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The Alaska Bar Rag — July - September, 2016 • Page 17

Bar People Birch Horton Bittner & Cherot members named

Birch Horton Bittner & Cherot is pleased to announce that William A. Earnhart and Carissa D. Siebeneck have become members, Jack R. McKenna has joined the firm as an associate, and Jason M. Brandeis has become of counsel to the firm. William A. Earnhart joined Birch Horton Bittner & Cherot’s Anchorage office in 2015. His practice focuses on labor and employment law, commercial litigation and appeals, and municipal law. He has more than 20 years of trial experience in state and federal Courts. Carissa D. Siebeneck joined Birch Horton Bittner & Cherot’s Washington, D.C. office in 2011. Her practice focuses on government contracts law, natural resources law, and alternative dispute resolution matters. She has expertise in small business government contracting and Native American Law. Before joining the firm, she worked for the Navajo Nation and a west-coast law firm where she worked in government affairs, corporate law, and general litigation. Jack R. McKenna is an associate attorney with the firm’s Anchorage office. His practice focuses on civil litigation and construction law. Prior to joining the firm, he was an assistant district attorney at the Anchorage District Attorney’s Office. There he supervised a felony trial team in Anchorage as well as prosecutions in Dillingham. Jason M. Brandeis has joined Birch Horton Bittner & Cherot’s Anchorage office in an Of Counsel position. His practice focuses on advising businesses and government entitles on regulation of the marijuana industry. Brandeis has extensive experience with Alaska marijuana law and policy. He has litigated cases involving the legality of marijuana in Alaska and has published several articles on this topic, including the only comprehensive history of the development of Alaska’s unique marijuana laws.

Energy & Resources practice and managing partner of the Anchorage office, has been named president of the Board of Directors of the Resource Development Council of Alaska for the 2016-2017 term. Eric was named to this position June 30 at the 41st Annual RDC membership luncheon at the Dena’ina Center in Anchorage. The RDC is a statewide business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism and fisheries industries. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of natural resources.

America ©. Peter Brautigam was named as Anchorage Lawyer of the Year in Trusts and Estates and Tax Law. Robert Manley, Litigation-Trusts & Estates, Tax Law and Trusts and Estates; Charles Schuetze, Tax Law; and Steve Mahoney was named Anchorage Lawyer of the Year in Oil and Gas Law. He is also included in the practice areas of Energy Law, Tax Law, Litigation & Controversy-Tax Law, Natural Resources Law and Non-Profit/Charities Law.

Attorney joins Delaney Wiles after passing Bar exam

Jessica J. Spuhler joined Ashburn & Mason as an associate in March 2016. Prior to joining the firm, Jes was the senior commercial regulatory affairs analyst for a major oil company in Alaska, managing non-technical risk and advising on regulatory matters. She previously worked as a public interest Jessica Spuhler lawyer in Colorado, where she represented private property owners, small oil and gas operators and federal oil and gas leaseholders, as well as industry and agricultural trade associations. Jeffrey Robinson joined the firm in 2015 and recently became a shareholder. Prior to joining Ashburn & Mason, Jeffrey most recently served as a supervisor in the felony trial unit of the Alaska Public Defender Agency in Anchorage, where he tried complex felony cases and trained new lawyers in trial skills. He maintains an active civil Jeffrey Robinson litigation and trial practice, handling a variety of business, real estate and criminal disputes in both federal and state court.

Delaney Wiles is proud to announce that our newest addition to the firm, Luba K. Bartnitskaia, passed the Alaska State Bar in February. Bartnitskaia joined the firm in 2015. She graduated from the University of San Diego School of Law with a concentration in civil litigation, where she was managing editor of the San Diego Luba K. International Law Journal Bartnitskaia and competed on the National Mock Trial Team, as well as the Vis International Commercial Arbitration Moot Court Team. While in law school, Bartnitskaia interned at the Transportation Security Administration’s Office of Chief Counsel in San Diego, the U.S. Attorney’s Office in Anchorage, and the Office of Public Advocacy Elder Fraud and Assistance Section. She is also a member of the California Bar Association.

4 Manley & Brautigam attorneys Perkins Coie partner named to selected as 2017 Best Lawyers Resource Development Council Four lawyers from the office of Manley &

Perkins Coie is proud to announce that Eric B. Fjelstad, a partner in the firm’s Environment,

Brautigam, P.C. have been selected for inclusion in the 2017 edition of The Best Lawyers in

Attorney Discipline

Tribute to Sharon Yerbich

BAR RAG

sent a Texas death row inmate named Elroy Chester in a post-conviction relief case based on his mental retardation. On June 12, 2013, 10 years and two days later, we lost the case as definitively as lawyers can ever

Non-Profit Organization U.S. Postage Paid Permit No. 401 Anchorage, Alaska

grandchildren were whining/bouncing everywhere. One woman came alone from North Carolina without her professor husband, another from Seattle arrived with her moving man spouse. Like a seasoned curator, Sharon produced her masks and explained their significance: panic, organized chemo, always living with sunshine and darkness. One relative was scolded for rearranging masks. Another glibly asked, what was her worst experience? Sharon calmly said, “panic” while treatments and daily pills meant “survival.” Sept. 25, 2004: and the priest in a small chapel kept the wedding upbeat. Sharon’s vows sent Kleenex rustling; the long kiss from Tom got lots of laughs. Nov. 19, 2004: and Sharon continued on maintenance drugs. A prolapsed bladder sent her to the emergency room. June 22-27, 2005: and Sharon now required a by-pass; I went to see her at Providence. Sharon was wearing a red beret and purple scarf; she would not be going to the Red Hat convention. Sharon was hooked to a drippy machine and taking lots of pills including shots to increase her iron count; she missed

Supreme Court orders attorney disbarred

ThetoAlaska Felix her cat. Sharon wanted me The Alaska Supreme Court ordered attorney Deborah Ivy disbarred bring over some wine; she wanted to from the practice of law, effective 30 days after its opinion and order dated visit Rome. Nov. 27, 2006: in spite of on- May 20, 2016. VOLUME 37, NO. 3 2013 The Court affirmed the decision ofJulya- September, disciplinary hearing committee and going pain and tumors crushing her Dignitas, semper dignitas urinary tract, Sharon was flying to of the Disciplinary Board that Ms. Ivy violated RPC 8.4(a), (b), and (c) and Bar Rule by knowingly andlong intentionally testifying falsely under oath on San Diego and laughed aloud about Court's decision on15 voting rights act overdue being wheeled through airport secu- three separate occasions. ment gives Congress the “power to Our jOurney with dOgs --page 2 By Kevin Clarkson enforce this article by appropriate Ms. Ivy knowingly and intentionally testified falsely under oath in an rity. as The Chief Justice On June 25, 2013, in Shelby legislation.” But, County v. Holder, the United State explains in Shelby County, the first congressional enforceSupreme Court struck downaccused § 4(b) of century of falsely her brother, an opposing party, of Jean Bundy AICA-USA is a writ- affidavit in which she the Voting Rights Act of 1965 (“VRA”). ment of the Amendment can only be regarded as a failure. Toward the end Given Alaska’s her exceptional having sexually assaulted intrack open court. The courtroom security camer/painter living in Anchorage record in the past several decades, of the 19th Century, several states regardless of what one might think of began enacting literacy tests and invoting video andotherthe video proved that Ms. Ivy’s claims Photography by Dave and Maddy era captured the events methods designed to prevent elections and in other states, the decision seems long overdue for African Americans from voting. These states were primarily in the south Alaska. Because the Court’s decision, were, in the words of the Court, “patently false.” Bundy authored by Chief Justice Roberts and and included Alabama, Georgia, joined by four other Court members, Louisiana, Mississippi, North CaroAt the conclusion ofsignificance a sanctions a hearing committee found Deepest Gratitude to Tom YerSouth Carolina, and Virginia. In has great to Alaska, I lina,hearing, would like to examine the ruling, response, “Congress passed statutes outlawing some of these practices and proof of mitigating facthat Ms. Ivy, an experienced lawyer, provided no bich together with the Court’s reasoning, and make an effort to explain it. Then, facilitating litigation against them. . . .” “[B]ut litigation remained slow like that to briefly explain tors — save for theIthewould fact shewhathad no prior discipline. The Committee and expensive, and the States came decision will mean for Alaska. up with new ways to discriminate found that Ms. Ivy’s conduct threatened toonescause as soon as existing were struck and did cause injury to Historical Background. The Fifteenth Amendment, rati- down.” Absent an effective solution, discriminatory state practices fied in 1870 in the wake of the Civil theseThe her brother and to the legal system. Committee and the Disciplinary continued for decades to come. War, provides that “[t]he right of In this respect, I am sad to report citizens of the United States to vote Board concluded that Ms. Ivy’s conduct warranted disbarment. The Court shall not be denied or abridged by that Alaska’s history is somewhat United States or by any State tainted. Jim Crow laws predominated agreed and affirmedthe the on account ofdecision. race, color, or previous condition of servitude,” The Amendon page 11 In addition to disbarment, the CourtContinued affirmed awards of costs and attorney’s fees against Ms. Ivy and in favor of Bar Counsel and the Bar and Dispatch from Huntsville: The end of a story ordered her to pay a total of $61,282.75 for such costs and attorney’s fees By Susan Orlansky lose a case: Our client was executed. the term used by the Supreme Court of mental retardation as an end run Bar Rag readers may recall the in Atkins, I’ve persisted in the use On June 10, 2003, my partnerunder Jeff around Atkins. Our petition made Bar Rule 16(c). occasional series Jeff wrote for this pe- of that term, although the preferred Feldman and I committed to reprethe SCOTUSblog Petition of the riodical, describing some of the earlier stages in this case where we learned, in trial by fire, about litigating in the state courts in Texas and before the Fifth Circuit Court of Appeals, neither of which is a friendly venue for a convicted murderer seeking to avoid execution. Jeff could not make the final trip to Texas, so sharing the last chapter of our journey into death penalty representation falls to me. Naively, when we began 10 years ago, we believed that this was a relatively straightforward, winnable case. Mr. Chester had been diagnosed as mentally retarded by a psychologist who testified at his punishment trial; the prosecution had not really contested the diagnosis – but had instead argued to the jury that being mentally retarded could be a reason for imposing a death sentence rather than a life sentence. Prior to that, Mr. Chester had been tested as mentally retarded by the Port Arthur, Texas school system and by the Texas Department of Criminal Justice, which put him in its Mentally Retarded Offenders Program when he was incarcerated at the age of 18. However, after the United States Supreme Court decreed in 2002 in Atkins v. Virginia that states may not execute mentally retarded murderers, Texas decided that Elroy Chester wasn’t mentally retarded. (Because “mentally retardation” was the term in use when we started the case, and

The Alaska

BAR RAG

label now is “intellectually disabled.”) Day as one that the Supreme Court The short version of our case is might grant, but the Supreme Court that we lost at every stage, despite denied cert. uncontradicted evidence that our cliWe started over in federal district ent met the standards for diagnosing court. Our habeas petition renewed mental retardation established in the the challenge to Texas’s way of deterAmerican Psychiatric Association’s mining mental retardation. We lost Diagnostic and Statistical Manual again in a ruling issued in June 2008. and the generally similar standards We appealed to the Fifth Circuit. Jeff’s established by the American Asso- last article on the case described the ciation on Mental Retardation, the oral argument we had in New Orleans two national authorities recognized in November 2009. in Atkins. In a 2003 decision called With that as background, here is Ex parte Briseno, the Texas Court of the end of the story. Criminal Appeals decided that, in capWe received a decision from the ital cases, the courts shouldn’t follow Fifth Circuit on December 30, 2011, these standard medical definitions of denying the appeal. It was a 2-1 demental retardation but should apply cision, with a great dissent by Judge a set of factors the court invented, Dennis, who understood all that is which focus heavily on whether the wrong with the way Texas determines defendant could plan a crime. mental retardation in capital cases. A In 2004 we had a four-day eviden- great dissent is satisfying for a lawyer, tiary hearing in Beaumont, Texas, but it does the client no good at all. the county seat for Jefferson County. We filed a petition for certiorari with Because our client was capable of the the U.S. Supreme Court. We made simple planning involved SCOTUSblog again. Our in committing some very case was one of several ugly crimes, the trial judge Uniform bar presented to the Supreme disregarded our evidence exam proposal: Court around that time and determined that, unthat challenged the way der Briseno, our client was See Page 15. states were applying Atnot mentally retarded. kins. Some commentators In 2007 we lost our apbelieved the time was ripe peal to the Texas Court of Criminal for the Supreme Court to take steps Appeals, which deferred to the trial to enforce Atkins and to stop states’ court’s findings of fact. Our first petition for certiorari to the U.S. Supreme Continued on page 12 Court challenged the Texas definition

Known for its often-irreverent and always-topical content, the Alaska Bar Rag is the official newspaper of the Alaska Bar Association. www.alaskabar.org

Alaska Bar Association P.O. Box 100279 Anchorage, Alaska 99510

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