from the Superior Court, Third Judicial District, Anchorage,
Trial Court No. 3AN-08-13715 CR Eric A. Aarseth, Patrick J.
McKay, and Jack W. Smith, Judges.
Keane-Alexander Crawford, in propria persona, Seward, for the
Steiner, Attorney at Law, Bend, Oregon, appearing at the
Court's request to argue the Appellant's position.
Diane L. Wendlandt, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
General, Juneau, for the Appellee.
Douglas O. Moody, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, appearing for amicus
curiae Alaska Public Defender Agency, aligned with the
Holt, Deputy Public Advocate, Anchorage (the brief), Margaret
McWilliams, Assistant Public Advocate, Juneau (oral
argument), and Richard Allen, Public Advocate, Anchorage,
appearing for amicus curiae Office of Public Advocacy,
aligned with the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
person is charged with a crime by the State of Alaska, and if
that person is unable to afford a private defense attorney,
that person is entitled to the services of a defense attorney
at public expense under the auspices of either the Public
Defender Agency or the Office of Public Advocacy.
pertinent statute, AS 18.85.100(a), actually declares that
indigent criminal defendants are entitled to two
types of services at public expense: (1) "to be
represented ... by an attorney to the same extent as a person
retaining an attorney is entitled", and (2) "to be
provided with the necessary services and facilities of this
representation, including investigation and other
when a criminal defendant receives the services of a
court-appointed attorney through either the Public Defender
Agency or the Office of Public Advocacy, the defendant is
entitled to have the agency provide the necessary incidents
of that legal representation - for example, to pay for any
necessary clerical support, investigative services, and
expert evaluations and testimony.
defendant in this case, Keane-Alexander Crawford, was charged
with murder for shooting and killing his sister's
fiancé, Anthony Brown, following a physical
altercation between the two men. Crawford qualified for
representation at public expense, but he waived his right to
counsel and chose to represent himself. (There were various
times during the trial court proceedings when Crawford
received court-appointed "standby counsel" to
assist him, but Crawford remained in control of the
litigation of his case.)
various times during the pre-trial proceedings in this case,
Crawford asked the superior court to supply him with public
funds to hire a number of expert witnesses. In one instance
(a request to hire a DNA testing laboratory), Crawford
identified the type of expert evidence that he wished to
introduce, and he explained why he believed that this
evidence would be important to his defense. After hearing
Crawford's explanation, the superior court ruled that
reasonable attorneys would not spend money for the DNA
testing that Crawford proposed, so the superior court denied
Crawford's request for funds. Crawford has not appealed
from this one instance, Crawford failed to apprise the
superior court of concrete, case-specific reasons why he
wanted to retain the various experts he talked about, and he
failed to explain why these experts' evaluations or
analyses would constitute a significant component of his
superior court denied Crawford's various requests for
public funds to hire experts, and Crawford now argues that
the superior court's rulings on this issue violated his
right to due process of law.
particular, Crawford argues that the superior court committed
error when the court denied Crawford's request for public
funds to hire a medical expert. In his brief to this Court,
Crawford asserts that he needed a medical expert who might
support Crawford's assertions (1) that just before the
shooting, the victim, Anthony Brown, strangled Crawford to
the point where Crawford became unconscious or
semi-conscious, and (2) that as a result of this alleged
strangulation, even after Crawford regained consciousness, he
was "deprived ... of the ability to accurately or
rationally perceive his surroundings, including what he
[mistakenly] believed to be his pursuit by Brown."
explain in more detail in this opinion, we reject
Crawford's claim of error because Crawford never informed
the superior court of this theory of relevance when he made
his requests for a medical expert. Under the pertinent
decisions of the United States Supreme Court, an indigent
defendant who seeks public funding for an expert must
affirmatively explain the significance of, and the need for,
that particular type of expert analysis. Because Crawford
never informed the superior court of the theory that he
currently proposes for needing a medical expert's
analysis, we hold that the superior court did not commit
error when it denied Crawford's request for public
analyze Crawford's case, we must discuss other legal
issues. Paramount among these issues is the question of
whether an indigent criminal defendant is entitled to have
the Public Defender Agency or the Office of Public Advocacy
provide the funding for litigation support services - for
example, clerical and secretarial services, investigative
services, and consultation with experts - even though the
indigent defendant declines legal representation at public
expense through these agencies.
answer this question, we must interpret AS 18.85.100(a) - the
statute that guarantees indigent defendants
"[representation] by an attorney to the same extent as a
person retaining an attorney" and "the necessary
services and facilities of this representation". More
specifically, we must decide whether the services described
in this statute are a unified package of services that
indigent defendants are entitled to receive when they invoke
their right to counsel at public expense - or whether,
instead, indigent defendants have a right to demand that the
Public Defender Agency or the Office of Public Advocacy
provide them with ancillary "services and
facilities" at public expense even if they reject the
assistance of a publicly funded attorney.
earlier decision in Crawford's case - Crawford v.
State, 337 P.3d 4 (Alaska App. 2014) - we addressed this
question of statutory interpretation but did not answer it.
Instead, because this is an issue of first impression in
Alaska, and because the resolution of this issue will
obviously affect many other criminal defendants, we asked for
supplemental briefing - not only from Crawford and the State,
but also from the Public Defender Agency and the Office of
Public Advocacy. When those two agencies informed us that
their interests in this litigation were adverse to
Crawford's interests, we allowed the agencies to file
amicus curiae briefs, but we appointed independent
counsel to argue Crawford's side of this issue.
having fully considered this matter, we conclude that the
various services described in AS 18.85.100(a)(1)-(2) are one
integrated whole. The statute guarantees this package of
services to indigent defendants who invoke their right to
counsel at public expense. But the statute does not create
separate and severable guarantees of public funding for each
service listed in the statute.
additionally conclude (for reasons explained in this opinion)
that Alaska Administrative Rule 12(e) does not authorize a
court to directly appoint investigators or experts for
Rule 12(e) authorizes a court to appoint "counsel, or a
guardian ad litem, or other representative" for an
indigent person if the court determines that the appointment
is not authorized by AS 18.85.100(a), and that the
appointment is required by law or rule. Although Rule 12(e)
anticipates that attorneys and guardians ad litem appointed
under this rule might need the services of investigators or
expert witnesses (and might ask the Court System to pay for
these services), Rule 12(e) does not authorize a trial court
to provide money directly to pro se defendants who
wish to obtain these investigative or expert services.
interpretation of AS 18.85.100(a) and Administrative Rule
12(e) raises other significant questions.
there is the question of whether it is constitutional for a
state to link representative services and ancillary services
in this manner - that is, can the state require indigent
criminal defendants to accept legal representation at public
expense in order to obtain the other litigation support
services at public expense?
if it is not constitutional to link these services -
in other words, if indigent defendants who reject legal
representation at public expense are nevertheless entitled to
public funding for other litigation support services such as
clerical staff, investigators, and experts - then where is
this public funding to come from?
raise these questions because, ultimately, they must be
answered, and because (depending on the answers) our
legislature may be required to take action.
explain our conclusions in more detail.
constitutional right to have expert witnesses and other
support services funded at public expense, even though Alaska
statutes and court rules currently do not provide public
funding for these support services
matter of constitutional law, indigent criminal defendants
have a circumscribed right to obtain the services of experts
at public expense. The seminal case on this point of law is
Ake v. Oklahoma. 
indigent defendant in Ake was prosecuted for murder.
Ake's attorney wished to present a defense of insanity,
but the trial court refused a defense request to have Ake
examined by a psychiatrist at public expense.  The Supreme Court
reversed Ake's conviction, holding "that when a
defendant has made a preliminary showing that his sanity at
the time of the offense is likely to be a significant factor
at trial, the constitution requires that a State provide
access to a psychiatrist's assistance on this issue if
the defendant cannot otherwise afford one."
More generally, the Supreme Court stated that the due process
clause of the constitution guarantees indigent defendants
"basic tools of an adequate defense".
Ake, this "basic tool of an adequate
defense" was an evaluation by a psychiatrist. But other
courts, relying on Ake, have held that this due
process guarantee can apply to non-medical experts as well.
indigent criminal defendants are not entitled to experts at
public expense simply for the asking. A defendant who seeks
public funding for an expert under Ake must make a
threshold showing that, given the facts of the case and given
how the case will be litigated, the proposed expert's
evaluation will be a significant component of the defense
case.  Absent this showing, a court can properly
deny a defendant's request for public funding.
Supreme Court clarified this point in Caldwell v.
Mississippi, 472 U.S. 320, 323-24 n. 1; 105 S.Ct. 2633,
2637 n. 1; 86 L.Ed.2d 231 (1985) - where the Court held that
a trial court can properly deny a defendant's request for
public funds to hire experts when the defendant has offered
only "undeveloped assertions that the requested
assistance would be beneficial."
reasons we are about to explain, we conclude that, with one
exception (the request for DNA testing that we previously
referred to), Crawford failed to offer the superior court
sufficient information as to why the evaluation and/or
testimony of his proposed experts would be a significant
component of his defense. Crawford therefore failed to make
the threshold showing required by Ake v. Oklahoma
and Caldwell v. Mississippi.
Crawford failed to meet this threshold showing, we need not
decide whether an indigent defendant who shows a genuine need
for experts or other litigation support services is entitled
to public funding for these support services, even if the
defendant rejects a court-appointed attorney - or whether,
instead, the State of Alaska can require indigent defendants
to accept legal representation at public expense (either
through the Public Defender Agency or the Office of Public
Advocacy) if the defendants wish to obtain public funds for
litigation support services.
detailed look at the litigation of this issue in
pre-trial proceedings in Crawford's case lasted more than
a year. During those months, Crawford indicated at various
times that he wanted to consult a variety of experts in
connection with his defense - including a medical expert, a
psychiatric expert, a forensic DNA analyst, a toxicology
expert, a "consciousness" expert, a
"choking" expert, and an expert on child
molestation. But most of these proposed experts were
mentioned only in passing by Crawford and his standby
was one instance where Crawford offered a detailed
explanation of why he believed that a particular expert's
testimony would be a significant component of his defense.
Crawford told the superior court that he wanted to hire a DNA
analyst to run another test of the victim's fingernails
for DNA. Crawford believed that this DNA testing would show
that the victim had sexually abused Crawford's children -
unbeknownst to Crawford at the time of the shooting.
hearing this offer of proof, the superior court concluded
that a reasonable defense attorney would not spend the
thousands of dollars it would take to procure this additional
DNA testing, so the court denied Crawford's request for
public funds to pay for the proposed testing. Crawford has
not appealed this ruling.
only other experts for whom Crawford offered any kind of
explanation were the "medical" expert and the
"psychiatric" expert that Crawford mentioned in his
"[Criminal] Rule 16 Notice and Request for [Office of
Public Advocacy] Assistance" filed in February 2009. In
this pleading, Crawford announced that he intended to call a
"medical expert" and a "psychiatric
expert" at his trial.
regard to the medical expert, Crawford stated that he
intended to present testimony "regarding the physical
effects of being choked unconscious[, ] including the
repetitive blackouts that defendant suffered on the night in
question as a result of being assaulted by the alleged
regard to the psychiatric expert, Crawford stated that he
intended to present testimony suggesting that his
half-sister, Kerri Nichols (the fiancée of the
shooting victim) had "symptoms of Dissociative Identity
Disorder", and that this condition "[a]ffected her
ability to accurately recall the [events] that occurred on
the night in question."
week after Crawford filed this pleading, the State filed an
objection to Crawford's notice, arguing that Crawford had
failed to meaningfully comply with Criminal Rule 16 - both
because he had failed to provide names and contact
information for these proposed experts, and also because he
had failed to supply any information about what these
experts' opinions would actually be.
matter was discussed at a pre-trial conference the following
month (March 2009). However, at this conference, Crawford did
not offer any further description of the kind of medical
expert he was talking about, or what role that expert's
evaluation or testimony would play in Crawford's defense
pre-trial conference, anattorney from the Office of Public
Advocacy offered to speak with Crawford to find out exactly
"for what purpose ... the medical expert [would] be
hired", and then to forward Crawford's request to
the Department of Administration to see if they would approve
matter was next mentioned again at a hearing in April, where
the court addressed the State's objection to
Crawford's notice of experts. During the discussion of
whether Crawford's notice was adequate, Crawford told the
court that he wanted to hire a medical expert "who
[could] testify to [his] condition on that night." But
Crawford also told the court that he had not yet identified
any potential expert witnesses.
another hearing held the following month (on May 5th),
Crawford told the court that he still had not contacted any
potential expert witnesses. At that point, Crawford's
trial was scheduled to begin in seven weeks - on June 22,
10th, at a pre-trial conference, the court addressed the fact
that the scheduled trial date was approaching, and that
Crawford still had not given the State notice of any medical
expert. The court told Crawford that if he decided to get a
medical expert, he needed to promptly notify the State of
what that expert would testify about, so that the State would
have sufficient opportunity to get their own expert.
court held a trial call in Crawford's case the following
week (on June 16th). At that trial call, the prosecutor told
the court that Crawford had mentioned two potential witnesses
- "one relating to strangulation, and one relating to
child molestation" - but that Crawford had not yet given
notice of who these experts were, or what their anticipated
testimony might be.
response, Crawford told the court only that he was
"going to continue to try and find [an] expert",
and he ultimately asked for a continuance of the trial to
give him time to do so.
record shows that, at this time, Crawford and his standby
attorney at the time, Mark Pawlowski, were actively working
on procuring unspecified expert witnesses. In Pawlowski's
submission of expenses to the Court System, he listed 1.7
hours spent on June 9, 2009 "interview[ing] potential
the morning of June 29th, when the parties assembled for
trial, Crawford still had not yet given notice of any
turned out, the superior court continued Crawford's trial
again, this time to give Crawford several weeks to litigate
his alleged problems with the State's pre-trial
on August 3, 2009, Crawford filed a pleading in which he
announced that he was "terminating the services of Mark
Pawlowski" as his standby counsel. In this pleading,
Crawford complained that Pawlowski had not provided him with
any assistance. In particular, Crawford complained that he
still "[did] not yet have the name of even one potential
expert witness or investigator."
pre-trial hearing held that same day, Crawford told the court
that he still needed more time to contact potential medical
experts. The court granted Crawford a three-month continuance
for this purpose - rescheduling Crawford's trial for
November 2, 2009.
note, however, that the record contradicts Crawford's
assertion that he "[did] not yet have the name of even
one potential expert witness or investigator" at the
beginning of August. The record shows that, as of mid-July,
either Crawford or Pawlowski had been in contact
with a potential expert witness - although it was not the
medical expert that Crawford had repeatedly referred to.
Instead, Crawford and/or Pawlowski had contacted a DNA
testing laboratory in Colorado to solicit their services.
demonstrated by the fact that on August 10th (one week after
Crawford told the court that he did not have the name of a
single potential expert witness), Crawford filed a pro
se pleading in which he asked the superior court to
order public funding under Administrative Rule 12(e)(5) in
the amount of approximately $15, 000 to pay for DNA analysis
and expert witness fees.
request was supported by a 3-page "Proposal for
Requested Discovery". This document was generated by the
Carlson Company, a DNA laboratory in Colorado, and it was
dated July 21, 2009.
when Crawford told the court on August 3rd that he had not
yet been able to contact any potential experts, this was not
days after Crawford filed his request for public funds to pay
for the Colorado laboratory's DNA testing, Crawford filed
an "Affidavit [and] Request for Expedited Hearing on
Funding of Necessary Defense Services". In this
pleading, Crawford asserted that, under the Supreme
Court's decision in Ake v. Oklahoma, he was
entitled to public funding "for necessary investigative
and expert witness services". But Crawford offered no
specifics as to what investigative or expert witness services
he was referring to - other than the request for DNA testing
that he had already submitted.
point, as we noted earlier, Crawford's trial was
scheduled for November 2, 2009. Crawford made no further
application to the court concerning investigators or expert
witnesses until his case was called for trial on November
interim, new standby counsel (Glenda Kerry) had been
appointed to assist Crawford, and Crawford's case had
been re-assigned to Superior Court Judge Eric A. Aarseth.
the prospective jurors summoned and waiting, Judge Aarseth
tried to make sure that there were no pending motions that
needed to be resolved before jury selection began. It turned
out that there was a problem securing the attendance of one
of the witnesses that Crawford wanted to call, so Crawford
agreed to a delay of the trial until that matter could be
then asked Judge Aarseth to address his earlier request for
public funding "of some expert testing"
(i.e., the proposed DNA testing). But then Crawford
switched gears - turning from his previous request for DNA
testing, and addressing his desire to hire a "medical
Crawford: [O]ne of the many things I've
requested from the beginning was a medical expert. I mean,
I've said from the beginning, I - I know I shot the guy,
but I was barely able to stand, walk, breathe, see, [or]
think. There's a lot of pieces missing. I mean, I reckon
I know what I told the cops, and what I can tell from bullet
trajectories and things, [and] what I think happened
isn't even what happened. And, I mean, an expert could be
very beneficial to me on that issue[.]
then asserted that he wanted to hire even more experts:
Crawford: It wasn't just that one [DNA] expert
that [I] was asking for money for. It's really - I mean,
the State has eight or ten experts. I wanted at least three
or four on certain issues, and I never got a - I mean,
it's kind of hard to get an expert lined up and ask the
court for money when you don't have the money in the
first place. So I was never able actually to get my hands on
a medical doctor, you know, or any of the other - or a
toxicology expert, because I never had the funding. So I
couldn't really submit requests to pay this guy because I
never had a guy to pay. ... [Y]ou know, I'm going to
trial with no experts against maybe ten experts [for the
then argued that, as a matter of constitutional right,
"experts or other services should be provided [to
indigent defendants] at public expense [if] a reasonable
attorney would provide them for a defendant who had the
ability to pay."
point, Judge Aarseth asked Crawford to specifically identify
what experts and other services he was talking about:
The Court: So let me ask you, Mr. Crawford, this:
When have you provided me with a CV, or [with] any type of
information about what [expert] witness it is that I'm
supposed to [order] one of these ...