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  • Writer's pictureAttorney Michael Horowitz

Attorney Horowitz wins appellate reversal on Confrontation grounds

Attorney Horowitz won the reversal of our client’s conviction in Gomez v. State. Client was accused of attempted sexual assault after he met a person in town and later spent an evening drinking with them. That person, the complainant, claimed that client attempted to sexually assault them but did not show up at trial to testify. Rather, the prosecution played the jury complainant’s 911 call and on scene audio. The prosecution also argued that client could have subpoenaed complainant to trial if he wanted to present her testimony.

On appeal, Attorney Horowitz argued that the 911 call and the on-scene audio was testimonial hearsay under the Sixth Amendment to the United States Constitution and Article I, Section 11 of the Alaska Constitution, and that allowing that hearsay violated our client’s rights to confrontation. We also argued that the prosecution impermissibly shifted their burden of proof to client by arguing that client could have brought in the missing witness. The Alaska Court of Appeals disagreed with our argument about the 911 call but agreed with our argument about the on-scene interview recording. Based on the Court’s conclusion that admitting the on-scene audio violated client’s state and federal constitutional rights to confrontation, the Court reversed client’s conviction and held that he was entitled to a new trial. Because that one issue was sufficient to reverse client’s conviction, the Court did not address our other arguments.

Coincidentally, Attorney Horowitz argued an almost identical case in the University of Michigan Law School’s Henry M. Campbell Moot Court competition back in 2005. The moot court question was based on the United States Supreme Court’s decision in Crawford v. Washington, which was decided the year prior. Crawford was argued and won by University of Michigan Law School alum Jeffrey L. Fisher, who also argued Blakely v. Washington, Riley v. California, Obergefell v. Hodges (as co-counsel), and several other landmark U.S. Supreme Court decisions.

The decision will be published in the Pacific Reporter and is available here for download:

Gomez v. State Opinion ap-2731
Download PDF • 161KB


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