for Review from the Superior Court Trial Court Nos.
4BE-16-547 CR & 4BE-16-749 CR, Fourth Judicial District,
Bethel, Dwayne W. McConnell, Judge.
Elizabeth T. Burke, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Petitioner.
Laurence Blakely, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for Respondent Nicori.
No appearance for Respondent Olick.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
State of Alaska has petitioned this Court to review and
reverse two decisions of the superior court: (1) the
court's decision to require the prosecuting attorney to
attend and testify at an evidentiary hearing to investigate
whether the current criminal charges against Peter G. Nicori
and Winifred Olick are the result of actual prosecutorial
vindictiveness, and (2) the court's refusal to allow the
State to seek reconsideration of this decision.
Peter Nicori has filed a cross-petition (File No. A-12886) in
which he asserts that he has already presented a prima
facie case of the appearance of prosecutorial
vindictiveness, and that the superior court should therefore
be placing the burden on the State to affirmatively disprove
this charge of vindictiveness.
reasons explained in this opinion, we GRANT the State's
petition on the second question presented by the
State. We hold that the superior court should have allowed
the State to seek reconsideration of the court's decision
to hold the evidentiary hearing and to require the prosecutor
we are directing the superior court to allow the State to
pursue its motion for reconsideration, we need not reach the
first question presented in the State's petition -
because, now that a motion for reconsideration is pending,
the superior court has not yet issued a final order on the
question of whether to require the prosecutor to testify at
the evidentiary hearing.
regard to the question presented in Nicori's
cross-petition, the cross-petition is DENIED.
procedural history of this litigation
controversy in this case arose when the State re-indicted
Nicori and Olick on more serious charges the day after the
two defendants filed a request for discovery. The defendants
then filed a motion asserting that the timing of the
reindictment created the appearance of prosecutorial
superior court initially found that the defendants had set
forth aprima facie case of vindictive prosecution,
and the court therefore scheduled an evidentiary hearing to
give the State an opportunity to affirmatively rebut this
the defense subpoenaed the prosecuting attorney to testify at
this hearing, the State asked the superior court to
reconsider its decision, and the court granted the
State's request. On reconsideration, the court reversed
itself and declared that ...