Edwin v. State
In Edwin v. State, Alaska App. Memorandum Opinion No. 3510 (November 27, 1996), 1996 WL 685765, the Court noted that Edwin failed to present any admissible evidence that his trial attorneys even knew that Edwin's vocal apparatus could have been repaired in a relatively short time, and that therefore Edwin might be able to testify normally if Judge Savell was willing to grant a short delay of the trial.13 In fact, in that first post-conviction relief litigation, one of Edwin's trial attorneys submitted an affidavit stating that she had been in contact with Edwin's medical providers, and "she recalled being advised in June of 1995 i.e., approximately two months before Edwin's trial that Mr. Edwin would be having no surgery or medical procedures until after his trial." (Edwin, 2007 WL 1723408 at 4.)
But Edwin contended that it was his attorneys who knowingly decided to delay any medical procedures until after the trial.
On this issue, Edwin offered a note written by his consulting doctor, Dr. Thomas Wells. This note indicated that Dr. Wells had spoken with at least one of Edwin's attorneys, and the note stated, "Surgeries will be deferred til after trial in August."
Because this note was worded in the passive voice, the note was ambiguous on the issue of who had decided that Edwin's surgeries would be deferred until after his trial. Conceivably, the note could mean that Dr. Wells, after learning the date of Edwin's trial, decided that it would be better to postpone Edwin's surgeries until after the trial. But Edwin's post-conviction relief attorney asserted that this note was, in fact, Dr. Wells's memorialization of his willingness to abide by a request from Edwin's trial attorneys to defer any surgeries until after the trial.
Judge Savell ruled that he did not have to hold an evidentiary hearing to resolve this issue of fact because Edwin had failed to properly place this factual issue in dispute. Judge Savell noted that Edwin's post-conviction relief attorney relied solely on the doctor's note (which was hearsay when offered on this point), and the attorney did not submit an affidavit from Dr. Wells to support her suggested interpretation of the note. The lack of an affidavit, Judge Savell ruled, was procedurally fatal to Edwin's contention that his trial attorneys made the decision.
On appeal, the Court upheld Judge Savell's ruling on this point of procedure.