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Baker v. State4/15/2005
ut after much wrangling between the parties. One would therefore expect howls of protest from Baker's attorney, and from the prosecutor as well, when these two attorneys received notice on the afternoon of October 11th that Judge Andrews had vacated Judge Finn's trial dates and had instead set Baker's trial for the following day (October 12th).
But neither attorney responded to Judge Andrews by telling her that they had just been in court earlier that day, and that they had settled on October 19th and 20th as the only trial days that were acceptable to all sides. Instead, when Baker's assistant public defender filed her response to Judge Andrews's new trial date, she simply reiterated that she would be unavailable between October 13th and October 26th. And when the prosecutor responded to Judge Andrews, he simply reiterated that his witnesses would be unavailable unless the trial was held between October 18th and October 20th.
Why didn't either of these two attorneys protest Judge Andrews's decision and tell her that they wished to stick with the trial dates hammered out in front of Judge Finn earlier that day? The record contains no explanation.
My two colleagues infer, from this lack of protest, that the Public Defender Agency told Baker's assistant public defender that there would be no replacement attorney - either because the Agency was unable to assign a new attorney to Baker's case on a week's notice, or because the Agency was unwilling to send an attorney into court unprepared. Following this train of inference, my colleagues conclude that Baker's attorney did not insist on Judge Finn's trial dates because the attorney knew that she was still the one representing Baker, and because she would not be available for a trial on those dates.
My colleagues' inferences may be true. Alternatively, one could infer that the defense attorney's lack of protest stemmed from the fact that, later on October 11th, Baker told the defense attorney that he had reconsidered his situation and had decided that he did not wish to go to trial with an unprepared attorney.
The problem is that the record available to us does not resolve whether either or both of these inferences are true, or whether there is yet another explanation for the two attorneys' seemingly strange responses to Judge Andrews's action.
My colleagues offer the alternative theory that, even if Judge Andrews could not know for sure what prompted the two attorneys' responses, she was nevertheless authorized to take the attorneys' responses at face value and to schedule Baker's trial for early December - the amount of delay that was apparently needed so that the trial would take place when the two attorneys and their witnesses were available.
As legal support for this alternative, my colleagues rely on this Court's decision in State v. Jeske, 823 P.2d 6 (Alaska App. 1991), where we held that when a defense attorney requests a continuance, " judge setting the date for the defendant's trial is entitled to rely upon the fact that [Criminal Rule 45] is tolled during that continuance, at least until the judge is affirmatively apprised of the defendant's objection to the continuance." My colleagues reason that because Baker's attorney was asking for a continuance, and because Judge Andrews was never affirmatively notified that Baker did not assent to his attorney's request, Judge Andrews was justified (under Jeske) in concluding that Rule 45 would be tolled during the requested continuance.
To me, this comes too close to legal legerdemain. Yes, Baker did not affirmatively notify Judge Andrews that he did not assent to his attorney's request for a continuance. But Baker
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