04/08/2009 01:00 PM House JUDICIARY

HB 140 - JURY NULLIFICATION                                                                                                   
                                                                                                                                
1:08:38 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE  BILL NO.  140,  "An  Act relating  to  juries in  criminal                                                               
cases; and providing for an effective date."                                                                                    
                                                                                                                                
CHAIR RAMRAS noted that public testimony on HB 140 was closed.                                                                  
                                                                                                                                
REPRESENTATIVE COGHILL,  speaking as the sponsor,  indicated that                                                               
HB 140  is meant to  provide jurors  with more of  an independent                                                               
voice because  currently they  are totally  under the  control of                                                               
the  judge, and  thus  need  more discretion  of  their own;  "My                                                               
general move is  to try to include the jurors  in the application                                                               
of the  law ... and the  exoneration or conviction of  people who                                                               
are charged by  the state."  He relayed that  he favors Amendment                                                               
1, which,  he posited, would  address concerns regarding  what he                                                               
called  "renegade  juries"; Amendment 1,  labeled  26-LS0603\A.1,                                                               
Luckhaupt, 3/31/09, read:                                                                                                       
                                                                                                                                
     Page 1, line 1, following "cases;":                                                                                      
          Insert "amending Rule 16, Alaska Rules of                                                                           
     Criminal Procedure;"                                                                                                     
                                                                                                                                
     Page 2, following line 8:                                                                                                  
     Insert new subsections to read:                                                                                            
          "(g)  Except as provided in (h) of this section,                                                                      
     Rule 16,  Alaska Rules  of Criminal  Procedure, applies                                                                    
     to  discovery in  cases  where  the defendant  requests                                                                    
     that the jury be informed  of the jury's power to judge                                                                    
     the  just application  of the  law and  to vote  on the                                                                    
     verdict according to conscience.                                                                                           
          (h)  At least 30 days before trail, the defendant                                                                     
     shall disclose to the prosecution                                                                                          
               (1)  the defendant's intent to request that                                                                      
     the jury be  informed of the jury's power  to judge the                                                                    
     just application of the law  and to vote on the verdict                                                                    
     according to conscience;                                                                                                   
               (2)  the legal theory of the defendant's                                                                         
     claim  that   the  law  is  unjustly   applied  to  the                                                                    
     defendant;                                                                                                                 
               (3)  a list of witnesses, other than expert                                                                      
     witnesses,  that the  defendant  is likely  to call  in                                                                    
     support of the  claim that the law  is unjustly applied                                                                    
     to the defendant."                                                                                                         
                                                                                                                                
     Page 2, following line 8:                                                                                                  
     Insert a new bill section to read:                                                                                         
        "*  Sec.  2. The  uncodified  law  of the  State  of                                                                  
     Alaska is amended by adding a new section the read:                                                                        
          INDIRECT COURT RULE AMENDMENT. AS 12.45.017(g)                                                                        
     and (h), added  by sec. 1 of this Act,  have the effect                                                                    
     of  amending   Rule  16,   Alaska  Rules   of  Criminal                                                                    
     Procedure,  by  requiring  certain disclosures  by  the                                                                    
     defendant."                                                                                                                
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
CHAIR RAMRAS  offered his  belief that  Amendment 1,  by amending                                                               
Rule 16 of the Alaska  Rules of Criminal Procedure, would provide                                                               
safeguards for jury nullification.                                                                                              
                                                                                                                                
1:14:25 PM                                                                                                                    
                                                                                                                                
RICK SVOBODNY, Deputy Attorney  General, Central Office, Criminal                                                               
Division, Department of  Law (DOL), said Amendment  1 would allow                                                               
for discovery  of the legal  theory that's going to  be presented                                                               
to the  jury.  Presently,  both sides  know what the  theory [for                                                               
the  prosecution] is  going  to be  because  that information  is                                                               
provided in the indictment, and  although the prosecution doesn't                                                               
get information  about the defense's case  because Alaska doesn't                                                               
have reciprocal  discovery, that generally hasn't  been a problem                                                               
because the prosecution  can usually figure out  what the factual                                                               
disputes  will be.   However,  in instances  where the  defendant                                                               
seeks jury nullification, there is  no way for the prosecution to                                                               
know  what theory  will  be used  in an  attempt  to justify  the                                                               
defendant's  actions  in committing  a  crime.   He  indicated  a                                                               
preference for  having that type of  discovery if HB 140  ends up                                                               
passing.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  HOLMES   asked  why  [Amendment   1's  reciprocal                                                               
discovery] wouldn't  be barred by  existing Alaska  Supreme Court                                                               
decisions, given that it would occur  before the guilt phase of a                                                               
trial is over.                                                                                                                  
                                                                                                                                
MR. SVOBODNY pointed out that  Amendment 1 simply stipulates that                                                               
the prosecution shall be informed of  what theory will be used in                                                               
an attempt  to justify  the defendant's  actions in  committing a                                                               
crime.   He  explained that  in  the Alaska  Supreme Court  case,                                                               
Scott v.  State, 519  P.2d 774 (Alaska  1974), the  court allowed                                                             
the State to  be notified of legal defenses -  theories - but not                                                               
of who  the defense's witnesses would  be.  Under HB  140, "it'll                                                               
be cowboy time" with no  one knowing beforehand what legal theory                                                               
would be presented by the defense.                                                                                              
                                                                                                                                
CHAIR RAMRAS  made a motion  to adopt Amendment 1  [text provided                                                               
previously].                                                                                                                    
                                                                                                                                
1:19:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES objected.                                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  whether  the  DOL would  support                                                               
HB*140 if Amendment 1 were not adopted.                                                                                         
                                                                                                                                
MR.  SVOBODNY  said no.    In  response  to other  questions,  he                                                               
clarified that [the  DOL] doesn't support HB 140,  either with or                                                               
without Amendment 1, but feels that  HB 140 would be "less worse"                                                               
with  the  adoption of  Amendment  1.    In response  to  further                                                               
questions,  he  acknowledged  that   Amendment  1  has  potential                                                               
constitutional difficulties, but doesn't  think it would increase                                                               
the risk  that the  whole bill  would be  found unconstitutional.                                                               
House Bill 140  is doing away with  representative government, he                                                               
remarked, adding that  although it is technically  correct to say                                                               
that  the  concept  of  jury   nullification  is  not  inherently                                                               
unconstitutional and simply has  equal protection and due process                                                               
problems,  and although  constitutional scholars  differ on  what                                                               
"deciding law"  means, "under  either theory, this  is new."   In                                                               
response  to  questions,  he reiterated  his  comments  regarding                                                               
Scott.                                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out,  though, that  [counter to                                                               
Scott,]  Amendment   1  requires  the  defense   to  provide  the                                                             
prosecution  with a  list of  the witnesses  the defense  will be                                                               
calling.  Doesn't this increase the risk of unconstitutionality?                                                                
                                                                                                                                
MR. SVOBODNY  observed that there  is always a risk  of something                                                               
being  declared unconstitutional  whenever  the prosecution  asks                                                               
for information from the defense.   "My view is, the bill will be                                                               
found unconstitutional and it is  less likely that ... [Amendment                                                               
1]  -  if it  were  attached  to  another  bill that  dealt  with                                                               
something else - would be  found unconstitutional than the entire                                                               
idea of the bill."                                                                                                              
                                                                                                                                
1:23:38 PM                                                                                                                    
                                                                                                                                
A  roll call  vote was  taken.   Representatives Coghill,  Gatto,                                                               
Lynn, and Ramras voted in  favor of Amendment 1.  Representatives                                                               
Dahlstrom, Gruenberg,  and Holmes  voted against it.   Therefore,                                                               
Amendment 1 was adopted by a vote of 4-3.                                                                                       
                                                                                                                                
1:24:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL  moved to report  HB 140, as  amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying fiscal notes.                                                                                                      
                                                                                                                                
REPRESENTATIVE DAHLSTROM objected.                                                                                              
                                                                                                                                
REPRESENTATIVE COGHILL  said he disagrees with  the argument that                                                               
passage of  HB 140  would result  in lawlessness,  surmising that                                                               
everyone in  the criminal  justice system  except for  jurors are                                                               
currently  entrusted  with  understanding   their  roles  in  the                                                               
system.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  DAHLSTROM said,  "We as  a legislature  determine                                                               
the law,  and I  think we run  into a huge  problem when  we have                                                               
different  regions  of  the  state   interpreting  the  laws  ...                                                               
[differently]."  If  HB 140 were to pass, it  would become common                                                               
knowledge that  a person  could go  to a  particular area  of the                                                               
state  and get  away with  certain crimes  simply because  of how                                                               
jurors in that area are applying the law.                                                                                       
                                                                                                                                
REPRESENTATIVE  GATTO said  he's  seen this  occur in  situations                                                               
involving the crime of driving  under the influence (DUI); jurors                                                               
that  have  been  convicted  of DUI  themselves  are  willing  to                                                               
forgive defendants charged with DUIs.   "I'm very concerned about                                                               
application, here;  ... I believe  in trusting the  citizens, but                                                               
laws  are  difficult to  understand,"  he  remarked, adding  that                                                               
jurors would have to read  all laws, which even legislators don't                                                               
do except in part.                                                                                                              
                                                                                                                                
REPRESENTATIVE  COGHILL  offered  his  belief  that  Amendment  1                                                               
addresses the jury's  power to judge the just  application of the                                                               
law.                                                                                                                            
                                                                                                                                
CHAIR  RAMRAS  noted  that  the  appointee  to  the  position  of                                                               
attorney general, Wayne  Anthony Ross, has bragged  about his use                                                               
of jury nullification in a case in Kotzebue.                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG said  he opposes HB 140  because it only                                                               
goes one  way, and if a  guilty defendant is acquitted  then that                                                               
can't be cured because the case would then not be reviewable.                                                                   
                                                                                                                                
CHAIR RAMRAS  indicated that  he agrees  with Mr.  Ross regarding                                                               
jury nullification.                                                                                                             
                                                                                                                                
1:30:36 PM                                                                                                                    
                                                                                                                                
A roll call  vote was taken.  Representatives  Coghill and Ramras                                                               
voted in favor  of reporting HB 140, as  amended, from committee.                                                               
Representatives  Gatto, Lynn,  Gruenberg,  Holmes, and  Dahlstrom                                                               
voted against  it.  Therefore, HB  140, as amended, failed  to be                                                               
reported from  the House Judiciary  Standing Committee by  a vote                                                               
of 2-5.