In a Juneau courtroom in January, a man calling in from Lemon Creek Correctional Center begged to go to trial. Phillip Drummer was charged with a domestic violence assault in December of 2023. The prosecutor was ready for trial, too. Drummer’s “right to a speedy trial” timeframe was closing.
But his defense attorney, Rex Butler, didn’t have any space in his schedule because of all his other cases.
Juneau District Attorney Whitney Bostick, who is prosecuting the case, said if Drummer wasn’t willing to wait six weeks for his attorney, he could represent himself.
“Ms. Bostick raised the possibility, Mr. Drummer, of you proceeding pro se, without an attorney, in this matter,” presiding Judge Larry Woolford told the defendant.
Drummer didn’t like that idea.
“Your honor, this is totally not fair to me. I don’t understand why the court won’t make sure that I’m adequately represented,” he said. “Here I am pretty much being forced to have to either represent myself or wait another two months in jail.”
At the end of the hearing, Judge Woolford decided it would be best to wait.
“I think the only thing that makes sense is to set this for a date-certain trial to start March 3,” Woolford said.
Pretrial delays leave victims and defendants in limbo
This hearing was a snapshot of how pretrial delays have affected Alaska courts: victims, witnesses and defendants are often waiting years for a resolution, and their lives are put on hold in the meantime.
It also leaves untried defendants – people accused of crimes but presumed innocent until found otherwise by the court – sitting in jail.
Anchorage Daily News and ProPublica reported in January that these delays amount to extreme wait times for felony trials. The average wait to resolve felonies has almost tripled in Alaska in the past decade, from just over one year on average to close to three years.
The Sixth Amendment to the U.S. Constitution says “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
It has two time limits: that an indictment, when a grand jury formally accuses the defendant of the crime, or an arraignment, when the defendant is told of what they are being charged with, must happen within a month of arrest, and that a trial must start within 120 days of the indictment or arraignment.
But the Constitution also allows for exceptions.
Roughly half the people sitting in Alaska prisons are awaiting trial. It’s been that way for several years now – especially after the pandemic halted most jury trials for two years.
Thatʼs about 2,000 individuals who are legally innocent. And according to the Alaska Department of Corrections, incarceration costs the state $200 per person per day. It costs the state roughly $400,000 per day to incarcerate people who have yet to be convicted.
In February, more than half of the inmates in Juneau’s Lemon Creek Correctional Center hadn’t been sentenced yet.
Alaska courts’ response to ‘extraordinary’ delays
In her State of the Judiciary address last month, Alaska Chief Justice Susan Carney acknowledged the extremely delayed cases highlighted in recent media coverage.
“The delays in those cases are extraordinary,” she said.
She said C and B level felonies — the kind Drummer has been charged with — typically resolve within 10 months. Since his initial arraignment, Drummer has waited about 14 months.
Carney said Alaska’s court system is working to limit pretrial delays.
“Presiding judges in each judicial district have issued orders limiting the number of continuances in a case and limiting the number the entire time that a case can be delayed absent truly extraordinary circumstances,” she said.
Overburdened defense attorneys … or intentional delays?
Meanwhile, Drummer’s Anchorage-based lawyer, Rex Butler, has over 300 active cases across the state. He says his caseload is so high because he takes on cases that the state’s Public Defender Agency can’t represent due to conflicts of interest, like Drummer’s.
Butler sometimes gets cases that have been in the court system for a few years already.
“We pick up the case file, and now the file is on fire,” he said.
Even though the case is new to Butler, the court is eager to see it resolved.
He said that sexual assault and domestic violence cases have become a lot more complex in his 40 years as a defense attorney.
Felony cases take a lot longer to prepare for, with the risk of conviction carrying greater consequences, and they don’t move through the trial system nearly as quickly.
That causes them to pile up on attorneys’ desks.
“The practice of criminal law has gotten much more complicated, involved and it’s tedious,” Butler said. “It’s always been very emotional.”
Butler says fewer and fewer lawyers want to take on cases that involve alleged heinous crimes, like murder and sexual assault.
According to Juneau’s District Attorney Whitney Bostick, delays make it harder for prosecutors to prove to a jury “beyond a reasonable doubt” that a defendant committed a crime.
“In general, the state’s ability to prove a case becomes more difficult the longer the case is delayed,” she said.
She said witnesses get frustrated with delays, or their memories fade. Sometimes, witnesses die before a case reaches trial.
Some cases now take more time to both defend and prosecute, Bostick said, as technological advancements mean many cases have more evidence than they did even 10 years ago.
The ADN/ProPublica investigation found that, in some instances, pretrial delays are a tactic on the part of a defense team to stall a case so witnesses’ memories fade.
And, Bostick said, these delays take a toll on the victims.
“They’ve gone through the unthinkable,” she said. “And every time there’s a hearing, whether it be a bail hearing or a continuation of the case, it brings that trauma that they experienced back, front and center.”
Sometimes, victims don’t want to continue with the case after years of delay, she said. They lose hope.
Phillip Drummer – the defendant who was begging to go to trial – has multiple previous assault and DV charges starting in the late 1990s. In this case, though, he hasn’t been found guilty.
And he’s still in jail in the meantime, even though he’s not serving a sentence.
For now, Drummer’s case continues in court limbo. His eleventh pre-trial conference is scheduled for March 28.
Correction: An earlier version of this story incorrectly reported the amount of time a trial must start under Rule 45 in Alaska.
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