Conduct.  Therefore, Judge Curda should not

be reprimanded.

_______________________________
     1     Raphael  v. State (Raphael I), 1998 WL 191159  (Alaska
App.  1998), reversed by Raphael v. State (Raphael II), 994  P.2d
1004 (Alaska 2000).

     2     Raphael  v. State (Raphael II), 994 P.2d 1004  (Alaska
2000).

     3    In re Johnstone, 2 P.3d 1226, 1234 (Alaska 2000); In re
Inquiry  Concerning A Judge (Judge I), 762 P.2d  1292,  1296  n.4
(Alaska 1988).

     4     Johnstone, 2 P.3d at 1234; In re Hanson, 532 P.2d 303,
308 (Alaska 1975).

     5     Special  Counsels  case is based  primarily  on  Canon
3(A)(4)  of  the Code of Judicial Conduct, which  bars  ex  parte
proceedings except as authorized by law, and requires a judge  to
give  each person legally interested in a proceeding a full right
to  be  heard  according  to law.  In addition,  Judge  Curda  is
charged  with  violating  Canons 3(A)(1),  2(A),  and  1.   Canon
3(A)(1)  requires a judge to be faithful to the law and  maintain
professional competence in it [as well as to be] . .  .  unswayed
by partisan interests, public clamor, or fear of criticism; Canon
2(A) requires a judge to respect and comply with the law and .  .
.  conduct himself at all times in a manner that promotes  public
confidence  in  the integrity and impartiality of the  judiciary;
and  Canon  1  requires  a  judge to  uphold  the  integrity  and
independence of the judiciary.

     6     The  proceedings that resulted in I.W.s  incarceration
could be characterized as direct contempt proceedings governed by
Civil Rule 90(a), indirect contempt proceedings governed by Civil
Rule  90(b), or material witness detention proceedings  effecting
the  express  and  implied  principles  and  requirements  of  AS
12.30.050.   The  proceeding  that  is  least  protective  of  an
individuals rights is that for direct contempt.  See Raphael  II,
994  P.2d at 1013, n.39.  But even in direct contempt proceedings
a  contemnor is entitled to a meaningful opportunity to be  heard
concerning  the  need for the sanction.  In the other  two  cases
indirect  contempt and material witness detention  the individual
must be given notice of the character of the proceedings and  the
specific  reasons why they are being brought, in  addition  to  a
meaningful opportunity to be heard.

     7    Raphael II, 994 P.2d at 1012-13.

     8    Id. at 1010.

     9     Oberholzer v. Commn on Judicial Performance, 975  P.2d
663, 680 (Cal. 1999).

     10    Id.

     11     Jeffrey M. Shaman et al., Judicial Conduct and Ethics
(3d ed. 2000)  2.02, at 37-38.

     12    Id. at  2.10, at 55.

     13    386 N.E.2d 218, 220 (Mass. 1979).

     14    Id. at 220-21.

     15    Id. at 220.

     16    Id.

     17    469 N.E.2d 1321, 1323 (N.Y. 1984).

     18    Id.

     19    Id.

     20    641 So. 2d 366 (Fla. 1994).

     21    Id. at 367-68.

     22    487 A.2d 1158 (Me. 1985).

     23    Id. at 1162.

     24    Id. at 1163.

     25    Id. at 1164.

     26    Id. at 1164-69.

     27    371 A.2d 41, 49-51 (N.J. 1977).

     28    Id. at 53.

     29    Id. at 56.

     30    428 A.2d 858, 862-63 (Me. 1981).

     31    494 A.2d 1022 (N.J. 1985).

     32     The  judge read out a general statement of defendants
rights  at  the  beginning of court, as  was  apparently  general
practice  in  many municipal courts; perhaps because  the  judges
regular  court clerk was not present, the judge was unaware  that
the  defendant was not present when the statement of  rights  was
read.  Id. at 1023-24, 1025 n.2, 1026 n.3.

     33    Id. at 1025-26.

     34    Id. at 1026-27.

     35    Id. at 1025.

     36    Id. at 1027.

     37    Id.

     38    Id. at 1027-28.

     39    Judge Curda testified that I.W. was the first person he
had ever incarcerated for contempt.

     40     Judge Richard Savell, one of Alaskas most experienced
superior  court  judges, testified that  the  law  involving  the
treatment  of  intoxicated witnesses  was  murky.   Our  research
confirms  this,  for there are no Alaska cases  on  the  subject,
there is little authority elsewhere, and that which we have found
is not consistent.  Commonwealth v. Clark, 13 Pa. Commw. 439 (Pa.
Commw.  Ct.  1893)  (quoted in Commonwealth ex  rel.  Falwell  v.
DiGiacinto, 471 A.2d 533 (Pa. Super. Ct. 1984)), indicates that a
drunken witness is guilty of contempt.  But in Cameron v.  State,
650  A.2d  1376 (Md. 1994), the court stated:  We have  found  no
cases,  nor are any cited by the parties, in which the court  has
found a defendant, who is admittedly an alcoholic, in contempt of
court  merely for appearing in court in an intoxicated condition.
Id.  at 1380.  See also Joan Teshima, Intoxication of Witness  or
Attorney  as  Contempt of Court, 46 A.L.R. 4th  238  (1986),  for
discussion of the various holdings that exist on this issue.

     41    See Raphael I, 1998 WL 191159 at *5.