The Prosecution Goes Through Withdrawal & More

On learning of the defense affidavit, Mary Anne Henry rushed off a memorandum to Judge Schulz, demanding that the withdrawal threat be addressed. “The affidavit is a delay tactic rather than a concern about the competency of attorneys,” Henry charged, adding that the withdrawal threat was “an attempt to blackmail this court into giving them what they otherwise couldn’t get — a continuance of the trial.”

withdrawal
Mary Anne Henry
(copyright Hall Anderson)

Brant McGee, responding for the defense, answered back that it was, “a little ridiculous that the prosecutor feels compelled to raise this issue now.” The question of Peel’s representation in court, McGee said, was between him and his attorneys.

Schulz felt the issue was of sufficient importance to order Peel and all three of his attorneys to appear in court for a hearing on the withdrawal issue. When McGee complained about the expense of bringing Peel to Ketchikan along with his custodian, Schulz shot back that the bail release won by the defense required Peel’s attendance at crucial hearings. The judge added that the issue of possible withdrawal by Peel’s attorneys had to be settled before the trial — with the defendant present.


And still Peel’s team kept up the attack. In a hearing on the trial schedule, they asked the judge to limit the state’s opening statement to two and a half hours, arguing that a day-long opening statement by the prosecution would unduly influence the jury. They lost, in part because Mary Anne Henry countered that, “We do need a lot of time to present the thousands and thousands and thousands of bits and pieces that are involved in this case.”

One of those bits and pieces was physical evidence that hadn’t been found. Henry told the court that FBI chemists recently had examined evidence taken from the burned Investor and had found no trace of drugs. Henry also noted that the state’s evidence was virtually all circumstantial — and in that admission handed the defense a measure of satisfaction. Just months earlier, Henry had insisted there was strong physical evidence implicating John Peel.

withdrawal
Investor Hull (courtesy Alaska State Archives)

But after another defeat — this time on the defense request for a trial schedule that gave out-of-town attorneys a week off every third week to attend to other business — Brant McGee finally expressed exasperation at the way things were going for Peel’s team. “There is the element of home town advantage,” he said of the denial of more time off during the trial. [1]

The prosecution was hardly the picture of composure, however, and never was that more evident than on December 4, 1985. Under the direction of Mary Anne Henry, Trooper Sergeant Roy Holland had gone to the Ketchikan International Airport and opened a package addressed to the public defender’s office in Ketchikan. What he was looking for — and what he found — were prosecution copies of the defense motion to dismiss the indictment against Peel. The state, apparently, could not wait to get its hands on the document.

Henry later explained to the judge that the state got into the package only to retrieve documents meant for them. She said Brant McGee’s secretary had told her the package was on its way, and added she had already started to get questions about the latest defense motion to dismiss charges against John Peel. “I simply wanted the motions so that I could respond to questions from the press,” Henry said unconvincingly.

“I find their explanation unacceptable,” retorted McGee. “I resent their opening our mail.” Resented it, yes, but in the twitch of a nerve the defense suddenly found itself back on the offensive. That feeling was reinforced by two of Judge Schulz’s recent rulings.

Although the prosecution won the right to use the trial testimony of witnesses who had circumstantially implicated Peel, the defense won the right to present a psychologist who strongly criticized the means used by police to get those eyewitness identifications. [2] More importantly, Judge Schulz issued a ruling that supressed use of John Peel’s March 1984 police statement at trial. All the prosecution could do was hope that the state Court of Appeals would overturn the judge’s decision.


[1] All three defense attorneys were headquartered elsewhere, either in Anchorage or out-of-state. The time and expense of traveling back and forth to Ketchikan put a crimp in their attention to other cases, not to mention their pocketbooks.

[2] The psychologist in question was famed memory researcher, Dr. Elizabeth Loftus. Loftus would call into question the photo line-up method police used when they interviewed witnesses after Peel became a suspect in the fall of 1983. In the case of Alaska vs. Peel, she noted that several eyewitnesses provided a physical description of the man driving the skiff away from the burning Investor. All witnesses included the specific detail that the man they saw was wearing a baseball cap. “In the photo lineup,” Loftus recalled, “the suspect was the only person wearing a baseball cap.”


Excerpts from the unpublished original manuscript, “Sailor Take Warning,” by Leland E. Hale. That manuscript, started in 1992 and based on court records from the Alaska State Archive, served as the basis for “What Happened in Craig.”

Copyright Leland E. Hale (2019). All rights reserved.


Craig

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