Corinne Vorenkamp, Assistant District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for Petitioner.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Respondent.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Superior Court Judge Robert B. Downes dismissed an indictment against Brian Galbraith because the judge found that Galbraith was incompetent to stand trial and that he would not recover his competency within a reasonable time. The State then secured a second indictment with identical charges, filed it as a new case, and then filed a peremptory challenge against Judge Downes.
Presiding Judge Douglas Blankenship then issued an order denying the peremptory challenge that the State now appeals. We conclude that the parties should not receive another opportunity to challenge the assigned trial judge when, following a defendant's declaration of incompetency, the State subsequently files an identical indictment.
Facts and proceedings
A Fairbanks grand jury indicted Brian Galbraith on charges of murder in the first degree  and assault in the first degree  on March 16, 2007. The case was assigned to Judge Downes. Over the next several months, the judge presided over several pretrial hearings concerning Galbraith's competence. Judge Downes eventually concluded that Galbraith was unable to understand the proceedings against him or to assist in his own defense.
The judge accordingly committed the defendant to the Alaska Psychiatric Institute for additional evaluation and later scheduled a hearing to assess the necessity for extended commitment. After the hearing, Judge Downes was not convinced that there was a substantial probability that Galbraith would regain his competency within a reasonable period of time. Based on these findings, on April 17, 2008, the judge entered an order dismissing the charges without prejudice as required by AS 12.47.110(b).
After the dismissal, Galbraith remained at the Alaska Psychiatric Institute on a voluntary commitment status. On May 1, the State filed a motion for reconsideration, supported in part with an affidavit stating that Galbraith had requested release. After Judge Downes denied the motion for reconsideration, the State secured an indictment on identical charges of murder in the first degree and assault in the first degree.
The new indictment received a new case number, and the case was assigned to Judge
Downes at arraignment on June 13, 2008. The State then filed a peremptory challenge of Judge Downes on June 18. At a continued arraignment, however, Judge Blankenship ruled that the State could not peremptorily challenge Judge Downes because the new indictment was a continuation of the case that had been assigned to Judge Downes in 2007. The State ...