Off to Alaska...

AKR · Post by **AKR** » Thu Jan 28, 2021 6:59 pm

The backstory on the gun, at least from the outside of what I can see, seems kind of sloppy for the state.

marcs · Post by **marcs** » Thu Jan 28, 2021 8:41 pm

awesome diary, keep it coming. You get this guy off, you have to sell the story to TV or the movies.

JimHow · Post by **JimHow** » Fri Jan 29, 2021 1:28 am

From Maine to Alaska: Pretrial Motions in the Sophie Sergie Murder Cold Case.

Day One: Monday, January 25, 2021

It has been nearly two years since Steven Downs was arrested for the 1993 cold case murder of University of Alaska Fairbanks student Sophie Sergie. The Auburn, Maine, native has spent most of that time at the Fairbanks Correctional Center, a facility that makes the Androscoggin County Jail look like the Ritz Carlton.

The defense team has filed numerous pretrial motions, including eleven that attack the forensic evidence and botched investigation by Alaska State Troopers homicide detectives over the past twenty-eight years. Because of Covid, the hearings on these motions have been continued twice and have been pending for over a year.

After several telephonic conferences with assigned Alaska Superior Court Judge Thomas Temple and the Alaska prosecutor, we decided it was time to proceed on the motions... in the middle of a raging pandemic.

The Maine lawyers on the defense team — Jesse Archer, Stephen Dassatti, and I — all got tested yesterday to comply with Alaska regulations. Jesse got his negative results this morning, mine came in as we were boarding the late afternoon flight from Logan to Seattle. It was not without a little trepidation as I opened the link in my text message from CVS: a positive test meant that I couldn’t enter the state of Alaska and would have to participate by video. Would it make more sense to get off the plane and drive back to Maine? Luckily, the results were negative. We’ll soon be joining the fourth lawyer on the defense team: Fairbanks attorney Frank Spaulding.

We just checked into the airport Hilton here in Seattle. Steve just got his results: Negative. It's on to Fairbanks tomorrow!

Day Two: Tuesday, January 26, 2021

We started the second leg of the trip over breakfast at the airport Hilton in Seattle, downloading (or is it uploading?) our negative Covid test results into the Alaska state travel portal. It is a task that seemingly requires an advanced computer science degree but fortunately Jesse was able to walk us other two old timers through it after about and hour, and it’s off to balmy Fairbanks.

Our first task upon arrival in Fairbanks is to hit the local Office Max store. We are setting up headquarters at the SpringHill Suites across from the courthouse in bleak downtown Fairbanks, and we need a cheap printer. There are 8,000 pages of discovery in this case, plus dozens of audio and video files. There will be numerous exhibits presented, some which were printed up before we left, but most which will be printed in Fairbanks.

We were required to arrive five days early to comply with the court system’s Covid requirements, which is actually kind of a good thing because it gives us five full days to put in 10-12 hours per day of final preparation on the case. Before I left I completely cleared my schedule and told all of my clients that I would be unavailable for two weeks.

We arrived in Fairbanks on a beautiful sunny afternoon flight, minus-20 but no wind, a dry cold, not unpleasant during the brief entry and exit from the taxi. Jimmy, the pleasant young man who screened us through the airport with our negative test results, was very familiar with the Sophie Sergie case and thinks we have our work cut out for us. In fact, he doesn’t see how we are going to get this guy off. He wished us well, though: “You guys must be good lawyers. Welcome to Fairbanks!”

Day Three: Wednesday, January 27, 2021

I started our first full day in Fairbanks with a little 6 a.m. walk in the vicinity of the hotel, minus-19 in the early morning darkness. I actually found it quite pleasant, again, it is a very dry cold, and there has been absolutely no wind. After about ten minutes my face above the mask began to freeze, and I turned back. My L.L. Bean Baxter coat, though, advertised as good for up to minus-40, delivered as promised.

I was last in Fairbanks in August 2019, for the initial appearance of Steven Downs on the murder and sexual assault charges. It is a wild place, a cross between Wild West honky tonk and rugged grunge craft beer culture, a final frontier, end of the earth feel. Everybody has a story.

Today is the first of five full days of preparation for next week’s hearings. As much as we thrive on going to trial, we are under no illusions. This is going to be a tough case to win any place in Alaska, but especially in Fairbanks. This crime has hovered over the community for nearly three decades.

We have eleven motions pending, nine of which are scheduled for hearing next week. First up on the list for Monday is a hearing on our motion to suppress statements and evidence of a gun and knife that were seized from Steven’s home in Auburn, Maine. The prosecution believes that these weapons were used in the crime twenty-seven years ago, but they are wrong. We don’t expect to win every battle next week, but our goal is to try to weaken the state’s case as much as possible.

Darkness is descending, the sky is clear. We should be able to see the aurora borealis tonight.

Day Four: Thursday, January 28, 2021

The breakfast area here at the Fairbanks Marriott Springhill Suites is busy each morning right at 6:30 a.m., when they begin to serve. Yesterday it was six young French women hanging out in the lobby, geared up like they were ready for a big ski excursion. Today it was a group of hunters, I thought they had southern accents, but maybe not.

Temps continue in the near twenty below range, my morning walks into the dry air are becoming one of my favorite parts of the day.

Our taxi driver from the airport was telling us about the caribou hunting season, residents are allowed two tags this year to thin out the herd. Stephen joked about my famous night hunting case that I prosecuted when we both joined the Maine attorney general’s office as young lawyers back in 1986, it was my first jury trial, for some reason it got all kinds of local attention, the headline at the top of the front page read: “Belfast Man Convicted of Night Hunting.” Our taxi driver here in Alaska told us night hunting is not really enforced up here at the arctic circle, as darkness has a different relevance from most other places.

The sun has been rising by about 10:00 a.m., and setting by about 5:00 p.m. And it’s cold. Our Uber guy yesterday explained the crack across his windshield as common in the sub-zero temps, and, like night hunting, not really enforced by local police. I expected a lot more snow. “We don’t get as much as you would think,” he said, “because it’s very dry up here.”

Today was a day of locking ourselves in our rooms and grinding though preparations for the motion hearings next week. This is a big “DNA case,” for sure, but it’s also going to come down to alternate suspects. The University of Alaska Fairbanks was a very dangerous place back in 1993, with no security and lots of dangerous characters around. One of them is sitting in the Spring Creek Correctional Center, in Seward, having killed another man subsequent to the Sophie Sergie homicide. We believe he also killed Sophie, and are petitioning the judge to allow us to present him as an alternate suspect at trial. We should have a better idea whether we will be allowed to do so by this time next week.

https://www.youtube.com/watch?v=sa7_RyCA_Zg
IMG_0122.MOV

+++++

For more information on the case, follow Christopher Williams’s reporting at the Sun-Journal:

https://www.google.com/url?client=inter ... aQlBTrvDr4

Kathryn Miles from Down East Magazine wrote an interesting article focusing on the genetic genealogy angle:

https://downeast.com/issues-politics/dn ... %26hl%3Den

JCNorthway · Post by **JCNorthway** » Fri Jan 29, 2021 3:43 am

That Kathryn Miles article highlights a lot of the critical issues around the issue of using DNA - especially when obtained without the permission of the "accused."

I stay as far away from the companies that do this as I can. But I'm sure I have some really distant (or not) relatives somewhere who have submitted samples for testing. As a result, I'm not longer anonymous.

OrlandoRobert · Post by **OrlandoRobert** » Fri Jan 29, 2021 12:36 pm

Thanks for the blog updates, Jimbo. These are great reads.

JimHow · Post by **JimHow** » Sat Jan 30, 2021 5:49 am

From Maine to Alaska: Pretrial Motions in the Sophie Sergie Murder Cold Case.

Day One: Monday, January 25, 2021

It has been nearly two years since Steven Downs was arrested for the 1993 cold case murder of University of Alaska Fairbanks student Sophie Sergie. The Auburn, Maine, native has spent most of that time at the Fairbanks Correctional Center, a facility that makes the Androscoggin County Jail look like the Ritz Carlton.

The defense team has filed numerous pretrial motions, including eleven that attack the forensic evidence and botched investigation by Alaska State Troopers homicide detectives over the past twenty-eight years. Because of Covid, the hearings on these motions have been continued twice and have been pending for over a year.

After several telephonic conferences with assigned Alaska Superior Court Judge Thomas Temple and the Alaska prosecutor, we decided it was time to proceed on the motions... in the middle of a raging pandemic.

The Maine lawyers on the defense team — Jesse Archer, Stephen Dassatti, and I — all got tested yesterday to comply with Alaska regulations. Jesse got his negative results this morning, mine came in as we were boarding the late afternoon flight from Logan to Seattle. It was not without a little trepidation as I opened the link in my text message from CVS: a positive test meant that I couldn’t enter the state of Alaska and would have to participate by video. Would it make more sense to get off the plane and drive back to Maine? Luckily, the results were negative. We’ll soon be joining the fourth lawyer on the defense team: Fairbanks attorney Frank Spaulding.

We just checked into the airport Hilton here in Seattle. Steve just got his results: Negative. It's on to Fairbanks tomorrow!

Day Two: Tuesday, January 26, 2021

We started the second leg of the trip over breakfast at the airport Hilton in Seattle, downloading (or is it uploading?) our negative Covid test results into the Alaska state travel portal. It is a task that seemingly requires an advanced computer science degree but fortunately Jesse was able to walk us other two old timers through it after about and hour, and it’s off to balmy Fairbanks.

Our first task upon arrival in Fairbanks is to hit the local Office Max store. We are setting up headquarters at the SpringHill Suites across from the courthouse in bleak downtown Fairbanks, and we need a cheap printer. There are 8,000 pages of discovery in this case, plus dozens of audio and video files. There will be numerous exhibits presented, some which were printed up before we left, but most which will be printed in Fairbanks.

We were required to arrive five days early to comply with the court system’s Covid requirements, which is actually kind of a good thing because it gives us five full days to put in 10-12 hours per day of final preparation on the case. Before I left I completely cleared my schedule and told all of my clients that I would be unavailable for two weeks.

We arrived in Fairbanks on a beautiful sunny afternoon flight, minus-20 but no wind, a dry cold, not unpleasant during the brief entry and exit from the taxi. Jimmy, the pleasant young man who screened us through the airport with our negative test results, was very familiar with the Sophie Sergie case and thinks we have our work cut out for us. In fact, he doesn’t see how we are going to get this guy off. He wished us well, though: “You guys must be good lawyers. Welcome to Fairbanks!”

Day Three: Wednesday, January 27, 2021

I started our first full day in Fairbanks with a little 6 a.m. walk in the vicinity of the hotel, minus-19 in the early morning darkness. I actually found it quite pleasant, again, it is a very dry cold, and there has been absolutely no wind. After about ten minutes my face above the mask began to freeze, and I turned back. My L.L. Bean Baxter coat, though, advertised as good for up to minus-40, delivered as promised.

I was last in Fairbanks in August 2019, for the initial appearance of Steven Downs on the murder and sexual assault charges. It is a wild place, a cross between Wild West honky tonk and rugged grunge craft beer culture, a final frontier, end of the earth feel. Everybody has a story.

Today is the first of five full days of preparation for next week’s hearings. As much as we thrive on going to trial, we are under no illusions. This is going to be a tough case to win any place in Alaska, but especially in Fairbanks. This crime has hovered over the community for nearly three decades.

We have eleven motions pending, nine of which are scheduled for hearing next week. First up on the list for Monday is a hearing on our motion to suppress statements and evidence of a gun and knife that were seized from Steven’s home in Auburn, Maine. The prosecution believes that these weapons were used in the crime twenty-seven years ago, but they are wrong. We don’t expect to win every battle next week, but our goal is to try to weaken the state’s case as much as possible.

Darkness is descending, the sky is clear. We should be able to see the aurora borealis tonight.

Day Four: Thursday, January 28, 2021

The breakfast area here at the Fairbanks Marriott Springhill Suites is busy each morning right at 6:30 a.m., when they begin to serve. Yesterday it was six young French women hanging out in the lobby, geared up like they were ready for a big ski excursion. Today it was a group of hunters, I thought they had southern accents, but maybe not.

Temps continue in the near twenty below range, my morning walks into the dry air are becoming one of my favorite parts of the day.

Our taxi driver from the airport was telling us about the caribou hunting season, residents are allowed two tags this year to thin out the herd. Stephen joked about my famous night hunting case that I prosecuted when we both joined the Maine attorney general’s office as young lawyers back in 1986, it was my first jury trial, for some reason it got all kinds of local attention, the headline at the top of the front page read: “Belfast Man Convicted of Night Hunting.” Our taxi driver here in Alaska told us night hunting is not really enforced up here at the arctic circle, as darkness has a different relevance from most other places.

The sun has been rising by about 10:00 a.m., and setting by about 5:00 p.m. And it’s cold. Our Uber guy yesterday explained the crack across his windshield as common in the sub-zero temps, and, like night hunting, not really enforced by local police. I expected a lot more snow. “We don’t get as much as you would think,” he said, “because it’s very dry up here.”

Today was a day of locking ourselves in our rooms and grinding though preparations for the motion hearings next week. This is a big “DNA case,” for sure, but it’s also going to come down to alternate suspects. The University of Alaska Fairbanks was a very dangerous place back in 1993, with no security and lots of dangerous characters around. One of them is sitting in the Spring Creek Correctional Center, in Seward, having killed another man subsequent to the Sophie Sergie homicide. We believe he also killed Sophie, and are petitioning the judge to allow us to present him as an alternate suspect at trial. We should have a better idea whether we will be allowed to do so by this time next week.

https://www.youtube.com/watch?v=sa7_RyCA_Zg
IMG_0122.MOV

Day Five: Friday, January 29, 2021

It’s interesting, I first came up here to Fairbanks back in late August 2019, for the initial appearance and fruitless bail argument on behalf of my client, Steven Downs. Steve had been dragged from his quiet home in Auburn, Maine, extradited across five of the country’s worst federal prisons over a Kafkaesque, nearly three month odyssey, landing finally here at the Fairbanks Correctional Center, some 4,500 miles away from home. All because of what an Alaska crime lab scientist from 1993 described as “a few spermatozoa” molecules from a botched crime scene more than a quarter century in the past.

My first anecdotal observations of Fairbanks back in 2019 were not positive. But then again, I was here for like three nights, spending most of my time in court and at the jail. We’ve had a chance to better observe the place here in the middle of winter. It’s a pretty hip place! We’ve been dining well, tonight on Jinhi Bay Alaskan oysters, at this cool little bistro downstairs at our hotel. Our waitress last night, who has travelled around the world and keeps coming back, described the people here as “wonderfully weird.” Jesse, a sailor and ship captain before becoming a lawyer, equates Fairbanks to other end-of-the-earth destinations like Bar Harbor, Key West, and Beaufort, NC. Everybody here has beards and tattoos, we are all looking pretty grungy ourselves, I’m trying to decide whether to shave before court next week… nobody would know, we are required to wear masks anyway. I know what big Don Hornblower’s answer would be.

We had our first interaction this Friday evening with the Alaska prosecutor, Jenna Gruenstein, since getting here, emailing back and forth about usual stuff like order of witnesses, etc. She’s pleasant enough, but… she wants this guy… bad. We have our hands full.

Hoping to get some views of the northern lights before we leave, but in the meantime I’ve added a few pictures to the gallery.

OrlandoRobert · Post by **OrlandoRobert** » Sat Jan 30, 2021 12:45 pm

Jim -

Will any part of this case be streamed?

Thanks for the blogging, these are cool reads. Love the Kafka reference.

DavidG · Post by **DavidG** » Sat Jan 30, 2021 2:40 pm

Really enjoying these.

Good luck!

And masks work better on a smooth face.

stefan · Post by **stefan** » Sat Jan 30, 2021 4:07 pm

You know it is really our BD when you see a glass of red wine beside an order of oysters on the half shell.

JimHow · Post by **JimHow** » Sat Jan 30, 2021 4:28 pm

2017 Ridge Geyserville!

Not sure about the streaming, OB, I think our local reporter in Maine has made arrangements to listen in.

Nicklasss · Post by **Nicklasss** » Sat Jan 30, 2021 9:23 pm

Enjoy the read. Won't be easy i guess. Keep them coming Jim.

And i agree with stefan, Jim is one of the very few persons that drinks (and seems to prefer) red with seafood. MC last night had a sip of the 2013 Quinta do Convento Douro with a sea scallop. She immediately said that she would never do it again.

Nic

JimHow · Post by **JimHow** » Sun Jan 31, 2021 4:53 pm

From Maine to Alaska: Pretrial Motions in the Sophie Sergie Murder Cold Case

Day One: Monday, January 25, 2021

It has been nearly two years since Steven Downs was arrested for the 1993 cold case murder of University of Alaska Fairbanks student Sophie Sergie. The Auburn, Maine, native has spent most of that time at the Fairbanks Correctional Center, a facility that makes the Androscoggin County Jail look like the Ritz Carlton.

The defense team has filed numerous pretrial motions, including eleven that attack the forensic evidence and botched investigation by Alaska State Troopers homicide detectives over the past twenty-eight years. Because of Covid, the hearings on these motions have been continued twice and have been pending for over a year.

After several telephonic conferences with assigned Alaska Superior Court Judge Thomas Temple and the Alaska prosecutor, we decided it was time to proceed on the motions... in the middle of a raging pandemic.

The Maine lawyers on the defense team — Jesse Archer, Stephen Dassatti, and I — all got tested yesterday to comply with Alaska regulations. Jesse got his negative results this morning, mine came in as we were boarding the late afternoon flight from Logan to Seattle. It was not without a little trepidation as I opened the link in my text message from CVS: a positive test meant that I couldn’t enter the state of Alaska and would have to participate by video. Would it make more sense to get off the plane and drive back to Maine? Luckily, the results were negative. We’ll soon be joining the fourth lawyer on the defense team: Fairbanks attorney Frank Spaulding.

We just checked into the airport Hilton here in Seattle. Steve just got his results: Negative. It's on to Fairbanks tomorrow!

Day Two: Tuesday, January 26, 2021

We started the second leg of the trip over breakfast at the airport Hilton in Seattle, downloading (or is it uploading?) our negative Covid test results into the Alaska state travel portal. It is a task that seemingly requires an advanced computer science degree but fortunately Jesse was able to walk us other two old timers through it after about and hour, and it’s off to balmy Fairbanks.

Our first task upon arrival in Fairbanks is to hit the local Office Max store. We are setting up headquarters at the SpringHill Suites across from the courthouse in bleak downtown Fairbanks, and we need a cheap printer. There are 8,000 pages of discovery in this case, plus dozens of audio and video files. There will be numerous exhibits presented, some which were printed up before we left, but most which will be printed in Fairbanks.

We were required to arrive five days early to comply with the court system’s Covid requirements, which is actually kind of a good thing because it gives us five full days to put in 10-12 hours per day of final preparation on the case. Before I left I completely cleared my schedule and told all of my clients that I would be unavailable for two weeks.

We arrived in Fairbanks on a beautiful sunny afternoon flight, minus-20 but no wind, a dry cold, not unpleasant during the brief entry and exit from the taxi. Jimmy, the pleasant young man who screened us through the airport with our negative test results, was very familiar with the Sophie Sergie case and thinks we have our work cut out for us. In fact, he doesn’t see how we are going to get this guy off. He wished us well, though: “You guys must be good lawyers. Welcome to Fairbanks!”

Day Three: Wednesday, January 27, 2021

I started our first full day in Fairbanks with a little 6 a.m. walk in the vicinity of the hotel, minus-19 in the early morning darkness. I actually found it quite pleasant, again, it is a very dry cold, and there has been absolutely no wind. After about ten minutes my face above the mask began to freeze, and I turned back. My L.L. Bean Baxter coat, though, advertised as good for up to minus-40, delivered as promised.

I was last in Fairbanks in August 2019, for the initial appearance of Steven Downs on the murder and sexual assault charges. It is a wild place, a cross between Wild West honky tonk and rugged grunge craft beer culture, a final frontier, end of the earth feel. Everybody has a story.

Today is the first of five full days of preparation for next week’s hearings. As much as we thrive on going to trial, we are under no illusions. This is going to be a tough case to win any place in Alaska, but especially in Fairbanks. This crime has hovered over the community for nearly three decades.

We have eleven motions pending, nine of which are scheduled for hearing next week. First up on the list for Monday is a hearing on our motion to suppress statements and evidence of a gun and knife that were seized from Steven’s home in Auburn, Maine. The prosecution believes that these weapons were used in the crime twenty-seven years ago, but they are wrong. We don’t expect to win every battle next week, but our goal is to try to weaken the state’s case as much as possible.

Darkness is descending, the sky is clear. We should be able to see the aurora borealis tonight.

Day Four: Thursday, January 28, 2021

The breakfast area here at the Fairbanks Marriott Springhill Suites is busy each morning right at 6:30 a.m., when they begin to serve. Yesterday it was six young French women hanging out in the lobby, geared up like they were ready for a big ski excursion. Today it was a group of hunters, I thought they had southern accents, but maybe not.

Temps continue in the near twenty below range, my morning walks into the dry air are becoming one of my favorite parts of the day.

Our taxi driver from the airport was telling us about the caribou hunting season, residents are allowed two tags this year to thin out the herd. Stephen joked about my famous night hunting case that I prosecuted when we both joined the Maine attorney general’s office as young lawyers back in 1986, it was my first jury trial, for some reason it got all kinds of local attention, the headline at the top of the front page read: “Belfast Man Convicted of Night Hunting.” Our taxi driver here in Alaska told us night hunting is not really enforced up here at the arctic circle, as darkness has a different relevance from most other places.

The sun has been rising by about 10:00 a.m., and setting by about 5:00 p.m. And it’s cold. Our Uber guy yesterday explained the crack across his windshield as common in the sub-zero temps, and, like night hunting, not really enforced by local police. I expected a lot more snow. “We don’t get as much as you would think,” he said, “because it’s very dry up here.”

Today was a day of locking ourselves in our rooms and grinding though preparations for the motion hearings next week. This is a big “DNA case,” for sure, but it’s also going to come down to alternate suspects. The University of Alaska Fairbanks was a very dangerous place back in 1993, with no security and lots of dangerous characters around. One of them is sitting in the Spring Creek Correctional Center, in Seward, having killed another man subsequent to the Sophie Sergie homicide. We believe he also killed Sophie, and are petitioning the judge to allow us to present him as an alternate suspect at trial. We should have a better idea whether we will be allowed to do so by this time next week.

https://www.youtube.com/watch?v=sa7_RyCA_Zg
IMG_0122.MOV

Day Five: Friday, January 29, 2021

It’s interesting, I first came up here to Fairbanks back in late August 2019, for the initial appearance and fruitless bail argument on behalf of my client, Steven Downs. Steve had been dragged from his quiet home in Auburn, Maine, extradited across five of the country’s worst federal prisons over a Kafkaesque, nearly three month odyssey, landing finally here at the Fairbanks Correctional Center, some 4,500 miles away from home. All because of what an Alaska crime lab scientist from 1993 described as “a few spermatozoa” molecules from a botched crime scene more than a quarter century in the past.

My first anecdotal observations of Fairbanks back in 2019 were not positive. But then again, I was here for like three nights, spending most of my time in court and at the jail. We’ve had a chance to better observe the place here in the middle of winter. It’s a pretty hip place! We’ve been dining well, tonight on Jinhi Bay Alaskan oysters, at this cool little bistro downstairs at our hotel. Our waitress last night, who has travelled around the world and keeps coming back, described the people here as “wonderfully weird.” Jesse, a sailor and ship captain before becoming a lawyer, equates Fairbanks to other end-of-the-earth destinations like Bar Harbor, Key West, and Beaufort, NC. Everybody here has beards and tattoos, we are all looking pretty grungy ourselves, I’m trying to decide whether to shave before court next week… nobody would know, we are required to wear masks anyway. I know what big Don Hornblower’s answer would be.

We had our first interaction this Friday evening with the Alaska prosecutor, Jenna Gruenstein, since getting here, emailing back and forth about usual stuff like order of witnesses, etc. She’s pleasant enough, but… she wants this guy… bad. We have our hands full.

Hoping to get some views of the northern lights before we leave, but in the meantime I’ve added a few pictures to the gallery.

Days Six and Seven: January 30-31, 2021

We’ve spent the weekend secluded in our rooms in final preparation for the upcoming hearings. Hearings are scheduled on nine of the eleven defense motions pending, although we are skeptical we are going to get to all of them in the next four and a half days. (Alaska courts close at noon on Fridays.)

First up tomorrow is our motion to suppress evidence seized by Alaska and Maine state police when they arrested our client in Auburn, Maine, in February 2019. We are looking to exclude, on Fourth Amendment grounds, the DNA evidence buccal swabbed from Steven’s cheeks, an H&R .22 long barreled pistol and Bowie knife that police think were used in the crime 28 years ago, and statements that were given by our client in violation of his Miranda rights.

We are also litigating a motion to dismiss the indictment, a pleading common in Alaska but foreign to us in Maine. The gist of many of our arguments this week is that law enforcement, once detecting a DNA connection from a badly botched 1993 crime scene, have been ignoring highly exculpatory evidence that someone else committed this crime. In other words, they are trying to squeeze square pegs into round holes, trying to make the evidence work for their theory of the case.

CeCe Moore will be testifying this week during our motion to suppress the third party DNA evidence. She is the famous “genetic detective” (look up her TV show that ran this past year on ABC), capturing all these bad guys in cold case crimes. The most famous of these cases is that of Joseph James DeAngelo, the “Golden State Killer” who sexually assaulted and murdered dozens of women in California.

Is it constitutional for law enforcement, without warrants, to go into DNA data bases like Ancestry.com and 23andMe, without consent, and fish through millions of bits of data looking for a partial DNA match with a distant relative? In our case, they found a partial match with Steven’s aunt, who lives out of state.

We’re all for solving cold cases and catching serial killers, but it gets a little scary when we think about the risks and possibilities of scooping up innocent people in the process. This is an issue that has not yet been decided by the U.S. Supreme Court, but, interestingly, justices from both the right (Gorsuch) and the left (Sotomayor) have expressed trepidation with the practice.

It’s a brave new world, and cases like State of Alaska v. Steven Downs raise interesting cutting edge issues. After nearly two years of delay because of the complexity of the case and Covid-19, the rubber is about to hit the road here at the Fairbanks Rabinowitz Courthouse, before the Honorable Superior Court Judge Thomas Temple. The first witness on the stand on Monday morning: Randel McPherron, the veteran detective who came out of retirement to join the Alaska State Trooper Cold Case Unit in 2013, tasked with hunting down the perpetrator of the 1993 murder of UAF student Sophie Sergie.

+++++

For more information on the case, follow Christopher Williams’s reporting at the Sun-Journal:

https://www.google.com/url?client=inter ... aQlBTrvDr4

Kathryn Miles from Down East Magazine wrote an interesting article focusing on the genetic genealogy angle:

https://downeast.com/issues-politics/dn ... %26hl%3Den

JimHow · Post by **JimHow** » Tue Feb 02, 2021 5:01 am

From Maine to Alaska: Pretrial Motions in the Sophie Sergie Murder Cold Case

Day One: Monday, January 25, 2021

It has been nearly two years since Steven Downs was arrested for the 1993 cold case murder of University of Alaska Fairbanks student Sophie Sergie. The Auburn, Maine, native has spent most of that time at the Fairbanks Correctional Center, a facility that makes the Androscoggin County Jail look like the Ritz Carlton.

The defense team has filed numerous pretrial motions, including eleven that attack the forensic evidence and botched investigation by Alaska State Troopers homicide detectives over the past twenty-eight years. Because of Covid, the hearings on these motions have been continued twice and have been pending for over a year.

After several telephonic conferences with assigned Alaska Superior Court Judge Thomas Temple and the Alaska prosecutor, we decided it was time to proceed on the motions... in the middle of a raging pandemic.

The Maine lawyers on the defense team — Jesse Archer, Stephen Dassatti, and I — all got tested yesterday to comply with Alaska regulations. Jesse got his negative results this morning, mine came in as we were boarding the late afternoon flight from Logan to Seattle. It was not without a little trepidation as I opened the link in my text message from CVS: a positive test meant that I couldn’t enter the state of Alaska and would have to participate by video. Would it make more sense to get off the plane and drive back to Maine? Luckily, the results were negative. We’ll soon be joining the fourth lawyer on the defense team: Fairbanks attorney Frank Spaulding.

We just checked into the airport Hilton here in Seattle. Steve just got his results: Negative. It's on to Fairbanks tomorrow!

Day Two: Tuesday, January 26, 2021

We started the second leg of the trip over breakfast at the airport Hilton in Seattle, downloading (or is it uploading?) our negative Covid test results into the Alaska state travel portal. It is a task that seemingly requires an advanced computer science degree but fortunately Jesse was able to walk us other two old timers through it after about and hour, and it’s off to balmy Fairbanks.

Our first task upon arrival in Fairbanks is to hit the local Office Max store. We are setting up headquarters at the SpringHill Suites across from the courthouse in bleak downtown Fairbanks, and we need a cheap printer. There are 8,000 pages of discovery in this case, plus dozens of audio and video files. There will be numerous exhibits presented, some which were printed up before we left, but most which will be printed in Fairbanks.

We were required to arrive five days early to comply with the court system’s Covid requirements, which is actually kind of a good thing because it gives us five full days to put in 10-12 hours per day of final preparation on the case. Before I left I completely cleared my schedule and told all of my clients that I would be unavailable for two weeks.

We arrived in Fairbanks on a beautiful sunny afternoon flight, minus-20 but no wind, a dry cold, not unpleasant during the brief entry and exit from the taxi. Jimmy, the pleasant young man who screened us through the airport with our negative test results, was very familiar with the Sophie Sergie case and thinks we have our work cut out for us. In fact, he doesn’t see how we are going to get this guy off. He wished us well, though: “You guys must be good lawyers. Welcome to Fairbanks!”

Day Three: Wednesday, January 27, 2021

I started our first full day in Fairbanks with a little 6 a.m. walk in the vicinity of the hotel, minus-19 in the early morning darkness. I actually found it quite pleasant, again, it is a very dry cold, and there has been absolutely no wind. After about ten minutes my face above the mask began to freeze, and I turned back. My L.L. Bean Baxter coat, though, advertised as good for up to minus-40, delivered as promised.

I was last in Fairbanks in August 2019, for the initial appearance of Steven Downs on the murder and sexual assault charges. It is a wild place, a cross between Wild West honky tonk and rugged grunge craft beer culture, a final frontier, end of the earth feel. Everybody has a story.

Today is the first of five full days of preparation for next week’s hearings. As much as we thrive on going to trial, we are under no illusions. This is going to be a tough case to win any place in Alaska, but especially in Fairbanks. This crime has hovered over the community for nearly three decades.

We have eleven motions pending, nine of which are scheduled for hearing next week. First up on the list for Monday is a hearing on our motion to suppress statements and evidence of a gun and knife that were seized from Steven’s home in Auburn, Maine. The prosecution believes that these weapons were used in the crime twenty-seven years ago, but they are wrong. We don’t expect to win every battle next week, but our goal is to try to weaken the state’s case as much as possible.

Darkness is descending, the sky is clear. We should be able to see the aurora borealis tonight.

Day Four: Thursday, January 28, 2021

The breakfast area here at the Fairbanks Marriott Springhill Suites is busy each morning right at 6:30 a.m., when they begin to serve. Yesterday it was six young French women hanging out in the lobby, geared up like they were ready for a big ski excursion. Today it was a group of hunters, I thought they had southern accents, but maybe not.

Temps continue in the near twenty below range, my morning walks into the dry air are becoming one of my favorite parts of the day.

Our taxi driver from the airport was telling us about the caribou hunting season, residents are allowed two tags this year to thin out the herd. Stephen joked about my famous night hunting case that I prosecuted when we both joined the Maine attorney general’s office as young lawyers back in 1986, it was my first jury trial, for some reason it got all kinds of local attention, the headline at the top of the front page read: “Belfast Man Convicted of Night Hunting.” Our taxi driver here in Alaska told us night hunting is not really enforced up here at the arctic circle, as darkness has a different relevance from most other places.

The sun has been rising by about 10:00 a.m., and setting by about 5:00 p.m. And it’s cold. Our Uber guy yesterday explained the crack across his windshield as common in the sub-zero temps, and, like night hunting, not really enforced by local police. I expected a lot more snow. “We don’t get as much as you would think,” he said, “because it’s very dry up here.”

Today was a day of locking ourselves in our rooms and grinding though preparations for the motion hearings next week. This is a big “DNA case,” for sure, but it’s also going to come down to alternate suspects. The University of Alaska Fairbanks was a very dangerous place back in 1993, with no security and lots of dangerous characters around. One of them is sitting in the Spring Creek Correctional Center, in Seward, having killed another man subsequent to the Sophie Sergie homicide. We believe he also killed Sophie, and are petitioning the judge to allow us to present him as an alternate suspect at trial. We should have a better idea whether we will be allowed to do so by this time next week.

https://www.youtube.com/watch?v=sa7_RyCA_Zg
IMG_0122.MOV

Day Five: Friday, January 29, 2021

It’s interesting, I first came up here to Fairbanks back in late August 2019, for the initial appearance and fruitless bail argument on behalf of my client, Steven Downs. Steve had been dragged from his quiet home in Auburn, Maine, extradited across five of the country’s worst federal prisons over a Kafkaesque, nearly three month odyssey, landing finally here at the Fairbanks Correctional Center, some 4,500 miles away from home. All because of what an Alaska crime lab scientist from 1993 described as “a few spermatozoa” molecules from a botched crime scene more than a quarter century in the past.

My first anecdotal observations of Fairbanks back in 2019 were not positive. But then again, I was here for like three nights, spending most of my time in court and at the jail. We’ve had a chance to better observe the place here in the middle of winter. It’s a pretty hip place! We’ve been dining well, tonight on Jinhi Bay Alaskan oysters, at this cool little bistro downstairs at our hotel. Our waitress last night, who has travelled around the world and keeps coming back, described the people here as “wonderfully weird.” Jesse, a sailor and ship captain before becoming a lawyer, equates Fairbanks to other end-of-the-earth destinations like Bar Harbor, Key West, and Beaufort, NC. Everybody here has beards and tattoos, we are all looking pretty grungy ourselves, I’m trying to decide whether to shave before court next week… nobody would know, we are required to wear masks anyway. I know what big Don Hornblower’s answer would be.

We had our first interaction this Friday evening with the Alaska prosecutor, Jenna Gruenstein, since getting here, emailing back and forth about usual stuff like order of witnesses, etc. She’s pleasant enough, but… she wants this guy… bad. We have our hands full.

Hoping to get some views of the northern lights before we leave, but in the meantime I’ve added a few pictures to the gallery.

Days Six and Seven: January 30-31, 2021

We’ve spent the weekend secluded in our rooms in final preparation for the upcoming hearings. Hearings are scheduled on nine of the eleven defense motions pending, although we are skeptical we are going to get to all of them in the next four and a half days. (Alaska courts close at noon on Fridays.)

First up tomorrow is our motion to suppress evidence seized by Alaska and Maine state police when they arrested our client in Auburn, Maine, in February 2019. We are looking to exclude, on Fourth Amendment grounds, the DNA evidence buccal swabbed from Steven’s cheeks, an H&R .22 long barreled pistol and Bowie knife that police think were used in the crime 28 years ago, and statements that were given by our client in violation of his Miranda rights.

We are also litigating a motion to dismiss the indictment, a pleading common in Alaska but foreign to us in Maine. The gist of many of our arguments this week is that law enforcement, once detecting a DNA connection from a badly botched 1993 crime scene, have been ignoring highly exculpatory evidence that someone else committed this crime. In other words, they are trying to squeeze square pegs into round holes, trying to make the evidence work for their theory of the case.

CeCe Moore will be testifying this week during our motion to suppress the third party DNA evidence. She is the famous “genetic detective” (look up her TV show that ran this past year on ABC), capturing all these bad guys in cold case crimes. The most famous of these cases is that of Joseph James DeAngelo, the “Golden State Killer” who sexually assaulted and murdered dozens of women in California.

Is it constitutional for law enforcement, without warrants, to go into DNA data bases like Ancestry.com and 23andMe, without consent, and fish through millions of bits of data looking for a partial DNA match with a distant relative? In our case, they found a partial match with Steven’s aunt, who lives out of state.

We’re all for solving cold cases and catching serial killers, but it gets a little scary when we think about the risks and possibilities of scooping up innocent people in the process. This is an issue that has not yet been decided by the U.S. Supreme Court, but, interestingly, justices from both the right (Gorsuch) and the left (Sotomayor) have expressed trepidation with the practice.

It’s a brave new world, and cases like State of Alaska v. Steven Downs raise interesting cutting edge issues. After nearly two years of delay because of the complexity of the case and Covid-19, the rubber is about to hit the road here at the Fairbanks Rabinowitz Courthouse, before the Honorable Superior Court Judge Thomas Temple. The first witness on the stand on Monday morning: Randel McPherron, the veteran detective who came out of retirement to join the Alaska State Trooper Cold Case Unit in 2013, tasked with hunting down the perpetrator of the 1993 murder of UAF student Sophie Sergie.

Day Eight: Monday, February 1, 2021

Lead Detective Randel McPherron testified all day today on behalf of the state’s case in the motion to suppress. We should get to cross-examine him starting sometime tomorrow.

The prosecutor played a couple hours of audio interviews of Steven Downs being grilled by these two cowboy detectives from Alaska. We feel that was an error, it was a chance for the judge to hear Steve’s side of the story without being subjected to cross-examination by the prosecutor, and the Alaska cops come across as real jerks in the audio, making stuff up to try to coerce him into a confession. Steve has just categorically denied this from the very beginning.

I hear there’s a big storm back home. There has been hardly any snow here but they said the temperature tomorrow is going to get down to minus-63 with the windchill. Can’t wait!

Some local press coverage in Alaska:

https://www.webcenterfairbanks.com/2021 ... wns-trial/

And Maine:

https://www.sunjournal.com/2021/02/01/e ... uburn-man/

+++++

Kathryn Miles from Down East Magazine wrote an interesting article focusing on the genetic genealogy angle:

https://downeast.com/issues-politics/dn ... %26hl%3Den

Claret · Post by **Claret** » Tue Feb 02, 2021 2:52 pm

"First up tomorrow is our motion to suppress evidence seized by Alaska and Maine state police when they arrested our client in Auburn, Maine, in February 2019. We are looking to exclude, on Fourth Amendment grounds, the DNA evidence buccal swabbed from Steven’s cheeks, an H&R .22 long barreled pistol and Bowie knife that police think were used in the crime 28 years ago, and statements that were given by our client in violation of his Miranda rights."

Why would a murderer keep the offending weapons for decades?

DavidG · Post by **DavidG** » Tue Feb 02, 2021 4:22 pm

Really enjoying your journal Jim. I'm rooting for the two of you and for recognition of both the scientific limits and privacy issues here.

Some top notch reporting by the Fairbanks TV station. They attributed your quote to McPherron.

Musigny 151 · Post by **Musigny 151** » Tue Feb 02, 2021 4:56 pm

Jim,
Really interesting. Thanks for sharing. I am not sure if this has been covered, but it must be incredibly expensive for a defense team to spend weeks in Alaska. Who is paying for this?

AKR · Post by **AKR** » Tue Feb 02, 2021 7:27 pm

Claret wrote:"First up tomorrow is our motion to suppress evidence seized by Alaska and Maine state police when they arrested our client in Auburn, Maine, in February 2019. We are looking to exclude, on Fourth Amendment grounds, the DNA evidence buccal swabbed from Steven’s cheeks, an H&R .22 long barreled pistol and Bowie knife that police think were used in the crime 28 years ago, and statements that were given by our client in violation of his Miranda rights."

Why would a murderer keep the offending weapons for decades?

On top of all that, I thought there was some paper trail that pistol was purchased long after the crime.

JimHow · Post by **JimHow** » Wed Feb 03, 2021 2:43 am

Day Eight: Tuesday, February 2, 2021

It took nearly two years, but today we finally got to confront Steven Downs’s accuser. It felt really good. Lead Detective Randel McPherron is a longtime cop with over 30 years of experience with the Alaska State Troopers. We had him on the witness stand all day. This has been a botched investigation from the beginning, so it was easy to point out the numerous flaws in the evidence from the past 28 years.

What is troubling, though, are the outright fabrications contained, over and over again, in the police affidavits in support of applications for the ten search warrants in this case. And the blatant violations of Steven’s Miranda rights. Detective McPherron made the classic mistake of trying to explain away his conduct when he really just needed to admit that he had made some mistakes.

This is a classic case of overzealous law enforcement fabricating a little here, exaggerating there, and outright making stuff up in some cases, all because they are convinced that Steven Downs committed this horrific crime. This is how innocent people get wrongfully convicted.

Tomorrow we go into day three of the hearing on our motion to suppress. We are very pleased with the way things are going so far, but we still have three days to go. We are really hoping to get to the hearing on this H&R .22 pistol that Alaska is so convinced is the weapon in the 1993 murder of Sophie Sergie.

Some local news coverage:

https://www.sunjournal.com/2021/02/02/p ... ka-murder/

https://www.webcenterfairbanks.com/2021 ... -hearings/

JoelD · Post by **JoelD** » Thu Feb 04, 2021 2:48 am

Pulling for your client and team Jim.

Wouldn't ballistics prove the gun one way or the other? That seems more cut and dry than the DNA.

JimHow · Post by **JimHow** » Thu Feb 04, 2021 8:10 am

Day Nine: Wednesday, February 3, 2021

Sometimes you just have to put the warm bodies on the stand, you never know where it is going to lead. Yesterday I was cross-examining the lead detective about a letter from the Alaska Attorney General that was tucked in the 8,000 pages of discovery we have received in this case. We thought it was a letter requesting an authorization for a so-called Pen register trace on our client's phone, part of the Orwellian level of surveillance aimed at Steven Downs by the Alaska and Maine state police. Much to our surprise, the detective testified that the letter was related to a secret wiretap of our client, which was not subsequently disclosed to us within ninety days, as required by Alaska law. It has been nearly two years now, and we are just finding out about this wiretap. The judge went ballistic on the prosecutor, threatening sanctions. It has been a pattern of hiding evidence by this prosecution and its lead detective. We received a timely batch of 2,800 pages of discovery in the summer of 2019, not long after Steven was arrested. then they dumped an additional 4,900 pages of materials that they've had for decades... in the spring of 2020, more than a year after our client was taken into custody and shipped off 4,500 miles from home. Alaska has a history of pulling this stuff, dating before the Ted Stevens case. On to tomorrow, and the short walk from the hotel to the court house in the darkness and minus-20 temps at eight in the morning in downtown Fairbanks, Alaska....

https://fm.kuac.org/post/sophie-sergie- ... e-proceeds

Nicklasss · Post by **Nicklasss** » Thu Feb 04, 2021 5:19 pm

Seems like Mr. Alexeï Navalny will request your services after guys, as you'll be used to complex cases and -25 C!

Nic

JimHow · Post by **JimHow** » Fri Feb 05, 2021 6:09 am

Day Ten: Thursday, February 4, 2021

This may have been the wildest day yet in court. It was a tough slog through most of the day until the last witness with forty-five minutes to go. We called Kate deSchweinitz Lee, the former girlfriend who Steve Downs dated during college, back when he was young and strapping. The relationship was very serious by the spring semester of their freshman year, when the murder occurred. Steve told police he was with Kate on the night of the murder.

She appeared by Zoom from her home in Palmer, Alaska, down near Anchorage, still looking as beautiful as ever. The prosecution had called her as a witness at the grand jury proceeding back in March 2019, not long after Steve had been arrested. She was supposed to be their big rebuttal witness to Steve’s alibi that night. Instead, she testified that she had no real recollection of that night. She also rebutted the state’s argument that Steve had a gun at the time, testifying that, while she did remember going out target shooting one time with him in the woods, he did not own a gun at any time, and that was the only time she saw him with a gun -- or any other weapon, including a knife -- during their nearly four year relationship.

The other big issue that won’t go away is the extent to which prosecutors and the Alaska State Troopers are hiding evidence from us. It is really outrageous, and we feel we have scratched only the very tip of a big Alaska iceberg.

In this video, I am confronting the lead detective about the fact that the state may have been monitoring a call between steve and our local Maine defense attorney friend Don Hornblower, the night before he was arrested. I can’t even begin to tell you how outrageous that is….

https://www.webcenterfairbanks.com/2021 ... dismissed/

We had a final dinner here -- the rather rough looking team -- in Fairbanks with our local attorney, Frank Spaulding on the left, Jesse Archer, myself, and Stephen Dassatti. We are leaving tomorrow afternoon for Seattle tomorrow night, then heading back east. It has been an absolutely incredible trip.

Racer Chris · Post by **Racer Chris** » Fri Feb 05, 2021 11:18 am

It sounds like the defense won the first round. Good work Jim!

JimHow · Post by **JimHow** » Sat Feb 06, 2021 6:05 am

Day Eleven: Friday, February 5, 2021

We are back at the Hilton Airport Hotel in Seattle for the night, on our way home. The end of an incredible trip. We ended court at noon today, and left Fairbanks later in the afternoon. It was a trip tinged with great sadness following the loss of my youngest brother Dan.

Today we presented the legendary retired Alaska detective, Jim McCann, as a witness. Nicholas Cage played him in the movie “The Frozen Ground,” a story about a lone Alaska detective tracking down a serial killer. He solved 78 murder cases during his career, all resulting in convictions, except one… the Sophie Sergie case. He was taken off the Sergie case and eventually left on bad terms with the Alaska State Troopers, ultimately becoming a used car salesman in Fairbanks. I talked to him on the phone yesterday for about an hour, and we hit it off. He did not disappoint on the witness stand.

McCann testified about an early suspect in the case named Kenny Moto, a man who was seen coming out of the women’s second floor bathroom at Bartlett Hall on the campus of the University of Alaska Fairbanks at about 1:30 a.m., on April 26, 1993, about the time Sophie was last seen walking toward the bathroom. Years later Kenny’s sister came forward and told police that her brother had confessed to killing Sophie. Kenny went on to commit over a dozen crimes of violence against women, and sits now in the Spring Creek Correctional Center in Seward, the state’s maximum security prison, on a homicide conviction. He was “exonerated” by the Alaska State Troopers because his DNA did not match that from the crime scene. We believe Kenny Moto killed Sophie Sergie, and are seeking to present him as an alternate suspect.

We litigated only one of our pending eleven motions, but it was the motion to suppress evidence, the most complicated one. We are in the middle of our motion to dismiss the indictment, which will be continued by Zoom in March. We’ll litigate the other motions at some point in 2021. The judge blocked off seven weeks for trial commencing on January 3, 2022. In the meantime, Steven Downs sits in the Fairbanks Correctional Center, nearly 5,000 miles from home. Next week he’ll have been in custody for two years, having been dragged from his quiet home in Auburn, Maine, on February 15, 2019.

It would be extremely unlikely for the judge to dismiss the case outright, but our realistic goal is to weaken the case as much as possible, and impress the prosecutor and lead detective that going through a two month trial in this matter is going to be a miserable experience for the state. I can’t see how the first week of meaningful litigation in the case could have gone any better -- we really feel like we wreaked some havoc -- but there is a long way to go in this exceedingly complicated case. Jesse and I have two other murder cases in Maine, where we feel both of those clients are innocent as well. It is going to be a busy year!

Thanks to everyone for reading my little blog. It has been a very emotional month, and I am tired. We’ll see you all soon back in Maine!

Jim

https://www.sunjournal.com/2021/02/05/e ... had-a-gun/

https://bangordailynews.com/2021/02/03/ ... cold-case/

https://www.youtube.com/watch?v=g0_mrDgDe4w

Comte Flaneur · Post by **Comte Flaneur** » Sat Feb 06, 2021 10:19 am

Riveting read Jim. Seems like it was a productive couple of weeks and you seem to have the prosecution on the back foot.

dstgolf · Post by **dstgolf** » Sat Feb 06, 2021 2:17 pm

Jim,

We've enjoyed the read presented from one side and amazing to hear this guy sits in jail with no bail for two years and trial won't take place for another year!! What happens if your team does get him off this guys life unfortunately has been ruined either way! Is there any compensation in a case like this if he is set free?? i don't envy your upcoming year but your posts have been a fun read. Keep well and look after yourself.

Musigny 151 · Post by **Musigny 151** » Sat Feb 06, 2021 2:42 pm

My son is a student at Duke law who worked on the Innocence Project In North Carolina. He got close to Dontae Sharpe, released after 23 years for a murder he did not commit. By state law, he is not entitled to any compensation without a governor’s pardon. For obvious reasons, governors do not pardon.

https://law.duke.edu/news/dontae-sharpe ... oneration/

JimHow · Post by **JimHow** » Sat Feb 06, 2021 6:41 pm

I'm on the flight from Seattle to Boston.
I'm not sure what rights he would have, Danny, probably none.
These guys typically have qualified immunity, so there would have to be some pretty affirmatively bad conduct from law enforcement.
The way these guys are operating, though, I'm beginning to wonder. It's really a classic case of they think they have the guy, so let's fudge a little here, exaggerate a little there, etc.
Our goals are less sexy in this case. We're trying to muck things up as much as possible so that the state eventually makes us a rational plea offer.
We are under no illusions, winning a two-month trial in Fairbanks, Alaska, is going to be a tall order. "The DNA doesn't lie," at least that's what they say on CSI.
We do think we have some strong arguments on issues that would weaken the state's case.
The H&R .22 that was seized from his house should be excluded, as it simply was not the gun. They think it's the gun, but they are wrong.
As for the ballistics, Joel, the bullet was badly crushed, making ballistics analysis impossible.
I can only discuss aspects of the case that are public record, of course.
We also believe a large part of his statements to the police will be suppressed due to a Miranda violation.
Not that he said anything incriminating to the police. The recordings of his three interviews with the police were played in open court and it was chilling to hear his adamant denials about involvement in this crime under intense interrogation, that "there must have been some mix up."
We are also attempting to exclude evidence of the DNA itself under several theories, including under Fourth Amendment search and seizure doctrine, because the search warrants were issued based upon police affidavits that the police themselves admit contained fabricated information. They say it was a "mistake," but they are full of shit. We're also looking to exclude the DNA because of problems with the way it was collected, chain of custody, and a corrupted crime scene, etc.
Also, perhaps the most interesting issue in the case, we are attacking the constitutionality of this whole business of going into these ancestry.com type data bases and fishing for DNA profiles that have partial matches to aunts, distant cousins, etc. That's an issue that has yet to be decided by the U.S. Supreme Court, and many in the legal community think this could be the case that goes up. We have a couple of renowned experts working with us on this issue, including Dr. Fred Bieber from Harvard, who is one of the leading authorities.
So... while we love to go to trial -- I've done more jury trials than anyone else in Maine, with an acquittal rate of over 80% (the national average is closer to 10%) -- and of course the dream is to get to the point where a jury foreperson utters the words "not guilty" -- we really don't want to leave this in the hands of a local jury in Alaska. But we will take it to trial if we have to, in other words, if the state does not make us a plea offer that makes sense for our client.

JimHow · Post by **JimHow** » Sat Feb 06, 2021 7:03 pm

I'm familiar with the Dontae Sharpe case, Mark, that's amazing that your son is involved in that case.
When I was in Paris last February we were having dinner and met Jayon Brown, middle linebacker for the Tennessee Titans, who was sitting at the table next to us.
His best friend from UCLA days is Kenny Clerk, center for the Green Bay Packers.
Kenny's father, Kenny Clark, Sr., has been sitting in prison for decades on a murder rap that really seems rotten.
We ended up hanging out with Jayon that night. Now Kenny's Sr.'s wife is trying to get us involved in the case in California. He currently has lawyers working on it at the federal level, we'll see how things develop.
We've got two other huge murder cases pending in Maine that will almost certainly go to trial in 2021. I was planning on being retired by now.
There is a LOT of injustice in the American criminal court system, don't let anyone ever have you believe otherwise.

marcs · Post by **marcs** » Sun Feb 07, 2021 2:36 pm

Is your goal here really a plea bargain when you believe your client is actually innocent? It seems like given the politics of the case any plea they offer would have to be pretty harsh

Fantastic diary, if I’m ever unjustly accused I want you as my lawyer!

JimHow · Post by **JimHow** » Sun Feb 07, 2021 4:28 pm

There are many factors that go into a plea decision. It's all about risk management.
If you are the 46 year old defendant and the judge keeps in evidence like the gun, a 15 year sentence on a manslaughter (ten years with good time and two years already in) which gets you out at age 55 might look good compared to spending the rest of your life in the Alaska maximum security state prison.
If you are the prosecution and the judge weakens your case by suppressing some of the key evidence, you might want to offer something less and salvage some level of a victory.
The prosecution always has the advantage in these cases. If they lose, the prosecutor goes home and has dinner. If we lose, the defendant never sees the light of day for the rest of his life.
I have serious doubts about my client's guilt, but I wasn't there and it's not my opinion that matters. All bullshit aside, if I were on the jury I would vote to acquit. I just think there is reasonable doubt. But I'm not on the jury. And you can never predict what a jury will do.
I have like best acquittal rate in the history of Maine. It has been wonderful winning 80% of the time, there is nothing like hearing those words "not guilty," it never gets old, whether it's a OUI case or a murder. But that 80% success rate is small consolation to the 20% of my clients who have lost.
So we have to make our plea decisions based on many factors, and every case is different.
You are right, because this is such a politically charged case, the prosecution is out for blood.
If that remains the case, we will have a trial in 2022. Time will tell.

JoelD · Post by **JoelD** » Sun Feb 07, 2021 5:00 pm

JimHow wrote:There are many factors that go into a plea decision. It's all about risk management.
If you are the 46 year old defendant and the judge keeps in evidence like the gun, a 15 year sentence on a manslaughter (ten years with good time and two years already in) which gets you out at age 55 might look good compared to spending the rest of your life in the Alaska maximum security state prison.
If you are the prosecution and the judge weakens your case by suppressing some of the key evidence, you might want to offer something less and salvage some level of a victory.
The prosecution always has the advantage in these cases. If they lose, the prosecutor goes home and has dinner. If we lose, the defendant never sees the light of day for the rest of his life.
I have serious doubts about my client's guilt, but I wasn't there and it's not my opinion that matters. All bullshit aside, if I were on the jury I would vote to acquit. I just think there is reasonable doubt. But I'm not on the jury. And you can never predict what a jury will do.
I have like best acquittal rate in the history of Maine. It has been wonderful winning 80% of the time, there is nothing like hearing those words "not guilty," it never gets old, whether it's a OUI case or a murder. But that 80% success rate is small consolation to the 20% of my clients who have lost.
So we have to make our plea decisions based on many factors, and every case is different.
You are right, because this is such a politically charged case, the prosecution is out for blood.
If that remains the case, we will have a trial in 2022. Time will tell.

This is crazy stuff Jim. Appreciate you keeping us informed with what you can. If you were to take a plea deal, is there any option to re-open the case if say a different case goes to the Supreme Court and they throw out DNA pulls from something like ancestry.com? Or once you take the plea, its basically done forever, even barring new evidence as well?

JimHow · Post by **JimHow** » Sun Feb 07, 2021 5:18 pm

That's a very good question, Joel.
If we took a plea and the U.S. Supreme Court later found the genetic genealogy searches unconstitutional, my client would be out of luck.
If we went to trial and lost, we would appeal up to the Alaska Supreme Court, and then likely directly to the U.S. Supreme Court.
(I have another case involving a prosecutor's discriminatory exclusion of a juror that is taking a separate route up through the federal system, it is at the First Circuit Court of Appeals in Boston right now.)
There is a third possibility, which is what we call a "conditional plea." In other words, we say, okay, we'll plead guilty, but we preserve the right to appeal this genetic genealogy issue, and if the Alaska Supreme Court or a federal court reverses on that issue, then the plea is vacated. A conditional plea requires two to tango, however, so the prosecution has to go along with it.

JoelD · Post by **JoelD** » Sun Feb 07, 2021 5:28 pm

JimHow wrote:That's a very good question, Joel.
If we took a plea and the U.S. Supreme Court later found the genetic genealogy searches unconstitutional, my client would be out of luck.
If we went to trial and lost, we would appeal up to the Alaska Supreme Court, and then likely directly to the U.S. Supreme Court.
(I have another case involving a prosecutor's discriminatory exclusion of a juror that is taking a separate route up through the federal system, it is at the First Circuit Court of Appeals in Boston right now.)
There is a third possibility, which is what we call a "conditional plea." In other words, we say, okay, we'll plead guilty, but we preserve the right to appeal this genetic genealogy issue, and if the Alaska Supreme Court or a federal court reverses on that issue, then the plea is vacated. A conditional plea requires two to tango, however, so the prosecution has to go along with it.

Hopefully he doesn't have to make that decision and you guys can just it dismissed outright somehow.

What about in situations where after a plea, your alternate suspect admits to the crime? Or new evidence arises, say of the police with serious misconduct?

JimHow · Post by **JimHow** » Sun Feb 07, 2021 5:44 pm

Yes, there are provisions for seeking new trials and vacating convictions, like when a witness comes forward and recants, or DNA exonerates, or in like the Dontae Sharpe case that Mark mentioned. But those cases are extremely rare. There is a heavy presumption in our court system for "finality of judgment," in other words, in both civil and criminal cases, society needs to be able to rely on the decisions of courts, when a decision comes down it is final (subject to appeal). So those options would be available to our client, but the likelihood of success is remote. In reality, the case will be won or lost now. In our experience, my associate Jesse and I win most of our cases in pretrial litigation. We try to create as many problems for the prosecution as possible before we go to trial. Often we "lose the battle but win the war." In other words, judges almost never flat out dismiss a case, often we "lose" these pretrial motions, but we put the prosecution on notice that they are going to have big problems if we go to trial. Often we get what is likely to happen here, a suppression order that grants our motion in part and denies it in part, where the judge rules in our favor on some issues and against us on others. We had a manslaughter case like that recently here in Maine. We didn't win on all issues, but we weakened the state's case sufficiently that they ended up making us an offer we couldn't refuse.

This past week felt good because we've been waiting nearly two years to confront the state in this case, with all the delays from Covid, etc. it felt like Ralphie going wild on the bully in A Christmas Story.

JoelD · Post by **JoelD** » Sun Feb 07, 2021 7:21 pm

JimHow wrote:Yes, there are provisions for seeking new trials and vacating convictions, like when a witness comes forward and recants, or DNA exonerates, or in like the Dontae Sharpe case that Mark mentioned. But those cases are extremely rare. There is a heavy presumption in our court system for "finality of judgment," in other words, in both civil and criminal cases, society needs to be able to rely on the decisions of courts, when a decision comes down it is final (subject to appeal). So those options would be available to our client, but the likelihood of success is remote. In reality, the case will be won or lost now. In our experience, my associate Jesse and I win most of our cases in pretrial litigation. We try to create as many problems for the prosecution as possible before we go to trial. Often we "lose the battle but win the war." In other words, judges almost never flat out dismiss a case, often we "lose" these pretrial motions, but we put the prosecution on notice that they are going to have big problems if we go to trial. Often we get what is likely to happen here, a suppression order that grants our motion in part and denies it in part, where the judge rules in our favor on some issues and against us on others. We had a manslaughter case like that recently here in Maine. We didn't win on all issues, but we weakened the state's case sufficiently that they ended up making us an offer we couldn't refuse.

This past week felt good because we've been waiting nearly two years to confront the state in this case, with all the delays from Covid, etc. it felt like Ralphie going wild on the bully in A Christmas Story.

GREAT comparison. Love it

tim · Post by **tim** » Sun Feb 07, 2021 10:24 pm

Jim, you will recall the case of my former colleague who was convicted of murder. I watched most of the trial and came to the conclusion that there was no way it was even possible that he committed the crime. But he was still convicted of murder due to supposed computer evidence and the judge's decision to not allow the defense to present expert testimony that contradicted the computer evidence.

The case was appealed and eventually the conviction overturned due to the errors committed by the judge. And so the guy was going to go back to another trial in front of the same judge that showed completely bias against him. He ended up pleading for 12 years, with 5 years time served (so another 7 years). He admitted he was guilty, and everyone said that it was definitive because he admitted it, but I can't help to believe that he chose to plead because he knew it was more than likely that he would have been falsely convicted again and 7 years sounds a lot better than life. I lost complete faith in the US justice system as a result of that and another similar case. There is no justice, only power.

People think that a plea deal means the person is guilty. That is a dangerous assumption.

s*d*r · Post by **s*d*r** » Sun Feb 07, 2021 10:50 pm

Inspired by this case I reread “The Run of His Life,” Jeffrey Toobin’s brilliant analysis of the OJ Simpson trials. The comparison of the criminal case tried in LA and the civil case tried in Brentwood is amazing. Not only because of a better judge and prosecution lawyers in the civil case but mostly because the change in venue. In that case it was clear going in to the downtown location that the hero status of the black defendant and suggesting that the white LAPD cops planted evidence was far more important than the facts, including DNA evidence, to the African American jury. I relearned that it’s the makeup of the jury that determines the outcome of a trial if it gets that far. No number of peremptory challenges can change the makeup of the jury pool from which you must choose.

Stu

Blanquito · Post by **Blanquito** » Sun Feb 07, 2021 11:15 pm

I’ll pile on here and agree that this really is fascinating reading. Such an interesting, crazy case with some very scary undertones and implications. I have been thinking the same thing as Marc reading this, that I know who’d I want as my attorney!

You clearly can sway a jury Jim and I find myself aggrieved at the injustice of the legal system reading this, especially for the ‘little guy’. But I used to be buddies with a junior prosecutor and if I can say one thing for the ‘other side’, it would be this — the good ones do think they are carrying out justice, and so when they lose they do care... because they believe a guilty party has gone free and the the victim(s) of a crime have gone without redress.

I’m sure this is obvious, but I do need to remind myself of this. But maybe ‘good’ prosecutors really are few and far between?

JimHow · Post by **JimHow** » Sun Feb 07, 2021 11:36 pm

Timmy, I wasn't aware that case got flipped. Believe it or not, in modern criminal law, that's a "great" result. It is a small minority of these cases that get reversed.

Race is a major factor in the Alaska case, Stuart, the breakdown of Caucasian to Native Alaskan in the Fairbanks area is about 60 to 40. We are expecting jury selection to take a week. One of our problems is my client is this 400+ pound white guy from "the lower 48." He was 18 at the time. The victim, a native Alaskan, was 20 years old, and will forever be.

There are a few good prosecutors left, Patrick, but the profession has changed dramatically during my career. Most of them are younger, with less life experience, and are often prone to abuse of their power. They tend to be very focussed on incarceration, and "winning." They've all watched the TV shows glorifying the tough prosecutors who get the bad guys. At the higher levels, they have become much more politicized. Prosecutors have very dangerous powers, which are often abused. This is all anecdotal, of course, I have numerous friends who are prosecutors. Stephen Dassatti, who has joined our defense team, recently retired from a career in prosecution. We used to have a great district attorney's office here in Androscoggin County, who were very tough on crime but who were not afraid to do what was right in the appropriate cases, replaced now by a younger incarceration-hungry team. There is way too much incarceration in this country, which has impacted the poor and minorities in disproportionate numbers, and the biggest reason for this is ego-driven, "tough on crime" prosecutors.