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Crawford v. State (9/8/2017) ap-2566

Crawford v. State (9/8/2017) ap-2566

                                                                          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@ akcourts.us  



                           IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                               



KEANE-ALEXANDER  CRAWFORD,  

                                                                                                                                       

                                                                                                Court of Appeals No. A-10855  

                                                  Appellant,                                                                                          

                                                                                            Trial Court No. 3AN-08-13715 CR  



                                      v.  

                                                                                                            O  P  I  N  I  O  N  

                                                                                                                                        

STATE  OF  ALASKA,  



                                                  Appellee.                                      No. 2566 - September 8, 2017  



                         Appeal   from  the   Superior   Court,  Third  Judicial   District,  

                                                                                                                          

                         Anchorage,  Eric  A.  Aarseth,  Patrick  J.  McKay,  and Jack W.  

                                                                                                                                     

                         Smith, Judges.  

                                       



                         Appearances:  Keane-Alexander Crawford, in propria persona,  

                                                                                                                           

                         Seward, for the  Appellant.   Andrew Steiner, Attorney at Law,  

                                                                                                                                  

                         Bend,  Oregon,  appearing at  the  Court's  request  to  argue  the  

                                                                                                                                     

                         Appellant's position.   Diane L. Wendlandt, Assistant Attorney  

                                                                                                                           

                         General, Office of Criminal Appeals, Anchorage, and Craig W.  

                                                                                                                                     

                         Richards, Attorney General, Juneau, for the Appellee.  Douglas  

                                                                                                                            

                         O.  Moody,  Assistant  Public  Defender,  and  Quinlan  Steiner,  

                                                                                                                            

                         Public  Defender,  Anchorage,  appearing  for  amicus  curiae  

                                                                                                                              

                         Alaska  Public  Defender  Agency,  aligned  with  the  Appellee.  

                                                                                                                                            

                         Chad  Holt,  Deputy  Public  Advocate,  Anchorage  (the  brief),  

                                                                                                                              

                         Margaret McWilliams, Assistant Public Advocate, Juneau (oral  

                                                                                                                                  

                         argument),  and  Richard  Allen,  Public  Advocate,  Anchorage,  

                                                                                                                      

                         appearing for amicus curiae Office of Public Advocacy, aligned  

                                                                                                                              

                         with the Appellee.  

                                                            


----------------------- Page 2-----------------------

                                    Before:   Mannheimer, Chief Judge, Allard, Judge, and Suddock,                                                                           

                                                                                            *  

                                    Superior Court Judge.                                      



                                                    

                                    Judge MANNHEIMER.  



                                    If a person is charged with a crime by the State of Alaska, and if that person                                                                                                    



is unable to afford a private defense attorney, that person is entitled to the services of a                                                                                                                                        



defense attorney at public expense under the auspices of either the Public Defender                                                                                                                          



                                                                                                                  1  

Agency or the Office of Public Advocacy.                                                                             



                                    The  pertinent  statute,  AS  18.85.100(a),  actually  declares  that  indigent  

                                                                                                                                                                                                                 



criminal defendants are entitled to two types of services at public expense:  (1) "to be  

                                                                                                                                                                                                                                



represented  ... by an attorney to the same extent as a person retaining an attorney is  

                                                                                                                                                                                                                                  



entitled",  and  (2)  "to  be  provided  with  the  necessary  services  and  facilities  of  this  

                                                                                                                                                                                                                             



representation, including investigation and other preparation."  

                                                                                                                                                                     



                                    Thus, when a criminal defendant receives the services of a court-appointed  

                                                                                                                                                                                            



attorney through either the Public Defender Agency or the Office of Public Advocacy,  

                                                                                                                                                                                                           



the defendant is entitled to have the agency provide the necessary incidents of that legal  

                                                                                                                                                                                                                           



representation - for example, to pay for any necessary clerical support, investigative  

                                                                                                                                                                                                      



services, and expert evaluations and testimony.  

                                                                                                                                



                                    The defendant in this case, Keane-Alexander Crawford, was charged with  

                                                                                                                                                                                                                            



murder for shooting and killing his sister's fiancé, Anthony Brown, following a physical  

                                                                                                                                                                                                                



altercation  between  the  two  men.                                                               Crawford  qualified  for  representation  at  public  

                                                                                                                                                                                                                      



expense, but he waived his right to counsel and chose to represent himself.  (There were  

                                                                                                                                                                                                                          



         *        Sitting   by   assignment   made   pursuant   to    Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                                                    



         1        See   AS 18.85.110(d) (the statute authorizing appointment of the Public Defender                                                                                                            



Agency) and AS 44.21.410(a)(5) (the statute authorizing the appointment of the Office of                                                                                                                                         

Public Advocacy in cases where the Public Defender Agency has a conflict).                                                                                                                        



                                                                                                              - 2 -                                                                                                         2566
  


----------------------- Page 3-----------------------

                                                                                                             

various times during the trial court proceedings when Crawford received court-appointed  



                                                                                                                                

"standby counsel" to assist him, but Crawford remained in control of the litigation of his  



           

case.)  



                                                                                                                      

                    At various times during the pre-trial proceedings in this case,  Crawford  



                                                                                                                           

asked the  superior  court to supply him with public funds to hire a number of expert  



                                                                                                                      

witnesses.        In one instance (a request to hire  a  DNA  testing laboratory),  Crawford  



                                                                                                                              

identified the type of expert evidence that he wished to introduce, and he explained why  



                                                                                                                         

he  believed  that  this  evidence  would  be  important  to  his  defense.                                    After  hearing  



                                                                                                                                

Crawford's explanation, the superior court ruled that  reasonable attorneys would not  



                                                                                                                           

spend money for the DNA testing that Crawford proposed, so the superior court denied  



                                                                                                           

Crawford's request for funds.  Crawford has not appealed this ruling.  



                                                                                                                             

                    Aside from this one instance, Crawford failed to apprise the superior court  



                                                                                                                           

of concrete, case-specific reasons why he wanted to retain the various experts he talked  



                                                                                                                          

about,  and  he  failed  to  explain  why  these  experts'  evaluations  or  analyses  would  



                                                                                     

constitute a significant component of his defense case.  



                                                                                                                                  

                    The superior court denied Crawford's various requests for public funds to  



                                                                                                                             

hire experts, and Crawford now argues that the superior court's  rulings on this issue  



                                                              

violated his right to due process of law.  



                                                                                                                             

                    In particular, Crawford argues that the superior court committed error when  



                                                                                                                              

the court denied Crawford's request for public funds to hire a medical expert.  In his brief  



                                                                                                                         

to this Court,  Crawford asserts that he needed a medical expert who might support  



                                                                                                                         

Crawford's assertions (1) that just before the shooting,  the victim,  Anthony Brown,  



                                                                                                             

strangled Crawford to the point where Crawford became unconscious or semi-conscious,  



                                                                                                                       

and  (2)  that  as  a  result  of  this  alleged  strangulation,  even  after  Crawford  regained  



                                                                                                                                

consciousness, he was "deprived ... of the ability to accurately or rationally perceive his  



                                                                                                                                 

surroundings, including what he [mistakenly] believed to be his pursuit by Brown."  



                                                               - 3 -                                                          2566
  


----------------------- Page 4-----------------------

                                                                                                                                  

                    As we explain in more detail in this opinion, we reject Crawford's claim of  



                                                                                                                      

error because Crawford never informed the superior court of this theory of relevance  



                                                                                                                                

when he made his requests for a medical expert.   Under the pertinent decisions of the  



                                                                                                                                 

United States Supreme Court, an indigent defendant who seeks public funding for an  



                                                                                                                     

expert must affirmatively explain the significance of, and the need for, that  particular  



                                                                                                                                

type of expert analysis.   Because Crawford  never informed the superior court of the  



                                                                                                                               

theory that he currently proposes for needing a medical expert's analysis, we hold that  



                                                                                                                           

the superior court did not commit error when it denied Crawford's request for public  



              

funding.  



                                                                                                                     

                    To analyze Crawford's case, we must discuss other legalissues. Paramount  



                                                                                                                          

among these issues is the question of whether an indigent criminal defendant is entitled  



                                                                                                                                

to have the Public  Defender Agency or the Office of Public Advocacy provide the  



                                                                                                                       

funding for litigation support services - for example, clerical and secretarial services,  



                                                                                                                       

investigative  services,  and  consultation  with  experts  -  even  though  the  indigent  



                                                                                                                            

defendant declines legal representation at public expense through these agencies.  



                                                                                                                           

                    To answer this question, we must interpret AS 18.85.100(a) - the statute  



                                                                                                                           

that guarantees indigent defendants "[representation] by an attorney to the same extent  



                                                                                                                               

as a  person  retaining an attorney" and "the necessary services and facilities of this  



                                                                                                                                

representation". More specifically, we must decide whether the services described in this  



                                                                                                                          

statute are a unified package of services that indigent defendants are entitled to receive  



                                                                                                                         

when they invoke their right to counsel at public expense - or whether, instead, indigent  



                                                                                                                                 

defendants have a right to demand that the Public Defender Agency or the Office of  



                                                                                                                        

Public Advocacy provide them with ancillary "services and facilities" at public expense  



                                                                                                 

even if they reject the assistance of a publicly funded attorney.  



                                                                                                                              

                    In our earlier decision in Crawford's case - Crawford v. State, 337 P.3d  



                                                                                                                                

4 (Alaska App. 2014) - we addressed this question of statutory interpretation but did  



                                                               - 4 -                                                          2566
  


----------------------- Page 5-----------------------

                                                                                                                        

not answer it.  Instead, because this is an issue of first impression in Alaska, and because  



                                                                                                                                

the resolution of this issue will obviously affect many other criminal defendants,  we  



                                                                                                                             

asked for supplemental briefing - not only from Crawford and the State, but also from  



                                                                                                                              

the  Public Defender Agency and the Office of Public Advocacy.                                            When those two  



                                                                                                                 

agencies informed us that their interests in this litigation were adverse to Crawford's  



                                                                                                                     

interests,  we  allowed  the  agencies  to  file  amicus  curiae  briefs,  but  we  appointed  



                                                                                           

independent counsel to argue Crawford's side of this issue.  



                                                                                                                         

                    Now,  having fully considered this matter,  we conclude that the various  



                                                                                                                          

services described in AS 18.85.100(a)(1)-(2) are one integrated whole.                                            The statute  



                                                                                                                                 

guarantees this package of services to indigent defendants who invoke their right to  



                                                                                                                      

counsel at  public  expense.                 But  the  statute  does  not  create  separate  and  severable  



                                                                                                     

guarantees of public funding for each service listed in the statute.  



                                                                                                                              

                    We  additionally  conclude  (for  reasons  explained  in  this  opinion)  that  



                                                                                                                        

Alaska  Administrative  Rule  12(e)  does  not  authorize  a  court  to  directly  appoint  



                                                                           

investigators or experts for criminal defendants.  



                                                                                                                                   

                    Administrative Rule 12(e) authorizes a court to appoint "counsel,  or a  



                                                                                                                    

guardian ad litem, or other representative" for an indigent person if the court determines  



                                                                                                                                  

that the appointment is not authorized by AS 18.85.100(a), and that the appointment is  



                                                                                                                                 

required by law or rule.  Although Rule 12(e) anticipates that attorneys and guardians ad  



                                                                                                                           

litem  appointed  under  this  rule  might  need  the  services  of  investigators  or  expert  



                                                                                                                              

witnesses (and might ask the Court System to pay for these services), Rule 12(e) does  



                                                                                                                                  

not authorize a trial court to provide money directly to pro se  defendants who wish to  



                                                                    

obtain these investigative or expert services.  



                                                                                                                            

                    Our interpretation of AS 18.85.100(a) and Administrative Rule 12(e) raises  



                                          

other significant questions.  



                                                               - 5 -                                                          2566
  


----------------------- Page 6-----------------------

                                                         First, there is the question of whether it is constitutional for a state to link                                                                                                                                                                                                                      



representative services and ancillary services in this manner - that is,                                                                                                                                                                                                                                              can the state                       



require indigent criminal defendants to accept legal representation at public expense in                                                                                                                                                                                                                                                                              



order to obtain the other litigation support services at public expense?                                                                                                                                                                                                                                



                                                         Second, if it is                                              not   constitutional to link these services -                                                                                                                                        in other words,                       



if indigent defendants who reject legal representation at public expense are nevertheless                                                                                                                                                                                                                                  



entitled   to   public   funding for                                                                                             other   litigation   support   services   such   as   clerical staff,   



investigators, and experts - then where is this public funding to come from?                                                                                                                                                                                                                                                             



                                                         We raise these questions because, ultimately, they must be answered, and                                                                                                                                                                                                                              



because (depending on the answers) our legislature may be required to take action.                                                                                                                                                                                                                                                                              



                                                         We now explain our conclusions in more detail.                                                                                                                                                             



                             Crawford's constitutional right to have expert witnesses and other support                                                                                                                                                                                                            

                            services funded at public expense, even though Alaska statutes and court                                                                                                                                                                                                                        

                             rules currently do not provide public funding for these support services                                                                                                                                                                                                       



                                                         As   a   matter   of   constitutional law,                                                                                                              indigent   criminal defendants                                                                                                 have   a  



circumscribed right to obtain the services of experts at public expense.                                                                                                                                                                                                                            The seminal case                                         



                                                                                                                                                                            2  

on this point of law is                                                                     Ake v. Oklahoma                                                             .    



                                                         The indigent defendant in Ake was prosecuted for murder.  Ake's attorney  

                                                                                                                                                                                                                                                                                                                                            



wished to present a defense of insanity, but the trial court refused a defense request to  

                                                                                                                                                                                                                                                                                                                                                                     

have Ake examined by a psychiatrist at public expense. 3                                                                                                                                                                                            The Supreme Court reversed  

                                                                                                                                                                                                                                                                                                                                           



Ake's conviction, holding "that when a defendant has made a preliminary showing that  

                                                                                                                                                                                                                                                                                                                                                              



his  sanity  at  the  time  of  the  offense  is  likely  to  be  a  significant  factor  at  trial,  the  

                                                                                                                                                                                                                                                                                                                                                               



              2             Ake v. Oklahoma                                                        , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).                                                                                                                                                                    



              3  

                                                                                                                                                                                                        

                            Ake , 470 U.S. at 72, 105 S.Ct. at 1090-91.  



                                                                                                                                                                               - 6 -                                                                                                                                                                          2566
  


----------------------- Page 7-----------------------

constitution requires that a State provide access to a psychiatrist's assistance on this issue                                                    



                                                                                    4  

if the defendant cannot otherwise afford one."                                                                                                 

                                                                                         More generally, the Supreme  Court  



                                                                                                                                       

stated that the due  process clause of the constitution guarantees indigent defendants  



                                                                   5  

                                                                       

"basic tools of an adequate defense".  



                        In Ake , this "basic tool of an adequate defense" was an evaluation by a  

                                                                                                                                                         



psychiatrist.  But other courts, relying on Ake , have held that this due process guarantee  

                                                                                                                                          



                                                                          6  

can apply to non-medical experts as well.  

                                                                 



                        Nevertheless,  indigent criminal defendants are not entitled to experts at  

                                                                                                                                                       



public expense simply for the asking.   A defendant who seeks public  funding for an  

                                                                                                                                                      



expert under Ake  must make a threshold showing that, given the facts of the case and  

                                                                                                                                                    



given how the case will be litigated, the proposed expert's evaluation will be a significant  

                                                                                                                                         

                                                             7   Absent this showing, a court can properly deny  a  

component  of the defense case.  

                                                                                                                                                        



defendant's request for public funding.  

                                                                       



                        The Supreme Court clarified this point in Caldwell v. Mississippi, 472 U.S.  

                                                                                                                                                   



320, 323-24 n. 1; 105 S.Ct. 2633, 2637 n. 1; 86 L.Ed.2d 231 (1985) - where the Court  

                                                                                                                                                 



held that a trial court can properly deny a defendant's request for public funds to hire  

                                                                                                                                                    



      4     Id.,  470 U      .S.  at  74,   105 S      .Ct.  at   1091-92.    



      5     Id.,  470 U      .S.  at  77,   105 S      .Ct.  at   1093.   



      6     See  State  v.  Wang,  92  A.3d  220,  229  n.  14,  15  (Conn.  2014);  State  v.  Scott,  33  S.W.3d  



746,  752 (  Tenn.  2000)  (DNA  expert);  Richardson v   .  State,  767  So.2d   195,   197-200 (  Miss.  

2000)   (DNA   expert);   People   v.   Dickerson ,   606   N.E.2d   762,   766-67   (Ill.   App.   1992)  

(handwriting  expert);  Ex  Parte  Moody ,  684   So.2d   114,   119  (Ala.   1996)  (ballistics  expert);  

State v   .  Coker,  412 N           .W.2d  589,  593 (  Iowa   1987)  (toxicologist).   



      7     See,   e.g.,   Williams   v.   Ryan ,   623   F.3d   1258,   1268-69   (9th   Cir.   2010);   Smith   v.  



 Workman, 550  F.3d  1258,  1268-69  (10th  Cir.  2008);  Williams  v.  Collins, 989  F.2d 841, 844- 

45 (   5th  Cir.   1993);  State v   .  Harris ,  866 S                .W.2d  583,  585-86 (  Tenn.  Crim.  App.   1992).    



                                                                         - 7 -                                                                     2566
  


----------------------- Page 8-----------------------

                                                                                                                     

experts when the defendant has offered only "undeveloped assertions that the requested  



                                                   

assistance would be beneficial."  



                                                                                                                              

                    For  the  reasons  we  are  about  to  explain,  we  conclude  that,  with  one  



                                                                                                                           

exception (the request for DNA testing that we previously referred to), Crawford failed  



                                                                                                                         

to  offer  the  superior  court  sufficient  information  as  to  why  the  evaluation  and/or  



                                                                                                                                     

testimony of his proposed experts would be a significant component of his defense.  



                                                                                                                    

Crawford therefore failed to make the threshold showing required by Ake v. Oklahoma  



                                               

and Caldwell v. Mississippi.  



                                                                                                                               

                    Because  Crawford failed to meet this threshold showing,  we need not  



                                                                                                                            

decide whether an indigent defendant who shows a genuine need for experts or other  



                                                                                                                            

litigation support services is entitled to public funding for these support services, even  



                                                                                                                                

if the defendant rejects a court-appointed attorney - or whether, instead, the State of  



                                                                                                                       

Alaska can require indigent defendants to accept legal representation at public expense  



                                                                                                                               

(either through the Public Defender Agency or the Office of  Public Advocacy) if the  



                                                                                                         

defendants wish to obtain public funds for litigation support services.  



                                                                                                               

          A detailed look at the litigation of this issue in Crawford's case  



                                                                                                                                     

                    The pre-trial proceedings in Crawford's  case lasted more than a year.  



                                                                                                                                  

During those months, Crawford indicated at various times that he wanted to consult a  



                                                                                                                                 

variety  of  experts  in  connection  with  his  defense  -  including a  medical expert,  a  



                                                                                                         

psychiatric  expert,  a  forensic  DNA analyst,  a  toxicology  expert,  a  "consciousness"  



                                                                                                                            

expert,  a "choking" expert,  and  an expert on child molestation.                                     But most of these  



                                                                                                                                     

proposed experts were mentioned only in passing by Crawford and his standby attorneys.  



                                                                                                                                 

                    There was one instance where Crawford offered a detailed explanation of  



                                                                                                                   

why he believed that a particular expert's testimony would be a significant component  



                                                              - 8 -                                                          2566
  


----------------------- Page 9-----------------------

                                                                                                                          

of his defense.  Crawford told the superior court that he wanted to hire a DNA analyst  



                                                                                                                             

to run another test of the victim's fingernails for DNA.  Crawford believed that this DNA  



                                                                                                                                

testing  would  show  that  the  victim  had  sexually  abused  Crawford's  children  -  



                                                                                     

unbeknownst to Crawford at the time of the shooting.  



                                                                                                                                  

                    After  hearing this  offer  of  proof,  the  superior  court  concluded  that  a  



                                                                                                                                 

reasonable defense attorney would not spend the thousands of dollars it would take to  



                                                                                                                           

procure this additional DNA testing, so the court denied Crawford's request for public  



                                                                                                                       

funds to pay for the proposed testing.  Crawford has not appealed this ruling.  



                                                                                                                    

                    The only other experts for whom Crawford offered any kind of explanation  



                                                                                                                                

were the "medical" expert and the "psychiatric" expert that Crawford mentioned in his  



                                                                                                                   

"[Criminal] Rule 16 Notice and Request for [Office of Public Advocacy] Assistance"  



                                                                                                                                      

filed in February 2009.   In this pleading, Crawford announced that he intended to call  



                                                                                         

a "medical expert" and a "psychiatric expert" at his trial.  



                                                                                                                                 

                    With regard to the medical expert,  Crawford stated that he intended to  



                                                                                                             

present  testimony  "regarding  the  physical  effects  of  being  choked  unconscious[,]  



                                                                                                                                   

including the repetitive blackouts that defendant suffered on the night in question as a  



                                                                          

result of being assaulted by the alleged victim."  



                                                                                                                                  

                    With regard to the psychiatric expert, Crawford stated that he intended to  



                                                                                                                               

present  testimony  suggesting  that  his  half-sister,  Kerri  Nichols  (the  fiancée  of  the  



                                                                                                                              

shooting  victim)  had  "symptoms  of  Dissociative  Identity  Disorder",  and  that  this  



                                                                                                                                

condition "[a]ffected her ability to accurately recall the [events] that occurred  on the  



                               

night in question."  



                                                                                                                       

                    About a week after Crawford filed this pleading, the State filed an objection  



                                                                                                                              

to Crawford's notice,  arguing that Crawford had failed to meaningfully comply with  



                                                                                                                         

Criminal  Rule  16  -  both  because  he  had  failed  to  provide  names  and  contact  



                                                               - 9 -                                                          2566
  


----------------------- Page 10-----------------------

                                                                                                                               

information for these proposed experts, and also because he had failed to supply any  



                                                                                                       

information about what these experts' opinions would actually be.  



                                                                                                                           

                    This matter was discussed at a pre-trial conference the following month  



                                                                                                                         

(March  2009).              However,  at  this  conference,  Crawford  did  not  offer  any  further  



                                                                                                                         

description of the kind of medical expert he was talking about, or what role that expert's  



                                                                                                    

evaluation or testimony would play in Crawford's defense case.  



                                                                                                                      

                    At this pre-trialconference, an attorney from the Office of Public Advocacy  



                                                                                                                         

offered to speak with  Crawford to find out exactly "for what purpose ... the medical  



                                                                                                                                 

expert [would] be hired", and then to forward Crawford's request to the Department of  



                                                                                         

Administration to see if they would approve the expense.  



                                                                                                                             

                    This matter was next mentioned again at a hearing in April, where the court  



                                                                                                                     

addressed the State's objection to Crawford's notice of experts.  During the discussion  



                                                                                                                                  

of whether Crawford's notice was adequate, Crawford told the court that he wanted to  



                                                                                                                      

hire a medical expert "who [could] testify to [his] condition on that night."  But Crawford  



                                                                                                                          

also told the court that he had not yet identified any potential expert witnesses.  



                                                                                                                               

                    At another hearing held the following month (on May 5th), Crawford told  



                                                                                                                           

the court that he still had not contacted any potential expert witnesses.   At that point,  



                                                                                                                        

Crawford's trial was scheduled to begin in seven weeks - on June 22, 2009.  



                                                                                                                                

                    On June 10th, at a pre-trialconference, the court addressed the fact that the  



                                                                                                                             

scheduled trial date was approaching, and that Crawford still had not given  the State  



                                                                                                                         

notice of any medical expert.  The court told Crawford that if he decided to get a medical  



                                                                                                                           

expert, he needed to promptly notify the State of what that expert would testify about,  



                                                                                                                    

so that the State would have sufficient opportunity to get their own expert.  



                                                                                                                              

                    The court held a trial call in Crawford's case the following week (on June  



                                                                                                                               

16th).  At that trial call, the prosecutor told the court that Crawford had mentioned two  



                                                                                                                        

potential witnesses - "one relating to strangulation, and one relating to child molesta- 



                                                              -  10 -                                                         2566
  


----------------------- Page 11-----------------------

                                                                                                                             

tion" - but that Crawford had not yet given notice of who these experts were, or what  



                                                          

their anticipated testimony might be.  



                                                                                                                        

                    In response, Crawford told the court only that he was "going to continue  



                                                                                                                              

to try and find [an] expert", and he ultimately asked for a continuance of the trial to give  



                               

him time to do so.  



                                                                                                                                  

                    The record shows that, at this time, Crawford and his standby attorney at  



                                                                                                                           

the  time,  Mark  Pawlowski,  were  actively  working on  procuring unspecified  expert  



                                                                                                                            

witnesses.         In  Pawlowski's  submission  of  expenses  to  the  Court  System,  he  listed  



                                                                                                                      

 1.7 hours spent on June 9, 2009 "interview[ing] potential expert witnesses".  



                                                                                                                              

                    But on the morning of  June 29th, when the parties assembled for trial,  



                                                                                                    

Crawford still had not yet given notice of any proposed experts.  



                                                                                                                               

                    As it turned out, the superior court continued Crawford's trial again, this  



                                                                                                                          

time to give  Crawford several weeks to litigate his alleged problems with the State's  



                               

pre-trial discovery.  



                                                                                                                     

                     Then, on August 3, 2009, Crawford filed a pleading in which he announced  



                                                                                                                                

that he was "terminating the services of Mark Pawlowski" as his standby counsel.  In this  



                                                                                                                             

pleading,  Crawford  complained  that  Pawlowski  had  not  provided  him  with  any  



                                                                                                                            

assistance.  In particular, Crawford complained that he still "[did] not yet have the name  



                                                                                   

of even one potential expert witness or investigator."  



                                                                                                                                 

                    At a pre-trial hearing held that same day, Crawford told the court that he  



                                                                                                                      

still needed more time to contact potential medical experts.  The court granted Crawford  



                                                                                                                               

a  three-month  continuance  for  this  purpose  -  rescheduling  Crawford's  trial  for  



                                 

November 2, 2009.  



                                                                                                                                 

                    We note, however, that the record contradicts Crawford's assertion that he  



                                                                                                                                

"[did] not yet have the name of even one potential expert witness or investigator" at the  



                                                                                                                                 

beginning  of  August.                The  record  shows  that,  as  of  mid-July,  either  Crawford  or  



                                                              -  11 -                                                         2566
  


----------------------- Page 12-----------------------

                                                                                                                               

Pawlowski had been in contact with a potential expert witness - although it was not the  



                                                                                                                         

medical expert that Crawford had repeatedly referred to.                                   Instead,  Crawford and/or  



                                                                                                                                     

Pawlowski had contacted a DNA testing laboratory in Colorado to solicit their services.  



                                                                                                                            

                    This is demonstrated by the fact that  on  August 10th (one week after  



                                                                                                                          

Crawford told  the  court  that he did not have the name of a single potential expert  



                                                                                                                            

witness), Crawford filed a pro se  pleading in which he asked the superior court to order  



                                                                                                              

public  funding under  Administrative  Rule  12(e)(5)  in  the  amount  of  approximately  



                                                                                          

$15,000 to pay for DNA analysis and expert witness fees.  



                                                                                                                    

                    Crawford's request was supported by a 3-page "Proposal for Requested  



                                                                                                                     

Discovery".  This document was generated by the Carlson Company, a DNA laboratory  



                                                                      

in Colorado, and it was dated July 21, 2009.  



                                                                                                                             

                    Thus, when Crawford told the court on August 3rd that he had not yet been  



                                                                                                       

able to contact any potential experts, this was not entirely accurate.  



                                                                                                                               

                    A few days after Crawford filed his request for public funds to pay for the  



                                                                                                                               

Colorado laboratory's DNA  testing,  Crawford filed an "Affidavit [and] Request for  



                                                                                                                    

Expedited  Hearing on  Funding of  Necessary  Defense  Services".                                       In  this  pleading,  



                                                                                                                              

Crawford asserted that, under the Supreme Court's decision in Ake v. Oklahoma, he was  



                                                                                                                              

entitled to public funding "for necessary investigative and expert witness services".  But  



                                                                                                                              

Crawford offered no specifics as to what investigative or expert witness services he was  



                                                                                                                                 

referring to - other than the request for DNA testing that he had already submitted.  



                                                                                                                               

                    At  this  point,  as  we  noted  earlier,  Crawford's  trial was  scheduled  for  



                                                                                                                   

November 2,  2009.               Crawford made  no  further application to the court concerning  



                                                                                                                         

investigators or expert witnesses until his case was called for trial on November 2nd.  



                                                                                                                                 

                    In the interim, new standby counsel (Glenda Kerry) had been appointed to  



                                                                                                                              

assist Crawford, and Crawford's case had been re-assigned to Superior Court Judge Eric  



                    

A. Aarseth.  



                                                             -  12 -                                                         2566
  


----------------------- Page 13-----------------------

                                                                                                                                   

                     With the prospective jurors summoned and waiting, Judge Aarseth tried to  



                                                                                                                               

make sure that there were no pending motions that needed to be resolved before jury  



                                                                                                                                

selection began.  It turned out that there was a problem securing the attendance of one  



                                                                                                                                

of the witnesses that Crawford wanted to call, so Crawford agreed to a delay of the trial  



                                                        

until that matter could be resolved.  



                                                                                                                             

                     Crawford then asked Judge Aarseth to address his earlier request for public  



                                                                                                                       

funding "of some expert testing" (i.e., the proposed DNA testing).  But then Crawford  



                                                                                                                                 

switched gears - turning from his previous request for DNA testing, and addressing his  



                                                    

desire to hire a "medical expert":  



                      

                                                                                                  

                               Crawford:  [O]ne  of the many things I've requested  

                                                                                                           

                     from the beginning was a medical expert.  I mean, I've said  

                                                                                                           

                     from the beginning, I - I know I shot the guy,  but  I  was  

                                                                                                                

                    barely able to stand, walk, breathe, see, [or] think.  There's a  

                                                                                                             

                     lot of pieces missing.  I mean, I reckon I know what I told the  

                                                                                                       

                     cops, and what I can tell from bullet trajectories and things,  

                                                                                                          

                     [and] what I think happened isn't even what happened.  And,  

                                                                                                          

                     I  mean,  an expert could be very beneficial to me on  that  

                                  

                     issue[.]  



                                                                                         

Crawford then asserted that he wanted to hire even more experts:  



                      

                                                                                                           

                               Crawford:  It wasn't just that one [DNA] expert that  

                                                                                                          

                     [I] was asking for money for.  It's really - I mean, the State  

                                                                                                             

                     has eight or ten experts. I wanted at least  three or four on  

                                                                                                          

                     certain issues, and I never got a - I mean, it's kind of hard  

                                                                                                         

                     to get an expert lined up and ask the court for money when  

                                                                                                         

                     you don't have the money in the first place.  So I was never  

                                                                                                        

                     able actually to get my hands on a medical doctor, you know,  

                                                                                                         

                     or any of the other - or a toxicology expert, because I never  

                                                                                                            

                     had the funding.  So I couldn't really submit requests to pay  

                                                                                                        

                     this guy because I never had a guy to pay.  ...  [Y]ou know,  



                                                              -  13 -                                                         2566
  


----------------------- Page 14-----------------------

                                                                                                     

                    I'm going to trial with no experts against maybe ten experts  

                                              

                     [for the State].  



                                                                                                                                  

                    Crawford then argued that, as a matter of constitutional right, "experts or  



                                                                                                                                  

other  services  should  be  provided  [to  indigent  defendants]  at  public  expense  [if]  a  



                                                                                                                                   

reasonable attorney would provide them for a defendant who had the ability to pay."  



                                                                                                                             

                    At this point, Judge Aarseth asked Crawford to specifically identify what  



                                                                          

experts and other services he was talking about:  



                      

                                                                                                                  

                               The Court:  So let me ask you, Mr. Crawford, this:  

                                                                                                             

                    When have you provided me with a CV, or [with] any type of  

                                                                                                          

                    information  about  what  [expert]  witness  it  is  that  I'm  

                                                                                                            

                     supposed to [order] one of these public agencies [to] hire for  

                              

                    you?  



                                                          

                               Crawford:  Well, ...  



                                                                                                         

                               The Court:  I mean, what experts do you have lined  

                                                                                                         

                    up?  Do you have names?  Do you have CVs?  Do you have  

                                                         

                    any information at all?  



                                                                                                     

                               Crawford:  What I - what I have is, I have contact  

                                                                                                             

                    information for experts.  The only contact I've been able to  

                                                                                                            

                    make is through the mail.  I had - I guess that was one of the  

                                                                                                     

                    reasons the Court appointed standby counsel, but ...  



                                                                                                         

                               The Court:  Standby counsel is there to answer your  

                                                                                                                  

                    questions.         ...   [But] she's not really ...  representing you.  

                                                                                                             

                    Okay?  Her job is not to independently create a defense or  

                                                                                                           

                    defense strategy for you.  ...  And so, ... you're telling me that  

                                                                                                             

                    you've done this research.  But where is your request for -  

                                                                                                       

                    where is your list of [experts like], "I want this expert who's  

                                                                                                    

                    a  DNA  expert  out  of  Colorado  to  come  up  [to  Alaska]  

                                                                                                       

                    because he can give an opinion on [such] and such"?  



                                                              -  14 -                                                         2566
  


----------------------- Page 15-----------------------

                                                                                                     

                               Crawford: Right.  Well, [that request for DNA testing]  

                                                                                                         

                    is in the file.   There's no opinion to give, because the tests  

                                                                                           

                    weren't done, because there was no money...  



                                                                                                       

                               The  Court:          Well,  I  know  you  [don't  have  their]  

                                                                                                       

                    opinion, because you [have] to pay for that.   But, I mean,  

                                                                                                     

                    where's the name?  I haven't seen a list of names ...  



                                                                                                              

                               Crawford: The name I have for ... the DNA expert is  

                                                                                                           

                    in the file - the name of the agency who would've done the  

                                                                                                         

                    testing.  I actually - without any money at all, and [that has]  

                                                                                                             

                    been the difficulty:   nobody really wants to talk to you  if  

                                                                                                          

                    there's no money available.   But  I  did talk - contact this  

                                                                                               

                    company that does DNA testing.  I sent them the paperwork  

                                                                                                                

                    I had on the State's DNA testing.  They agreed to do testing.  

                                                                                                          

                    And they gave me a quote on the price, and I submitted that  

                                   

                    quote ...  



                                                                                                           

                               The Court:  And what would the DNA testing do?  



                                                                                                           

                               [Crawford  responded  to  the  judge's  question  by  

                                                                                                          

                    asserting that, since the time of the shooting, Crawford had  

                                                                                                       

                    obtained information which led him to believe that the victim  

                                                                                                          

                    had sexually abused Crawford's children while Crawford was  

                                            

                    unconscious.]  



                                                                                                     

                               The  Court:   Okay.             Well,  based upon what you're  

                                                                                                    

                    explaining to me, it seems unlikely that a reasonable attorney  

                                                                                                            

                    would've ordered the expense of getting a DNA expert.  So  

                                                                                                       

                    for  those  independent  grounds,  then,  I  will  [deny  your]  

                                                               

                    application for that money.  



                                                                                                                     

                    Afew minutes later, Crawford's standby counsel (Glenda Kerry) addressed  



                                                                                                                                 

the  court,  declaring that  she  and  Crawford  had  been  in  the  process  of  obtaining a  



                                                             -  15 -                                                         2566
  


----------------------- Page 16-----------------------

toxicology expert and a local doctor, but they decided that their efforts were pointless if                                                                                                                                                   



there was no money to pay the toxicologist's fee:                                                                                         



                                       

                                                        Ms. Kerry                    : Judge, if I may: We were in the process of                                                                      

                                      getting experts -                                 toxicology - this is an expert case.                                                                  [Mr.  

                                      Crawford] needs experts to try this case, and the State has                                                                                                  

                                      eight or ten.                      And we were in the process of getting experts.                                                                                        

                                     I   know,   locally,   our   doctor   that   I   was   in   the   process   of  

                                      contacting, and I think [this doctor] would've been excellent                                                                                  

                                      for this case.                       However, Judge Smith denied ... [Crawford's]                                                 

                                                                                                                              8      And at that point, I could  

                                     motion for funding for experts.                                                                                                                       

                                     not,  in good faith,  you know,  tell these  experts to look at  

                                                                                                                                                                                                       

                                     these reports and, you know, we wanted to retain them.  We  

                                                                                                                                                                                                  

                                     had no money; we weren't going to be able to retain them.  

                                                                                                                                                                                                               

                                      So that's why you don't have any CVs or anything in front of  

                                                                                                                                                                                                       

                                     you. And that's the only reason.  We were going to do it.  

                                                                                                                                                                                                      



For present purposes, the most significant  aspect of Crawford's remarks, and of his  

                                                                                                                                                                                                                                          



standby counsel's remarks, is that neither of them offered a concrete description of what  

                                                                                                                                                                                                                                    



kind of analysis they wanted the doctor and the toxicologist to perform, and why their  

                                                                                                                                                                                                                                     



analyses would be important to Crawford's case.   Judge Aarseth immediately pointed  

                                                                                                                                                                                                                             



this out: "[There was] ... an opportunity to make that application, but the record [in front  

                                                                                                                                                                                                                                    



of me] doesn't support that."  

                                                                                    



                                      There was no further discussion of these matters on November 2nd.  But  

                                                                                                                                                                                                                                       



the start of Crawford's trial was delayed for other reasons, so the parties appeared in  

                                                                                                                                                                                                                                            



          8        Superior Court Judge Jack W.                                                       Smith had earlier been assigned to Crawford's case.                                                                                           



In August 2009, Crawford filed a written request under Administrative Rule 12(e)(5)(D) for                                                                                                                                                

$7500 in court system funds                                                      to   pay for his proposed DNA testing.                                                                     Judge Smith denied                  

Crawford's request, ruling that                                                       it   was   inappropriate to spend court system money under                                                                                   

Administrative Rule 12(e) when Crawford was eligible for complete legal representation -                                                                                                                                                    

either   by   the   Public   Defender   Agency   or   the   Office   of   Public   Advocacy   -   under  

AS 18.85.100(a).                                



                                                                                                                  -  16 -                                                                                                             2566
  


----------------------- Page 17-----------------------

                                                                                                                             

court the next day (November 3rd),  and Crawford again  raised  the issue of public  



                                 

funding for experts.  



                                                                                                                            

                     Judge Aarseth initially told Crawford that he could not get public money  



                                                                                                                          

for experts unless he accepted court-appointed counsel.                                   But when the judge finished  



                                                                                                            

speaking, the lead prosecutor interjected that this was not necessarily true:  



                       

                                                                                                              

                               Prosecutor : [Mr. Crawford] also has the ability to file  

                                                                                                             

                     with  the  Court  [a]  request  for  specific  experts  [and]  for  

                                                                                                           

                     specific  testing  ...  [and]  then  the  Court  can  review  [the  

                                                                                                           

                     request] and make those ...  determinations.                           [But no such  

                                                                      

                     request] has ... occurred in this case.  

                                      

                               .  .   .  



                                                                                                          

                               Crawford:  It ... has occurred.   I - I ... put in [my]  

                                                                                                               

                     request - request for an expedited hearing on the funding of  

                                                                                                       

                     defense costs.  ...  I put in the request for an expedited hearing  

                                                                                                       

                     on defense costs.  That's because I put in the original request  

                                                                                                             

                     for DNA testing [and] it was denied.   I put in a motion for  

                                                                                                              

                     reconsideration.  It was denied.  [And] I put in the request for  

                                                                   

                     [a] hearing on defense costs.  

                        

                                                                                                              

                               ...   I put in the request for an expedited hearing on  

                                                                                                      

                     defense costs because I ... assumed that I would have multiple  

                                                                                                         

                     experts,  just as the State has multiple experts.                           The Court  

                                                                                                            

                     never granted that hearing, never gave me a hearing on that  

                                                                                                           

                     issue.  So there are - there are multiple experts I would have  

                                          

                     requested[.]  

                                      

                               .  .   .  



                                                                                                             

                               [I have made] multiple filings [on this issue].  And one  

                                                                                                      

                     of those was a request for an expedited hearing on defense  

                                                                                                            

                     costs.   ...  It was filed in mid-[September], and I would just  

                                                                                                

                     like the Court to - I have a copy of it here.  ...  



                                                               -  17 -                                                         2566
  


----------------------- Page 18-----------------------

                                                                                 

           The Court: Is this the one [titled] "Affidavit /  Request  

                                                                                

for  Expedited  Hearing on  Funding of  Necessary  Defense  

                  

Services"?  



                                                       

           Crawford:  That is correct.  



                                                                                      

           The Court:  Okay.  [In this motion, you say] you want  

                                                             

a hearing, but you're not explaining ...  



                                                                                       

           Crawford:  Well, my - my [previous] motions had  

                                                                                      

been denied,  and my motion for reconsideration had been  

                  

denied.  ...  

                 

           .  .  .  



                                                                                 

           The  Court:  And Mr. Crawford, ... that is a tactical  

                                                                                          

choice on your part, in terms of whether or not you want to  

                                                                                    

provide the pleadings and make the record that you  think  

                                                                                       

might be necessary to support you on appeal.  Choices that  

                                                               

you have made from the beginning.  ...  

                 

           .  .  .  



                                                                                          

          You know, ... the problem  is that - I've looked at  

                                                                                      

[your pleading].  There is no record in there.  ...  [F]rom what  

                                                                                      

I can see, there is no ... adequate record ... where you ever  

                                                                                  

established that a reasonable attorney would make the choices  

                                                                                         

that you're making.  ...  [Or] whether [the Court System is]  

                                                                                

authorized and [has] the discretion to pay for these services,  

                                                                         

which I don't think you've established either.  Okay?  

                 

           .  .  .  



                                                                                

           [I]n terms of any showing that a reasonable attorney  

                                                                                 

would've [hired  these experts], or that the rules or statutes  

                                                                                          

actually require this Court to provide this kind of money, or  

                                                                                          

that this money actually exists,  or  should exist because of  

                                                                                    

some rule, you haven't made that showing either.   I know  

                                                                           

you think you have, but I don't think you have.  



                                                                    

           Crawford:  I've offered the proof ...  



                                          -  18 -                                                         2566
  


----------------------- Page 19-----------------------

                                                                                     

          The Court:  A reviewing court may disagree with me,  

                                                                   

but your time to do that has passed.  Okay?  



                                                                                   

          Crawford:   I've - I've offered - the proof is ...  



                                                                              

          The Court:  No, ... you asked for hearing ...  



                                                                 

          Crawford:  I have the proof here ...  



                                                                                       

          The  Court:           And  that's  not  the  way  it's  going  to  

                                                                                       

happen.  I'm not going to sit here - no, I'm not going to sit  

                                                                                  

here and take oral motions all the time [just] because that's  

                                               

the way you want to do it.  ...  



                                                                                 

          Crawford:  I waived 90 days [of speedy trial time],  

                                                                             

from August 3rd to November 2nd, to get experts.  



                                                                                        

          The Court:  Okay.   Well, I don't see any motions in  

                                                                                   

here identifying any experts.   ...   So apparently - I don't  

                                                                                     

know whether you've been doing that or not. You say you  

                                                                                     

have, but I don't see anything in here.  You can say it all you  

                                                                                        

want, ... but there's nothing here.  ...  You chose tactically to  

                                                                     

not make the record.  Okay?  If you don't ...  



                                                                             

          Crawford:  No, I have made the record.  ...  



                                              

          The Court:  I disagree. Okay?  



                                                                                     

          Crawford:  Well, I'm offering proof right now, if you  

                                     

want the record, but ...  



                                                                                     

          The Court:  The time has passed for that, ... and I'm  

                                                                            

not going to take [your offer] orally.                       ...   You should've  

                                                                                    

provided  a  motion  that  presented  all  the  arguments  that  

                                                                                   

you're trying to make now.  The problem is ... that you make  



                                         -  19 -                                                        2566
  


----------------------- Page 20-----------------------

                                                                                                   

                    very broad, ambiguous, vague requests that aren't followed  

                                                                                                             

                    up with any specificity.   And then you expect  everyone to  

                                                                                                          

                    read your mind.  And now here we are, the day before trial,  

                                                                                                

                    and you're thinking that somehow we're going to understand  

                                                                                                        

                    exactly what you wanted, or what you were thinking.  



                                                                                                          

                               That is the problem with representing yourself,  Mr.  

                                                                                                             

                    Crawford, is that you do not understand that it is your job to  

                                                                                            

                    make ... the record that we can rule upon.  ...  



                                                                                                              

                               Crawford: I - I have to disagree with the assertion ...  

                                                                                                            

                     [that] the record was not made.  ...  I understand that I'm not  

                                                                                                         

                    an  attorney  and  that   I   may  make  mistakes,   but   I'm  

                                                                                                            

                    disagreeing with the assertion that I made the mistake of not  

                                                                                                          

                    making the record  for  requesting the experts.                            There was  

                                                                                                  

                    nothing vague or ... broad about my request.  ...  I requested  

                                                                                                               

                    a medical expert in February.                     Look  at what I - what I  

                                                                                                                 

                     stated.  One page:  I made it very simple and very clear.  ...  

                                        

                               .  .  .  



                                                                                                             

                               The - the toxicology has been a major issue that ...  

                                                                                                         

                    I've been over, and over, and over, and over in open court  

                                                                                                         

                    about.  [And] the need for a medical expert.  I've been over,  

                                                                                                     

                    and over, and over that in open court.  I know you weren't  

                                                                                                           

                    here for all of [the prior proceedings], but I don't want the  

                                                                                                             

                    Court to say now that there's no records, when there's a lot  

                                     

                    of record.  



                                                                                                             

                               The Court: Well, ... Mr. Crawford, my impression of  

                                                                                                      

                    what's in the record or what isn't in the record will be subject  

                                                                                          

                    to review [on appeal] if there's a conviction.  



                                                                                                                        

                    When  Judge  Aarseth  made  this  ruling  at  the  November  3rd  hearing,  



                                                                                                                        

everyone  anticipated  that  Crawford's  trial would  begin  as  soon  as  various  pre-trial  



                                                                                                                                 

matters were resolved.   Crawford himself spoke about "starting trial [on] Monday" -  



                                                              - 20 -                                                          2566
  


----------------------- Page 21-----------------------

                                                                                                                                

i.e., November 9th. But because of witness difficulties, Judge Aarseth decided not to call  



                                

a jury for Monday.  



                                                                                                                           

                    Duringan ensuingdiscussion as to whether the superior court would supply  



                                                                                                                         

the money for Crawford to investigate the whereabouts of a potential defense witness  



                                                                                                                                     

(a lay witness), the topic again turned to public funding for Crawford's expert witnesses.  



                                     

Crawford said to Judge Aarseth:  



                      

                                                                                                     

                               Crawford:  I told [my standby counsel] that I wanted  

                                                                                                    

                    to try to find ... specific experts:   specific medical experts,  

                                                                                                    

                    toxicology experts, consciousness  experts, choking experts,  

                                                                                                             

                    child molest[ation] experts - specific experts so I could do  

                                                                                                          

                    just as the  court said, and present that [information].   And  

                                                                                                           

                     [my standby counsel] said I can't do that.  How can I get any  

                                                                                                      

                    expert when  -  I  can't even go ask them, when I already  

                                                                                                                 

                    know [that] the Court's goingto deny [the request for funds]?  

                                                                                                           

                    How can I, in good faith, go ask them to spend time on this  

                                                                                                        

                     [case] and let me present them as a potential expert ... when  

                                                                                                

                    the Court's already said there's no money for it?  



                                                                                                                                  

But again, Crawford offered no details as to why he wanted to consult these experts, or  



                                                                                                                

how their analyses would be significant components of Crawford's case.  



                                                                                                                  

                    This was the last pre-trial discussion of public funding for  Crawford's  



                                            

proposed expert witnesses.  



                                           

          Our analysis of this record  



                                                                                                                    

                    During  the  pre-trial  proceedings  in  this  case,  there  were  numerous  



                                                                                                                            

discussions - both in pleadings and in court hearings - as to whether Crawford could  



                                                                                                                      

secure public funds to hire investigators and experts.  As we have explained, Crawford  



                                                                                                                               

took the position that he had a constitutional right to obtain public funds to purchase any  



                                                              - 21 -                                                          2566
  


----------------------- Page 22-----------------------

defense services that a reasonable private attorney would purchase if the attorney's client                                                                                                                                                                                                                                



had the means to pay for these services.                                                                                                                     But though the Supreme Court held in                                                                                                                     Ake v.   



 Oklahoma  that indigent criminal defendants have a right to obtain the services of certain                                                                                                                                                                                                                          



experts at public expense, Crawford's formulation of this right is too broad.                                                                                                                                                                                                                         



                                                    Given a sufficiently wealthy client, there are many avenues of investigation                                                                                                                                                                



and expert analysis that a reasonable attorney might pursue.                                                                                                                                                                              As this Court observed in                                                                     



State v. Jones                                        ,  



                                                      

                                                                              If   given   an   unrestricted   budget   and   freed   of   any  

                                                    constraints   as   to   probable   materiality   or   accountability,   a  

                                                    lawyer might ... cheerfully log[] in many hours looking for                                                                                                                                                                 

                                                    the   legal   equivalent   of   a   needle   in   a   haystack.     ...     [A]  

                                                    millionaire   might   ...   retain[]   counsel to                                                                                                             leave   not   a   single  

                                                    stone   unturned.     However,   a   defendant   is   not   entitled   to  

                                                    perfection but to basic fairness.                                                                                        In the real word, expenditure                                      

                                                    of time and effort is dependent on a reasonable indication of                                                                                                                                                                   

                                                    materiality.   



759 P.2d 558, 572 (Alaska App. 1988) (quoting                                                                                                                                                  United States v. DeCoster                                                                               , 624 F.2d           



 196, 211 (D.C. Cir. 1976) (en banc)).                                                                                                                



                                                    The true test for whether an indigent defendant is entitled to public funds                                                                                                                                                                                           



to hire an expert is the test set forth in                                                                                                      Ake v. Oklahoma                                                      and in                    Caldwell v. Mississippi                                                                        :   



whether the defendant has shown that the proposed expert analysis will be a significant                                                                                                                                                                                                             



                                                                                                                             9  

component of the defense case.                                                                                                   



                                                    Although Crawford spoke repeatedly of his desire to consult various types  

                                                                                                                                                                                                                                                                                                                           



of experts, there was only one  instance where he offered a concrete reason why he  

                                                                                                                                                                                                                                                                                                                                     



wanted to retain a particular expert.  This was in early November 2009, when Crawford  

                                                                                                                                                                                                                                                                                                          



             9             Caldwell,   472   U.S. 320, 323-24 n. 1; 105 S.Ct. 2633, 2637 n. 1; 86 L.Ed.2d 231                                                                                                                                                                                                                    



(1985).   



                                                                                                                                                              - 22 -                                                                                                                                                            2566
  


----------------------- Page 23-----------------------

                                                                                                                                

explained to Judge Aarseth why he wanted to conduct  additional DNA testing of the  



                                                                                                                                   

victim's fingernails.   After hearing Crawford's explanation, Judge Aarseth ruled that a  



                                                                                                                     

reasonable attorney would not pay for Crawford's proposed DNA testing -a conclusion  



                                                                                                             

that we agree with, and a conclusion that Crawford has not appealed.  



                                                                                                                                 

                    None of Crawford's other requests for expert witnesses were supported by  



                                                                                                                       

a description of what, precisely, Crawford hoped to obtain from these experts' analyses,  



                                                                                                                         

or how the proposed analyses would be significant components of Crawford's defense  



           

case.  



                                                                                                                                  

                     We note, in particular, that Crawford never informed the superior court of  



                                                                                                                                 

the theory he asserts now on appeal:  that the victim strangled him and that, because of  



                                                                                                                                

this  purported  strangulation,  Crawford  was  not  only  rendered  semi-conscious  or  



                                                                                                                                 

unconscious for a time, but also, upon regaining consciousness,  Crawford's ability to  



                                                                                                                           

perceive reality was impaired to the point where he mistakenly believed that the victim  



                                                          

was attacking him with deadly force.  



                                                                                                                               

                     It is no doubt true, as both Crawford and his standby counsel asserted, that  



                                                                                                                                 

it was essentially impossible for  Crawford to hire an expert without having money in  



                                                                                                                                 

hand.       But  the  Supreme  Court's  rulings  in  Ake  v.  Oklahoma  and  in  Caldwell  v.  



                                                                                                                      

Mississippi  do  not  require  the  government  to  supply  money  directly  to  indigent  



                                                                                                                      

defendants so that these defendants can hire their own experts.  This matter is expressly  



                              

addressed in Ake :  



                      

                                                                                                              

                     [We  do  not]  say  ...  that   the  indigent  defendant  has  a  

                                                                                                   

                     constitutional right to choose a psychiatrist of his personal  

                                                                                                           

                     liking or to receive funds to hire his own.  Our concern is that  

                                                                                                              

                    the indigent defendant have access to a competent [expert in  

                                                                                                             

                    the appropriate field], and as in the case of the provision of  

                                                                                                            

                     counsel  we  leave  to  the  State  the  decision  on  how  to  

                                                     

                     implement this right.  



                                                              - 23 -                                                          2566
  


----------------------- Page 24-----------------------

                                                       

470 U.S. at 83, 105 S.Ct. at 1096.  



                                                                                                                             

                    Thus,  Ake  does  not  guarantee  indigent  defendants  an  expert  of  their  



                                                                                                                       

choosing - only that indigent defendants must be supplied an expert who is qualified  



                                                                                                                     

to  conduct  the  type  of  analysis  that  the  defendant  has  shown  to  be  a  significant  



                                                   

component of the defense case.  



                                                                                                                                

                    In other words, Ake and Caldwell presuppose that the government need not  



                                                                                                                     

supply money to hire experts for an indigent defendant unless and until the defendant  



                                                                                                                                      

affirmatively demonstrates a significant need for the proposed type of expert analysis.  



                                                                                                                              

The defendant must first explain the significance of, and the need for, a particular type  



                                                                                                                          

of expert analysis, and then money will be authorized so that the defendant can receive  



                                                                       

the services of a qualified expert in that field.  



                                                                                                                            

                    Crawford  never  made  this  showing.                         Accordingly,  the  superior  court  



                                                                                                                           

committed no error when it declined to provide public  funds  for the various expert  



                                                         

witnesses that Crawford mentioned.  



                                                                                                                       

           We conclude that the Alaska Public Defender Agency is not required to  

                                                                                                                       

         fund ancillary litigation services for indigent defendants who decline to be  

                                        

          represented by the Agency  



                                                                                                                        

                    We have just concluded that Crawford failed to make a sufficient showing  



                                                                                                                                     

that he needed the various experts that he talked about during the trial court proceedings.  



                                                                                                                         

Given that conclusion,  the question of whether the Alaska Public Defender Agency  



                                                                                                                          

would have been required under AS 18.85.100(a) to supply the funds for these experts  



                                                                                                                             

is technically moot.  But this issue has been fully briefed to us, and there is a strong need  



                                                                                                                                  

for judges and trial lawyers to know the answer to this question when this issue arises in  



                   

the future.  



                                                              - 24 -                                                          2566
  


----------------------- Page 25-----------------------

                                                             For the reasons we are about to explain, we conclude that AS 18.85.100(a)                                                                                                                                                                                                      



-  the statute that guarantees legal counsel for indigent criminal defendants - does not                                                                                                                                                                                                                                                                                               



 authorize    public    funding    of    clerical    support,    investigative    services,    and    expert  



consultations   for   indigent   criminal   defendants   who   have   waived   their   right   to   be  



represented by an attorney under the auspices of either the Public Defender Agency or                                                                                                                                                                                                                                                                                                        



the Office of Public Advocacy.                                                                                                                  



                               The legislature's purpose in creating the Alaska Public Defender Agency                                                                                                                                                                                                                                 



                                                             We   begin our analysis by explaining the Alaska legislature's reason for                                                                                                                                                                                                                                                 



creating the Public Defender Agency.                                                                                                                                              The   legislature did so because it viewed the                                                                                                                                                       



Agency as the best possible solution for a public problem:                                                                                                                                                                                                                       how to meet the State's                                                              



constitutional obligation to provide legal counsel to indigent criminal defendants.                                                                                                                                                                                                                                                                                       



                                                             The   historical   background   of   this   problem   is   explained   in   the   Alaska  



 Supreme Court's decision in                                                                                                     Jackson v. State                                                            , 413 P.2d 488 (Alaska 1966).                                                                                                             



                                                             When Alaska became a state in 1959, it was a "firmly established" legal                                                                                                                                                                                                                                             



doctrine that private attorneys had an obligation, as officers of the court, to represent                                                                                                                                                                                                                                                                  



indigent persons - either completely at their own expense, or with only such minimal                                                                                                                                                                                                                                                                              



payment as might be authorized by statute or court rule.                                                                                                                                                                                                 In 1966, in                                         Jackson, the Alaska                                        



 Supreme Court explicitly re-affirmed this doctrine - holding that "an attorney appointed                                                                                                                                                                                                                                                                  



to   represent   an   indigent   prisoner   in   a   criminal matter                                                                                                                                                                                         has   no   constitutional right                                                                                               to  



                                                                                                                                                                                   10  

receive compensation for his services."                                                                                                                                                    



                                                             Three years before Jackson was decided, the United States Supreme Court  

                                                                                                                                                                                                                                                                                                                                                                             



had issued its decision in Gideon v. Wainwright - a case that changed the landscape of  

                                                                                                                                                                                                                                                                                                                                                                                             



                10            Jackson , 413 P.2d at 490.                                                                                        



                                                                                                                                                                                        - 25 -                                                                                                                                                                                       2566
  


----------------------- Page 26-----------------------

the criminal law by holding that indigent criminal defendants have a constitutional right                                                                           



                                                                 11  

to the assistance of an attorney.                                                                                                                         

                                                                       Because of the  Gideon decision, private attorneys  



                                                                                                                                                            

were  finding  themselves  conscripted  much  more  frequently  to  represent  indigent  



                                                           

defendants in criminal cases.  



                                                                                                                                                                      

                           The Alaska Supreme Court acknowledged this reality in Jackson - the fact  



                                                                                                                                                    

that Gideon had substantially broadened "the [private bar's] obligation of representing  

                                                                                               12      Nevertheless,  the  supreme  court  

                                                                                                                                                                 

indigents  with  relatively  little  compensation".  



declared  that  "[t]he  problem  of  providing some  means  of  adequately  compensating  

                                                                                                                                                 



 [private] counsel [tasked with] representing indigents ... is a matter fundamentally for  

                                                                                                                                                                      

legislative and not judicial treatment." 13  

                                                                                



                           The  supreme  court  noted  that  it  had  promulgated  a  court  rule  which  

                                                                                                                                                                



authorized  court-appointed  attorneys  to  "receive  certain  minimal  fees  for   their  

                                                                                                                                                                  

services". 14                But the supreme court indicated that trial courts had no power to order  

                                                                                                                                                                  



payment of sums larger than those specified in the court rule - and the supreme court  

                                                                                                                                                                  



suggested that the courts had no power to enforce even the minimal fees specified in the  

                                                                                                                                                                       



court  rule  if  the  legislature  declined  to  appropriate  funds  for  this  purpose:                                                                      "[T]he  

                                                                                                                                                              



problem of securing funds to pay the amount now permitted by court rule, or to pay  

                                                                                                                                                                     



larger sums than  those  presently permitted,  is entirely a matter for decision by the  

                                                                                                                                                                      

legislature." 15  

                             



       11     Gideon v. Wainwright                      , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963);                                                 see also   



Douglas v. California                      , 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).                                                 



       12  

                                                                

             Jackson , 413 P.2d at 490.  



       13    Ibid.  

                        



       14    Ibid.  



       15    Ibid.  



                                                                                 - 26 -                                                                             2566
  


----------------------- Page 27-----------------------

                         Ultimately, twenty-one years later, our supreme court overruled                                                         Jackson  



and held that private attorneys could not be compelled to represent indigent                                                                     criminal  

                                                                       16  But no one could have predicted this at the time  

defendants without just compensation.                                                                                                                    



the supreme court issued its decision in Jackson .  

                                                                          



                         So instead, in 1969, the Alaska legislature took action to address the need  

                                                                                                                                                        



to provide adequate funding for the representation of indigent criminal defendants.  The  

                                                                                                                                                         



legislature's answer was to create the Alaska Public Defender Agency.  See AS 18.85,  

                                                                                                                                                     



enacted by SLA 1969, ch. 109.  

                                                            



                         The  House  Judiciary  Committee  Report  that  accompanied  this  legisla- 

                                                                                                                                                    

tion 17  stated that the Public Defender Agency was being established "to assure needy  

                                                                                                                                                     



defendants of adequate legal representation" and "to more equitably distribute the public  

                                                                                                                                                      



obligation to provide this representation."  

                                                                               



                         The Judiciary Committee noted that the constitutional obligation to provide  

                                                                                                                                                   



legal representation to indigent defendants was falling almost entirely on members of the  

                                                                                                                                                           



private  bar.   The Committee declared that the purpose of creating a Public Defender  

                                                                                                                                               



Agency was to "reliev[e] the legal profession of this unique burden", while at the same  

                                                                                                                                                       



time creating a public agency that would provide "more efficient" and "more uniform"  

                                                                                                                                                



representation  to  indigent  defendants  -  representation  that  would  be  provided  by  

                                                                                                                                                           



"highly skilled and specialized" lawyers whose services would be "comparable to the  

                                                                                                                                                           



                                                                              18  

services of the district attorney's offices."  

                                                              



       16   DeLisio v. Superior Court                       , 740 P.2d 437 (Alaska 1987).                         



       17   House Judiciary Committee Report on Committee Substitute for House Bill No. 127  

                                                                                                                                                          

(Judiciary).  

                      



       18    1969 House Journal at 220.                        



                                                                           - 27 -                                                                        2566
  


----------------------- Page 28-----------------------

                                                                                                                          

                    Thus,  the  Public  Defender  Agency  was  created  to  meet  the  State's  



                                                                                                                         

constitutionalobligation under Gideon v. Wainwright to provide legal counsel to indigent  



                                                                                                                                

criminal defendants.  With this legislative purpose in mind, we turn to an analysis of the  



                                                            

statutory language at issue in this case.  



                                                                    

          A closer look at the Public Defender Act  



                                                                                                                                

                    Within the Public Defender Act, the statutory guarantee of legal counsel for  



                                                                                                                               

indigent criminal defendants is found in AS  18.85.100(a).                                    Subsection (a)(1) of this  



                                                                                                                                

statute speaks of an indigent defendant's right "to be represented ... by an attorney to the  



                                                                                                                                

same extent as a person retaining [a private] attorney", while subsection (a)(2) of the  



                                                                                                                               

statute speaks of a defendant's right "to be provided  with the necessary services and  



                                                   

facilities of this representation".  



                                                                                                                               

                    The  fact  that  subsection  (a)(2)  speaks  of  "the  necessary  services  and  



                                                                                                                          

facilities of this representation" is an important factor in construing the statute.  



                                                                                                                      

                    As we explained in the preceding section of this opinion,  the legislative  



                                                                                                                                

purpose  behind  the Public Defender Act was to create a mechanism for meeting the  



                                                                                                                        

State's  obligation  under  Gideon  v.  Wainwright  to  provide  legal counsel to  indigent  



                                                                                                                          

criminaldefendants. Subsection (a)(1) of AS 18.85.100 addresses this obligation directly  



                                                                                                                            

-  by declaring that indigent defendants have a right of representation "to the  same  



                                                                             

extent as a person retaining [a private] attorney".  



                                                                                                                        

                     Subsection (a)(2) of the statute speaks of the other services and facilities  



                                                                                                                           

that are necessary to "this representation".  Given the underlying purpose of the Public  



                                                                                                                       

Defender Act, it makes sense to interpret the phrase "this representation" as a reference  



                                                                                                                  

to the representation by counsel guaranteed by subsection (a)(1).                                        The  legislature's  



                                                                                                                                 

reference to "this representation" suggests that the legislature viewed such things as  



                                                              - 28 -                                                          2566
  


----------------------- Page 29-----------------------

 clerical   support,   investigative   services,   and   consultation   with   experts   as   ancillary  



 services that might be needed if indigent defendants were to receive the full benefit of                                                                                                                                                                                                                                                                                                                                                                                                                             



the legal representation guaranteed by subsection (a)(1).                                                                                                                                                                                                                                                                                       



                                                                                Under this interpretation of the statute, the Public Defender Agency would                                                                                                                                                                                                                                                                                                                                     



 only be obligated to provide these ancillary services to defendants who are represented                                                                                                                                                                                                                                                                                                                                                                     



by the Agency (or by attorneys working under contract with the Agency).                                                                                                                                                                                                                                                                                                                                                                                 



                                                                                We   acknowledge   that   the    courts    of   other   states   are   split   on   this  

                                     19              Some states have held that their public defender agencies have an independent  

 issue.                                                                                                                                                                                                                                                                                                                                                                                                                                                   



                     19                 See People v. Cardenas                                                                                                                   , 62 P.3d 621, 623 (Colo. 2002) (holding thata defendant who                                                                                                                                                                                                                                                                



wanted the state to pay for a private translator was required to accept representation                                                                                                                                                                                                                                                                                                                                                                                                                             by  

 court-appointed counsel);                                                                                                                        DeFries v. State                                                                                 , 597 So.2d 742, 744-46 (Ala. Crim. App. 1992)                                                                                                                                                                                                

 (holding that a defendant who wanted public funds to hire a private investigator was required                                                                                                                                                                                                                                                                                                                                                                                       

to accept court-appointed counsel).                                                                                                               



                    But see Matter of Cannady                                                                                                                                        , 600 A.2d 459, 462 (N.J. 1991) (holding that                                                                                                                                                                                                                                  an indigent   

 defendant whose family supplied the money for a private attorney was still entitled to have                                                                                                                                                                                                                                                                                                                                                                                                               

the public defender agency pay for an expert witness - but at the same time giving                                                                                                                                                                                                                                                                                                                                                                                                                             the  

public defender agency the same discretion it would normally enjoy to decide whether the                                                                                                                                                                                                                                                                                                                                                                                                                         

proposed expert was important enough to justify the expense);                                                                                                                                                                                                                                                                                                        State v. Burns                                                                         , 4 P.3d 795,                                

 800-01 (Utah 2000) (same holding);                                                                                                                                                                                      State v. Wool                                                                       , 648 A.2d 655, 658, 660 (Vt. 1994)                                                                                                                                               

 (interpreting Vermont's Public Defender Act to require the agency to                                                                                                                                                                                                                                                                                                                                            pay for                                            an indigent   

 defendant's   investigative   and expert                                                                                                                                                                            witness   services   even when the                                                                                                                                                           defendant   does   not  

 accept court-appointed counsel);                                                                                                                                                         Morton v. Commonwealth                                                                                                                                    , 817 S.W.2d 218, 220-21 (Ky.                                                                                                                          

  1991) (stating in                                                                              dicta  that a defendant represented by a private                                                                                                                                                                                                                    pro bono                                                 attorney might be                                                                      

 entitled to have the public defender agency pay such additional expenses as expert testing and                                                                                                                                                                                                                                                                                                                                                                                                                   

witness fees).                                                                  



                    See also State v. Brown                                                                                                                      , 134 P.3d 753, 756, 760 (N.M. 2006) (holding, as a matter of                                                                                                                                                                                                                                                                                         

 state constitutional law, that an indigent defendant who was represented by private                                                                                                                                                                                                                                                                                                                                                                                         pro bono   

 counsel was entitled to have the public defender agency pay the fees for an expert witness                                                                                                                                                                                                                                                                                                                                                                                             

-   and that                                                        the   fact   that   the   New Mexico                                                                                                                                                 Legislature   had failed to                                                                                                                           set   aside   a   budget  

 appropriation for this purpose                                                                                                                                               did not                                            prevent the courts from taking action to obtain the                                                                                                                                                                                                                             

 funding necessary to protect these defendants' rights).                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                   - 29 -                                                                                                                                                                                                                                                    2566
  


----------------------- Page 30-----------------------

                                                                                                                                

duty to provide these other services to  all  defendants  who can not afford them -  



                                                                                                                                  

regardless of whether those defendants are represented by retained private attorneys, or  



                                                                                                                  

by private attorneys working pro  bono ,  or whether the defendants are representing  



                                                                                                                            

themselves.   But we also note that, for the most part, the applicable statutes of those  



                                                                     

states are worded differently from Alaska's.  



                                                                                                                       

                    We  also  acknowledge  that  our  Public  Defender  Act  defines  "indigent  



                                                                                                                                 

person"  as someone who "does not have sufficient assets, credit, or other means  to  



                                                                                                                                      

provide for payment of an attorney and all other necessary expenses of representation".  



                                                                                                                           

AS 18.85.170(4).  Thus, a criminal defendant who has sufficient assets to pay a private  



                                                                                                                         

attorney's retainer might still qualify for representation by the Public Defender Agency  



                                                                                                                     

(or the Office of Public Advocacy)  if  the case involves significant "other necessary  



                                                                      

expenses" that the defendant can not afford.  



                                                                                                                          

                    But it does not follow that a defendant in this situation can retain a private  



                                                                                                                                

attorney and then demand that the Public Defender Agency provide the funding for the  



                                                                                                                          

other necessary "services and facilities" of the private attorney's representation.  Rather,  



                                                                                                                        

the need for these services, and their projected cost, is part of the calculation of whether  



                                                                                                                              

the defendant is "indigent" - i.e., whether the defendant  is  entitled to demand legal  



                                                    

representation at public expense.  



                                                                                                                             

                    This matter is clarified in Alaska Criminal Rule 39.1.  Under this rule, when  



                                                                                                                           

a court assesses whether a defendant is indigent (and thus eligible for counsel at public  



                                                                                                                                 

expense),  the court is directed to evaluate the defendant's assets against the table of  



                                                                                                                    

"likely cost[s] of private representation" set forth in Rule 39.1(d)(1).   But subsection  



                                                                                                                              

(d)(2)(C) of the rule authorizes a court to adjust these "likely costs" upward if the case  



                                                                                                              

"has special characteristics that are likely to increase the cost of private representation,  



                                                                                                                           

such as the need for expert witnesses, special investigations, or expensive tests".  



                                                              - 30 -                                                          2566
  


----------------------- Page 31-----------------------

                                                                                                                                 

                    Thus, the likelihood of these additional expenses authorizes the  court to  



                                                                                                                               

relax the financial test for appointment of counsel at public expense.                                       But it does not  



                                                                                                                           

authorize the court to let the defendant retain private counsel and then order the Public  



                                                                                                                            

Defender  Agency  to  reimburse  the  defendant's  retained  private  attorney  for  these  



                                

additional expenses.  



                                                              

          Crawford's arguments based on policy  



                                                                                                                          

                    Mr. Andrew Steiner (the attorney who, at this Court's request, is arguing  



                                                                                                                 

Crawford's position) contends that there are policy reasons to construe AS 18.85.100(a)  



                                                                                                                                 

as granting indigent defendants the separate, severable rights to (1) public funding of  



                                                                                                                         

their defense attorney and (2) public funding of clerical, investigative, and expert support  



                                                                                                                         

services necessary to the litigation.   Under this proposed interpretation of the statute,  



                                                                                                                               

even  if  an  indigent  defendant  declines  legal  representation  at  public  expense,  the  



                                                                                                                             

defendant would still be entitled to public funding of whatever support services were  



                                                                              

required for the litigation of the defendant's case.  



                                                                                                                        

                    This  proposal  has  the  least   force,  and  leads  to  the  most  dubious  



                                                                                                                          

consequences,            in   instances   where   a   defendant   qualifies   as   "indigent"   under  



                                                                                                                               

AS 18.85.170(4), not because they are unable to pay a private attorney's retainer, but  



                                                                                                                           

because they are unable to afford the additional expense of the investigative and expert  



                                                                  

services described in AS 18.85.100(a)(2).  



                                                                                                                         

                    In  such  instances,  if  AS  18.85.100(a)  were  interpreted  as  Mr.  Steiner  



                                                                                                                                 

suggests, the Public Defender Agency would be required to supply support services to  



                                                                                                                               

defendants who were represented by private counsel (or the Agency would have to pay  



                                                            

a third party to supply these services).  



                                                              - 31 -                                                          2566
  


----------------------- Page 32-----------------------

                                                                                                                                 

                     We think it is unlikely that the Alaska legislature intended this result.  As  



                                                                                                                               

the Kentucky Supreme Court observed in Morton v. Commonwealth, 817 S.W.2d 218,  



                            

220 (Ky. 1991):  



                      

                                                                                                        

                               [The public defender act] is a unified enactment which  

                                                                                             

                     contemplates the necessity of a comprehensive determination  

                                                                                                                  

                     whether a defendant qualifies for the benefits provided.   ...  

                                                                                                 

                     The  statute  surely  does  not  contemplate  that  a  defendant  

                                                                                                           

                     would be indigent for purposes of [the statute] but still able  

                                                                                                            

                     to hire an attorney.  If such were the case, rarely would any  

                                                                                                         

                     defendant step forward to pay investigative costs and other  

                                                                                                           

                     services necessary for his representation.  ...  Under [the act],  

                                                                                                 

                     inability to obtain counsel and inability to obtain necessary  

                                                

                     services must go hand-in-hand.  

                      

                                                                                                                        

                     We acknowledge that Mr. Steiner's argument has more force in instances  



                                                                                                                                

where an indigent defendant is represented by a private attorney who is working pro  



                                                                                                                          

bono publico (that is, without expectation of payment), or in instances where an indigent  



                                                                                                                                    

defendant has waived their right to counsel and is proceeding pro se .  In such cases, a  



                                                                                                                           

defendant  is  asking less  of  the  Public  Defender  Agency  than  the  defendant  would  



                                                                                                                                

otherwise be entitled to - forgoing their right to legal counsel at public expense, and  



                                                                                                              

seeking public funds only for clerical, investigative, or expert services.  



                                                                                                                                   

                     But as the Public Defender Agency points  out in their  amicus brief,  if  



                                                                                                                          

AS 18.85.100(a) were interpreted in this fashion, it would frequently place the Agency  



                                                                                                                          

in an adversarial relationship with the defendant, and these conflicts between the Agency  



                                                                                               

and the defendant might often lead to interlocutory litigation.  



                                                                                                                                 

                     AS 18.85.100(a)(2) obligates the Public Defender  Agency to supply the  



                                                                                                                            

"necessary services and facilities" of a defendant's representation.  Presumably, before  



                                                                                                                          

the Public Defender Agency agreed to spend its funds for investigative or expert services  



                                                                                                                             

requested by a defendant, the Agency would wish to determine for itself whether those  



                                                              - 32 -                                                          2566
  


----------------------- Page 33-----------------------

                                                                                                                             

requested services were necessary to the litigation of the defendant's case - in the same  



                                                                                                                                  

way  the  Agency  makes  this  assessment  when  the  Agency  itself  is  representing  a  



                  

defendant.  



                                                                                                                                

                    In many (if not most) instances, this would require the Agency to study the  



                                                                                                                        

evidence in the case, evaluate the State's theory of prosecution, and assess the potential  



                                                                                                                                

available defenses - in other words, learn and analyze the defendant's case as if the  



                                                                                                                               

Agency  were  the  defendant's  attorney.                          This  would  almost  always  mean  that  the  



                                                                                                                                

defendant would have to reveal attorney-client confidences to the Agency - or, if the  



                                                                                                                                

defendant was pro se , the defendant would have to reveal equivalent confidences to the  



                                                                                                                

Agency - even though the Agency was not representing the defendant.  



                                                                                                                               

                    Moreover, if the Agency disagreed with the defendant about whether it was  



                                                                                                                                

necessary to spend money for the investigative services or expert consultations that the  



                                                                                                                                

defendant  was  requesting,  the  defendant  (as  a  practical  matter)  would  have  to  



                                                                                                                           

immediately challenge the Agency's decision - first in an application to the trial judge,  



                                                                                                                                     

and then (if the defendant was unsuccessful) in an interlocutory petition to this Court.  



                                                                                                                                 

                    Again,  we  think  it  is  unlikely  that  the  Alaska  legislature  intended  or  



                                                                                                         

envisioned this result when the legislature enacted AS 18.85.100(a).  



                                                                                                                                

                    In light of all the foregoing,  we  conclude that the legislature viewed the  



                                                                                                                             

support  services  described  in  AS  18.85.100(a)(2)  as  ancillary  to  the  right  of  legal  



                                                                                                                      

representation described in AS 18.85.100(a)(1).  Thus, the Public Defender Agency's  



                                                                                                                              

obligation  to  provide  the  services  described  in  subsection  (a)(2)  arises  from,  and  



                                                                                                                                  

hinges on, the fact that the Agency is providing legal representation to a defendant.  If  



                                                                                                                                 

an indigent defendant declines counsel at public expense and chooses to proceed pro se ,  



                                                                                                                         

the  defendant  also  declines  the  ancillary  support  services  described  in  AS  18.85.- 



                 

100(a)(2).  



                                                              - 33 -                                                          2566
  


----------------------- Page 34-----------------------

                                                                                                                   

          The argument that Alaska Administrative Rule 12(e) authorizes the court  

                                                                           

          to provide public funds for these support services  



                                                                                                                               

                    Mr.  Steiner contends that even if AS 18.85.100(a) is interpreted in this  



                                                                                                                             

fashion, Alaska Administrative Rule 12(e)(1) independently authorizes a court to order  



                                                                                                                      

public funding for clerical, investigative, and expert services when an indigent defendant  



                                                                                                                             

waives the right to counsel at public expense and is therefore not eligible to have these  



                                                                                                 

services provided at public expense under AS 18.85.100(a)(2).  



                                                                                                                         

                    The two amicus curiae defense agencies - the Public Defender Agency  



                                                                                                                              

and the Office of Public Advocacy - agree with Mr. Steiner that Administrative Rule  



                                                                                                                                

12(e)(1) authorizes a court to order public funding of these support services.  But for the  



                                                                                                               

reasons we are about to explain, we disagree with this interpretation of Administrative  



                         

Rule 12(e)(1).  



                                                                            

                    Administrative Rule 12(e)(1) reads:  



                      

                                                                                                         

                               Constitutionally Required Appointments.  If the court  

                                                                                                        

                    determines  that  counsel,  or  a  guardian  ad  litem,  or  other  

                                                                                                    

                    representative should be appointed for an indigent person,  

                                                                                                              

                    and [if the court] further determines that the appointment is  

                                                                                                          

                    not authorized by AS 18.85.100(a) or AS 44.21.410  [the  

                                                                                           

                    Office of Public Advocacy's counterpart to AS 18.85.100(a)],  

                                                                                                    

                    but in the opinion of the court [the appointment] is required  

                                                                                                              

                    by law or rule, the court shall appoint an attorney who is a  

                                                                                                           

                    member  of  the  Alaska  Bar  Association  to  provide  the  

                                                                                                            

                    required  services.              Other  persons  may  be  appointed  to  

                                                                                                       

                    provide required services to the extent permissible by law.  



                                                                                                                  

                    The first sentence of this rule clearly does not encompass the appointment  



                                                                                                                                

of clerical staff, investigators, or experts.  That first sentence is expressly limited to the  



                                                                                                                         

appointment of "counsel, or a guardian ad litem, or other representative" for an indigent  



                                                              - 34 -                                                          2566
  


----------------------- Page 35-----------------------

                                                                                                                               

person  -  and  then,  only  if  the  appointment  is  required  by  law,  and  only  if  the  



                                                                                                                   

appointment is not authorized by AS 18.85.100(a) or the Office of Public Advocacy's  



                                                      

counterpart statute, AS 44.21.410.  



                                                                                                                        

                    Mr. Steiner and the two defense agencies suggest that the second sentence  



                                                                                                                 

of Administrative Rule 12(e)(1) authorizes a court to appoint clerical staff, investigators,  



                                                                                                                                  

or experts at public expense.  This sentence reads, "Other persons may be appointed to  



                                                                                            

provide required services to the extent permissible by law."  



                                                                                                                      

                    But we must not take this sentence out of context.  The phrase "required  



                                                                                                                               

services" occurs twice in Administrative Rule 12(e)(1).  The phrase appears for the first  



                                                                                                                        

time at the end of the first sentence of the rule:  "... the court shall appoint an attorney  



                                                                                                                                

who is a member of the Alaska Bar Association to provide the required services."  



                                                                                                                      

                    Here, the phrase "required services" plainly refers to the services described  



                                                                                                                                 

earlier in that same sentence - i.e., the services of "counsel, or a guardian ad litem, or  



                                                                                                                               

other representative [of] an indigent person"  in  cases where the court concludes that  



                                                                                                                  

(1) the appointment is not authorized by the Public Defender statute, but nevertheless  



                                                                                                                                     

(2) the appointment of a representative "is required by law or rule".  (Emphasis added.)  



                                                                                                                              

                    Thus, when the supreme court used this same phrase again in the very next  



                                                                                                                                

sentence of the rule ("Other persons may be appointed to provide required services to the  



                                                                                                                            

extent permissible by law."), the supreme court presumably intended the phrase to mean  



                                                                                                                        

the same thing - i.e., a reference to the services of a representative ("counsel, guardian  



                                                                                                                                      

ad litem, or other representative") that the court considers to be "required by law or rule".  



                                                                                                                        

                    This interpretation of the second sentence of Administrative Rule 12(e)(1)  



                                                                                                                                

is supported by the legislative history of the rule.  This legislative history shows that the  



                                                                                                                  

second sentence of the rule was intended to expand a court's authority of appointment  



                                                                                                                            

under the first  sentence of the rule - by allowing the court to appoint someone other  



                                                                                                                                

than an attorney to be a person's "guardian ad litem or other representative" when the  



                                                              - 35 -                                                          2566
  


----------------------- Page 36-----------------------

court believes that the appointment of a guardian or other representative is required by                                                                                                



law or rule.               



                              Supreme    Court    Order    No.    676    (effective    April    25,    1986)    enacted  



Administrative Rule 12(e) in its present form.                                                       Prior to Supreme Court Order No. 676,                                          



the rule made no mention of "other persons" or "other representative[s]".                                                                                        It only spoke     



                                                                                                                      20  

of the appointment of counsel and guardians ad litem.                                                                      



                             The rule  was revised because,  in September 1985,  Fairbanks Standing  

                                                                                                                                                                           



Master Carol Davis wrote memoranda to Court Administration in which she expressed  

                                                                                                                                                                         



concern that there were "several areas  of the law ... where there is a need ... for the  

                                                                                                                                                                                       



appointment of an attorney or guardian ad litem", but where the appointment would not  

                                                                                                                                                                                       



be authorized by the statutes governing the Office of Public Advocacy.   According to  

                                                                                                                                                                                         



Ms. Davis, those areas included appointments of an attorney or guardian ad litem for  

                                                                                                                                                                                       



minor  children  (and  potentially  for  indigent  parents  or  other  child  custodians)  in  

                                                                                                                                                                                        



guardianship proceedings, as well as appointments for  the  respondent in a protective  

                                                                                                                                                                       

proceeding and for children or incompetent adults in probate proceedings. 21  

                                                                                                                                                                       



                             Responding to Ms. Davis's concerns, the deputy administrative director of  

                                                                                                                                                                                          



the Alaska Court System (Stephanie J. Cole) conceded that the law, as it currently stood,  

                                                                                                                                                                                 



did not appear to allow the Office of Public Advocacy to make an appointment in these  

                                                                                                                                                                                   



circumstances.  Ms. Cole concluded that a court would probably be required to appoint  

                                                                                                                                                                              



                                                                                22  

a private attorney in these instances.  

                                                           

                                                                                     



       20      See  Supreme Court Order No. 652 (effective July 1, 1985).                                                                   



       21  

                                                                                                                                                                                 

               Memoranda of Carol Davis dated September 11 & 24, 1985 (contained in the Alaska  

                                                                                                                                                  

Court Rules Attorney's legislative file on Administrative Rule 12(e)).  



       22  

                                                                                                                                                                                  

               Memorandum of Stephanie  J.  Cole dated October 8, 1985 (contained in the Court  

                                                           

Rules Attorney's legislative file).  



                                                                                         - 36 -                                                                                      2566
  


----------------------- Page 37-----------------------

                              In January 1986, Ms. Cole issued a memorandum that contained a proposed                                                                     



new version of Administrative Rule 12 to deal with this problem.                                                                                 Ms. Cole's proposal        



for Rule 12(e) is essentially a                                 verbatim  version of the current rule.                                            The only difference     



is that the second sentence of Ms. Cole's 1986                                                      proposalused                   the phrase "non-attorneys",  



while the second sentence of the enacted version of Rule 12(e) uses the phrase "other                                                                                            



                      23  

persons".       



                              In  April,  following the supreme court conference at which Ms.  Cole's  

                                                                                                                                                                                



proposal was discussed (and adopted almost verbatim), the generalcounselfor the Court  

                                                                                                                                                                                   



System, attorney Karla L. Forsythe, wrote a memorandum describing the purpose of the  

                                                                                                                                                                                        



new Administrative Rule 12(e).  In her memorandum, Ms. Forsythe stated that the new  

                                                                                                                                                                                      



rule "clarifies the circumstances in which persons entitled to representation at public  

                                                                                                                                                                                 



expense will be represented by counsel or other persons appointed and compensated by  

                                                                                                                                                                                          



                                                                                                                                                                                           24  

the  court  rather  than  by  the  public  defender  or  the  office  of  public  advocacy."  

                                                                                                                                                                                                 



(Emphasis added.)  

                                           



                              This legislative history shows that the second sentence of Administrative  

                                                                                                                                                               



Rule 12(e) was meant to modify and enhance the power of appointment described in the  

                                                                                                                                                                                        



first sentence of the rule.   The first sentence authorizes a court to appoint someone to  

                                                                                                                                                                                           



serve as an indigent person's representative - either as their "counsel",  or as their  

                                                                                                                                                                                     



"guardian ad litem", or in some "other representative" capacity.  The second sentence of  

                                                                                                                                                                                           



the rule was intended to expand the pool of people who might be appointed to serve in  

                                                                                                                                                                                           



this representative capacity - not just attorneys, but "other persons".  

                                                                                                                                                            



       23      Memorandum of Stephanie J.                                      Cole dated January 23, 1986 (contained in the Court                                                 



Rules Attorney's legislative file).                                    



       24  

                                                                                                                                                                                    

               Memorandum of Karla L. Forsythe dated April 7, 1986 (contained in the Court Rules  

                                                          

Attorney's legislative file).  



                                                                                          - 37 -                                                                                      2566
  


----------------------- Page 38-----------------------

                                                                                                                                

                    For  these reasons, we reject the suggestion that the second sentence  of  



                                                                                                                          

Administrative Rule 12(e)(1) was intended to give courts the authority to appoint people  



                                                                                                                        

to provide clerical services, investigative services, or expert services to indigent criminal  



                                              

defendants at public expense.  



                                                                                                                               

                    We  acknowledge  that   subsection  (e)(5)   of   Administrative  Rule  12  



                                                                                                                   

("Compensation")   speaks  of   compensation  for  "necessary  interpreter   services",  



                                                                                                                            

"investigation",  "expert witnesses",  and "necessary travel and per diem".                                         See  Rule  



                                                                                                                            

12(e)(5)(E).  But given the overall context of Administrative Rule 12(e), it seems clear  



                                                                                                                             

that the "compensation" addressed in subsection (e)(5) is the compensation to be paid  



                                                                                                         

to the representatives appointed under subsection (e)(1) of the rule.  



                                                                                                                             

                    Under        subsection         (e)(5)(E),       those      representatives            can     apply      for  



                                                                                                                     

reimbursement of the expenses they have incurred for "necessary interpreter services",  



                                                                                                                                 

"investigation", "expert witnesses", and "necessary travel and per diem".   But there is  



                                                                                                                                

no  indication  that  subsection  (e)(5)(E)  was  intended  to  authorize  a  trial  court  to  



                                                                                                                             

independently appoint investigators or expert witnesses for indigent litigants (both civil  



                                                                                                                           

and criminal litigants) when no representative has been appointed for the litigant under  



                                             

subsection (e)(1) of the rule.  



                                                                                                                                

                    We therefore conclude that subsection (e)(5)(E) of Administrative Rule 12  



                                                                                                                         

was not intended to give a court independent authority to hire investigators and experts  



                                                                                                                          

for indigent defendants who have waived their right to court-appointed counsel.  



                                                             

          The two questions that we leave unanswered  



                                                                                                                               

                    Because Crawford never made the threshold showing required by Ake and  



                                                                                                                              

Caldwell, we need not  decide what the law would have required if he had made this  



                                                             - 38 -                                                          2566
  


----------------------- Page 39-----------------------

 showing.   As we indicated at the beginning of this opinion, this means that there are two                                                                                                                                                                                                                                                                    



 significant issues that we leave unanswered.                                                                                                                                               



                                                         The   first   question   is   whether   it   is   constitutional for                                                                                                                                                                  Alaska   to   require  



indigent defendants who want clerical, investigative, or expert litigation support services                                                                                                                                                                                                                                                   



to accept legal                                                   representation through the Public Defender Agency or the Office of                                                                                                                                                                                                                                  



Public Advocacy as a pre-condition of receiving these support services at public expense.                                                                                                                                                                                                                                                                                           



                                                         And if it is                               not  constitutional to require indigent defendants in this situation                                                                                                                                                                    



to accept legal representation                                                                                                   through the Public Defender Agency or the Office of                                                                                                                                                                                  



Public Advocacy in order to receive public funding for clerical support, investigative                                                                                                                                                                                                                                     



 services, and expert evaluations and testimony, then a second question arises:                                                                                                                                                                                                                                                             What is   



the mechanism by which the State of Alaska will provide funding for necessary litigation                                                                                                                                                                                                                                                    



 support   services   under   Ake   v.   Oklahoma   when   an   indigent   defendant   rejects   legal  



representation at public expense?                                                                                                              



                                                         When   we   called   for   supplemental   briefing   in   Crawford's   appeal,   we  



anticipated that we would address these issues.                                                                                                                                                               But because Crawford's case can be                                                                                                                     



resolved without reaching these                                                                                                            issues,   we conclude that it is wiser to abstain from                                                                                                                                                         

                                                                25          We say this because, in large measure, the solution to these problems  

deciding them.                                                                                                                                                                                                                                                                                                                          



is  a  political matter that should be addressed by the legislature.   We believe that  we  

                                                                                                                                                                                                                                                                                                                                                                 



 should not address these questions further until the legislature has had an opportunity to  

                                                                                                                                                                                                                                                                                                                                                                       



consider them and to take action.  

                                                                                                                                               



              25             See Perry v. State                                                      , 429 P.2d 249, 251-52 (Alaska 1967) (declaring that a court should                                                                                                                                                                              



not pass on a constitutional issue unless the                                                                                                                                         determination of that issue is essential to the                                                                                                                              

court's decision of the case);                                                                                         Robins v. Anchorage                                                                      , 711 P.2d 550, 552 (Alaska App. 1985)                                                                                                 

(declining to reach a constitutional issue because the facts of the case provided an alternative                                                                                                                                                                                                                                       

basis for deciding the case).                                                                                     



                                                                                                                                                                             - 39 -                                                                                                                                                                            2566
  


----------------------- Page 40-----------------------

Conclusion  



                      The judgement of the superior court is AFFIRMED.                                                                                                                              



                                                                                                               - 40 -                                                                                                                                   2566
  

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