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Alaska v. McDonald
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Issue 26, Fall 2004
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Case Update |
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-- Update Statements Written by Don "Mac" McDonald --
-- April, 2010 -- The original judge ruled in my favor in a "Summary Judgement" and ruled he would hear my case. The State immediately appealed his ruling and got a three-Judge Panel to "Vacate" his ruling, and to rule that we had to have a hearing on the matter. Now, its gotta be that the Judge is going to rule the same, given a hearing or not. What this hearing does is give the State an avenue to once again appeal the very same issue that they have already taken through the appeals Court twice. This is what they do to drag their feet and cause time and money loss in the matter now, which was already decided in my behalf. So it goes. Guess it wasn't a base hit after all. Ump decided it was just a foul and I have to go back to bat once again. I intend to get that hit, though, and we'll see what kind of time consuming tactics the State then offers. -- Mac --
I got a ruling and I won! The Judge decided I have been as "diligent" as I could have from prison, and in fact, the tapes would not have been enhanced if not for my sister and myself. It'll still take time, but it is finally in Court and I have the possibility of winning an overturn and force the State to retry me if they want to. Thing is, an overturn wins for me! My investigator can now put a case to what really happened. First win in this thing! Got a base hit and am just around first, trying for an in the park home run! --Mac--
These past 23 years in prison have been very frustrating, and full of discouragement as to how rulings have been made against the Appeals I have turned in. I presented an "Ineffective Assistance" claim against my original trial Attorney and a Main Merit Appeal. I took all points of Appeal all the way up through the Federal Courts. Each and every step of the way, the rulings made against me denying my Appeals have seemed to be written not even dealing with the points of appeal I was arguing. How the Appeals System works is that you appeal your points to the Appellate Court, then appeal what is turned down which were properly preserved. You repeat this process all along the way through the Courts to the Federal Court of Appeals. Denied at that point, you then take whatever preserved points of appeal you have to the Ninth Circuit Court of Appeals in San Francisco. Through all these years I felt confident that I would win an overturn ruling in the 9th Circuit because I had seven points of appeal properly preserved and being appealed. A normal case may have one or two at that point, not seven. My points of appeal were true and deserved rulings of misconduct in my trial. When my case was sent to the 9th, the Judge in Alaska who had just turned down my appeals sent along a note asking the 9th Circuit not to hear my case because he felt it didn't deserve merit. Now, the sole purpose of the 9th Circuit is to hear those cases properly preserved with Federal Points of Appeal. For the first time ever, they chose not to hear my appeals. I have no idea how the lower Court Judge gets the authority to tell a Higher Court of Appeals not to hear a case they are assigned, but that is what happened. One of those points was the fact that I was not allowed to testify on my own behalf in trial, as was my legal right. That point was turned down by a lower Court Judge because he could not hear or understand what was being said on the tapes of the trial. I have a new Attorney, Mark Barrett, who had the trial tapes enhanced with new technology and I am back in Court with that point of appeal. This single point could cause an overturn ruling and a retrial order. The enhanced tapes now have the conversations I have always said I had with my Attorney in trial, which could not be understood before this. The State of Alaska, of course, does not want this to be heard in Court. The Judge it went before stated that he thought I had done everything in my power to do, while the State argues that I should not be heard because "I did not show due diligence in not immediately hiring a new Attorney and investigator back at the time I found out the tape was not understandable." Well, the Judge said he would hear my case and the State then appealed their own State Judge as to his ruling to hear it. The Appellate Court turned down their plea and they then appealed it to the Alaska Supreme Court. A few months ago, after taking the last three years on this appeal, the Supreme Court sent it back down to the original Judge to decide for himself. Another totally wasted three years. I am now waiting a hearing date in which this can all begin being heard and ruled on. I sit in prison now, awaiting a date to be announced when my case can go forward, have my point of appeal be argued for and against, and the Judge rule on it. No matter how he rules, it will be appealed once again all the way up through the appeals system, but if I were to get a ruling in my behalf I believe there might be some way that I could be allowed an appeal bond and be freed. --Don McDonald--
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