03/18/2009 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB15 | |
| HR7 | |
| HB140 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HR 7 | TELECONFERENCED | |
| *+ | HB 140 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 15 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 18, 2009
1:09 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative Carl Gatto
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative John Coghill
OTHER LEGISLATORS PRESENT
Representative Berta Gardner
COMMITTEE CALENDAR
HOUSE BILL NO. 15
"An Act relating to prohibiting the use of cellular telephones
by minors when driving a motor vehicle; and providing for an
effective date."
- HEARD & HELD
HOUSE RESOLUTION NO. 7
Requesting the United States Congress to permanently repeal the
federal unified gift and estate tax.
- MOVED HR 7 OUT OF COMMITTEE
HOUSE BILL NO. 140
"An Act relating to juries in criminal cases; and providing for
an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 15
SHORT TITLE: BAN CELL PHONE USE BY MINORS WHEN DRIVING
SPONSOR(S): REPRESENTATIVE(S) GARDNER, TUCK
01/20/09 (H) PREFILE RELEASED 1/9/09
01/20/09 (H) READ THE FIRST TIME - REFERRALS
01/20/09 (H) JUD, FIN
03/16/09 (H) JUD AT 1:00 PM CAPITOL 120
03/16/09 (H) Moved CSHB 15(JUD) Out of Committee
03/16/09 (H) MINUTE(JUD)
03/18/09 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HR 7
SHORT TITLE: URGE REPEAL OF FEDERAL ESTATE/GIFT TAX
SPONSOR(S): REPRESENTATIVE(S) FAIRCLOUGH
02/23/09 (H) READ THE FIRST TIME - REFERRALS
02/23/09 (H) JUD
03/18/09 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 140
SHORT TITLE: JURY NULLIFICATION
SPONSOR(S): REPRESENTATIVE(S) COGHILL
02/18/09 (H) READ THE FIRST TIME - REFERRALS
02/18/09 (H) JUD
03/18/09 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
RICK SVOBODNY, Acting Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During the hearing on HB 15, spoke to
Amendment 2.
CRYSTAL KOENEMAN, Staff
Representative Anna Fairclough
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HR 7 on behalf of the sponsor,
Representative Fairclough.
RYNNIEVA MOSS, Staff
Representative John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 140 on behalf of the sponsor,
Representative Coghill.
MARGIE CROOK, Member
Fully Informed Jury Association
Alabama
POSITION STATEMENT: Testified on HB 140.
ROB CLIFT
Anchorage, Alaska
POSITION STATEMENT: Encouraged the committee to move forward
with HB 140.
STEPHEN LAFFERTY
North Pole, Alaska
POSITION STATEMENT: Testified in support of HB 140.
FRANK TURNEY, Member
Fully Informed Jury Association
Fairbanks, Alaska
POSITION STATEMENT: Expressed hope that HB 140 is forwarded to
the full body for a vote.
RICK SIKMA
North Pole, Alaska
POSITION STATEMENT: Testified in support of HB 140.
WAYNE MCCREADY
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of HB 140.
SHAWN KITTLE
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 140.
NATHAN SMOOT
North Pole, Alaska
POSITION STATEMENT: Testified in support of HB 140.
OLIVER FLESHMAN
Fairbanks, Alaska
POSITION STATEMENT: Requested the committee's support for HB
140.
KAREN VERNON
Salcha, Alaska
POSITION STATEMENT: Urged the committee to pass HB 140.
LONNIE VERNON
Salcha, Alaska
POSITION STATEMENT: Requested the committee's support for
HB 140.
RITA HYMES
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of HB 140.
VICTOR BUBERGE
North Pole, Alaska
POSITION STATEMENT: Testified in support of HB 140.
ADAM BIJAN
Fairbanks, Alaska
POSITION STATEMENT: Testified that although he supports HB 140,
it could use some changes.
RANDY GRIFFIN
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of HB 140.
MARK RICHARDS
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 140.
MIKE PRAX
North Pole, Alaska
POSITION STATEMENT: Testified in favor of HB 140.
KEN THESING
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 140.
SCHAEFFER COX
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 140.
RICK SVOBODNY, Acting Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 140.
ACTION NARRATIVE
1:09:52 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:09 p.m. Representatives Ramras, Holmes,
Gatto, and Gruenberg were present at the call to order.
Representative Lynn arrived as the meeting was in progress.
HB 15 - BAN CELL PHONE USE BY MINORS WHEN DRIVING
1:11:17 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 15, "An Act relating to prohibiting the use of
cellular telephones by minors when driving a motor vehicle; and
providing for an effective date."
1:11:28 PM
REPRESENTATIVE DAHLSTROM made a motion to rescind the
committee's action of 3/16/09 in reporting CSHB 15(JUD) from
committee for the purposes of a specific amendment. There being
no objection, HB 15, as amended by Amendment 1 on 3/16/09, was
back before the committee.
CHAIR RAMRAS directed the committee's attention to Amendment
[2], labeled 26-LS011\E.1, Luckhaupt, 3/18/09, which clarifies
that a peace office can make a stop authorized by law.
1:12:32 PM
RICK SVOBODNY, Acting Attorney General, Department of Law (DOL),
offered his understanding that the last time this legislation
was before the committee there was debate as to whether probable
cause or reasonable suspicion was required in these stops. He
specified that it could be either. Therefore, Amendment 2
doesn't pick, and therefore the law remains the same for stops
whether it's reasonable suspicion or probable cause.
1:13:27 PM
CHAIR RAMRAS moved that the committee adopt Amendment [2],
labeled 26-LS011\E.1, Luckhaupt, 3/18/09, which read:
Page 1, lines 10-11:
Delete "has probable cause"
Insert "is authorized by law"
REPRESENTATIVE HOLMES objected for the purpose of discussion.
CHAIR RAMRAS requested that Acting Attorney General Svobodny
delineate the difference between terms "probable cause" and
"authorized by law".
ACTING ATTORNEY GENERAL SVOBODNY explained that probable cause,
in simplistic terms, means more likely than not. Therefore,
it's probable that a crime is being committed. However,
reasonable suspicion is a lower standard in which a police
officer can take into consideration several factors and
determine there to be a suspicious circumstance. There may be
legal disputes regarding what standard the law requires for an
event when a car is stopped. The adoption of Amendment 2 would
leave the determination with the court and case law that exists
now. The problem, he explained, arises, because it's a
secondary event. The police aren't supposed to stop people as
an underage person using a cell phone. The stop would be for
driving under the influence, reckless driving, or speeding.
CHAIR RAMRAS surmised then that this is a narrow policy call to
determine whether the standard is probable cause or authorized
by law.
ACTING ATTORNEY GENERAL SVOBODNY relayed that the DOL views
[Amendment 2] as a way not to choose between the two standards
but rather leave it up to the court.
The committee took an at-ease from 1:18 p.m. to 1:19 p.m.
CHAIR RAMRAS withdrew his motion to adopt Amendment [2]. There
being no objection, HB 15, as amended, was before the committee.
CHAIR RAMRAS made a motion that the committee rescind its action
on 3/16/09 in adopting Amendment 1. There being no objection,
it was so ordered, and HB 15 was before the committee.
1:20:54 PM
CHAIR RAMRAS again made a motion to adopt Amendment 2, labeled
26-LS011\E.1, Luckhaupt, 3/18/09. [Text provided previously.]
REPRESENTATIVE HOLMES objected for the purpose of discussion.
ACTING ATTORNEY GENERAL SVOBODNY related that the department
believes that the law as it applies today to stops should apply
to HB 15. Amendment 2 would accomplish the aforementioned. In
further response, Acting Attorney General Svobodny clarified
that the adoption of Amendment 2 would maintain a police
officer's ability to stop a vehicle for probable cause because
that's the law as it applies today. "And so, this language
[with the adoption of Amendment 2] says that whatever the law is
today, whether it's reasonable suspicion or probable cause, that
would be the law as it relates to minors using a cell phone," he
explained.
REPRESENTATIVE GRUENBERG said he would have interpreted the
phrase "as authorized by law" to mean as authorized by law at
the time of the trial not frozen in time at today. He suggested
that to interpret the language as Acting Attorney General
Svobodny does it should say, "was authorized by law on the date
of enactment".
CHAIR RAMRAS inquired as to which standard Representative
Gruenberg preferred.
REPRESENTATIVE GRUENBERG said that he prefers the language
"authorized by law" as inserted by Amendment 2. However, he
highlighted the importance of clarifying the legislative history
with regard to the time to which the law refers.
ACTING ATTORNEY GENERAL SVOBODNY stated, "Either we know it
today because there's a case that's decided on a particular fact
pattern or it's going to be new law a year from now when the kid
gets stopped with the phone."
1:24:50 PM
REPRESENTATIVE HOLMES surmised that the intent of [Amendment 2]
is that whatever the underlying law required to stop an
individual for whatever reason applies.
ACTING ATTORNEY GENERAL SVOBODNY replied yes.
REPRESENTATIVE HOLMES clarified then that there's no attempt to
lower the standard, but rather to defer the discussion.
ACTING ATTORNEY GENERAL SVOBODNY noted his agreement that it's
not an attempt to lower or raise the standard.
REPRESENTATIVE HOLMES pointed out that the legislation creates a
secondary offense and the language in HB 15 is identical, using
probable cause, to the seat belt and booster seat sections.
CHAIR RAMRAS interjected and asked if Representative Holmes
approves Amendment [2] or not.
REPRESENTATIVE HOLMES said that she didn't know.
1:26:37 PM
CHAIR RAMRAS announced that HB 15 would be set aside [with the
motion to adopt Amendment 2 left pending].
The committee took an at-ease from 1:26 p.m. to 1:30 p.m.
HR 7 - URGE REPEAL OF FEDERAL ESTATE/GIFT TAX
1:30:48 PM
CHAIR RAMRAS announced that the next order of business would be
HOUSE RESOLUTION NO. 7, Requesting the United States Congress to
permanently repeal the federal unified gift and estate tax.
1:31:00 PM
CRYSTAL KOENEMAN, Staff, Representative Anna Fairclough, Alaska
State Legislature, speaking on behalf of Representative
Fairclough, sponsor, explained that HR 7 urges Congress to
repeal the federal estate tax. The Economic Growth and Tax
Relief Reconciliation Act of 2001 made significant changes to
the Internal Revenue Service's (IRS) Revenue Code. She noted
that between 2002 and 2009 federal estate taxes and exemption
amounts have been gradually reduced and will be fully repealed
in 2010. However, in 2011 they will be re-implemented.
REPRESENTATIVE GRUENBERG noted that members' packets now include
information regarding the amount of Alaska's estate tax. The
handout relates that in 2005 the state estate tax brought in
nearly $2.5 million and is phasing down to zero in fiscal year
2008.
1:33:21 PM
REPRESENTATIVE GRUENBERG moved to report HR 7 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HR 7 was reported from the
House Judiciary Standing Committee.
HB 140 - JURY NULLIFICATION
1:33:40 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 140, "An Act relating to juries in criminal
cases; and providing for an effective date."
1:34:09 PM
RYNNIEVA MOSS, Staff, Representative John Coghill, Alaska State
Legislature, speaking on behalf of the sponsor, Representative
Coghill, began by relating that HB 140 is not new as the sponsor
introduced similar legislation in 2002. Ms. Moss then
paraphrased from the following sponsor statement [original
punctuation provided]:
House Bill 140 addresses jury nullification.
Representative Coghill asks the legislature to
consider this legislation as an acknowledgement that
the jury is the exclusive judge of the facts and may
decide that the law is unjustly applied to the
defendant.
This legislation enacts provisions in law instructing
the court to allow a defendant the right to inform the
jury of their right to judge the defendant and to
judge the law as it applies to the defendant.
Current jury instructions for Alaskan jurors require
them to "accept and follow the law as instructed by
the judge even though they may have a different idea
about what the law is or ought to be".
HB 140 allows a jury to fully understand their role
and exercise their responsibility as a jury. A jury
is the only thing standing in the way of a government
out of check and inherent rights of citizens being
judge by the law. Jury nullification allows citizens
to have the final say on what is fair in a court of
law.
Indiana, Georgia, and Maryland currently have
provisions in their state constitutions guaranteeing
jurors the right to "judge" or "determine" the law in
all criminal cases.
MS. MOSS then informed the committee that in 2002, then Senator
Donley said, "Today government more often tells American
citizens what to do rather than the other way around." She then
reminded the committee that the forefathers of this nation
founded it on the basis of "for the people and by the people."
However, today there are activist courts, judges, and lawyers.
Furthermore, laws are being passed that engender fear of
aggressive governments, she opined. The sponsor, she relayed,
feels that the jury in a court case should be the last check
when there is a government that's diminishing people's rights.
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]
MS. MOSS said that although cynics will claim that judges and
lawyers don't trust individuals and want to hold the power, she
didn't believe that to be the case. "We feel the balance would
be jury nullification," she related. Ms. Moss explained that HB
140 instructs the court to allow a defendant the right to inform
the jury of its right to judge the defendant and the law as it
applies to that defendant.
REPRESENTATIVE GATTO questioned whether [this legislation] sets
up an activist jury.
MS. MOSS replied yes and offered that this occurred when the
colonists were still under British rule. There were activist
juries that were judging British laws applied to colonists.
1:38:48 PM
REPRESENTATIVE GRUENBERG mentioned that Legislative Legal and
Research Services is in the process of drafting a legal opinion,
and therefore he requested that the committee be allowed to
review the opinion prior to voting on the legislation. He then
referred to language on page 2, lines 4-5, and related his
understanding that this won't apply in civil cases.
MS. MOSS concurred.
REPRESENTATIVE GRUENBERG surmised then that per HB 140 only the
defendant has a right to such a jury instruction, the
prosecution doesn't have a similar right.
MS. MOSS concurred.
REPRESENTATIVE GRUENBERG asked whether the sponsor has any legal
opinions on HB 140.
MS. MOSS answered that although she doesn't have a legal opinion
from Legislative Legal and Research Services, she does have a
memo from Mr. Luckhaupt, legislative counsel. The memo from Mr.
Luckhaupt read as follows: "While jury nullification isn't
inherently illegal or unconstitutional, allowing instruction and
argument to jurors regarding jury nullification could result in
due process or equal protection violations as the law may not be
fairly applied in an equal, consistent, and nondiscriminatory
manner." The aforementioned, she opined, is exactly why the
sponsor introduced the legislation. The sponsor, she went on to
relay, is concerned that people have been charged with felonies
instead of misdemeanors due to pleading down and not fully
prosecuting misdemeanors. Furthermore, the sponsor believes
that the committee should review the trial and jury process. In
further response to Representative Gruenberg, Ms. Moss specified
that the sponsor hasn't requested an opinion from the attorney
general or anyone else.
REPRESENTATIVE GRUENBERG asked whether Ms. Moss has knowledge of
any trial court in the state being asked to give a jury
nullification question. If so, he asked whether it was given in
any trial court in the state.
MS. MOSS recalled receiving testimony in 2002 that confirmed
such.
REPRESENTATIVE GRUENBERG requested then that the witnesses
comment whether they have been instructed or requested an
instruction, or refused to give instructions. He referred to
the aforementioned as unreported rulings. Representative
Gruenberg related his gut belief that jury nullification has
been requested, but it hasn't been allowed.
1:44:34 PM
MARGIE CROOK, Member, Fully Informed Jury Association, explained
that she was asked to be part of the Fully Informed Jury
Association after helping women in prison in Alabama, many of
whom should never have been convicted. She said that she'd
learned that America has 5 percent of the world's population and
25 percent of the world's prisoners. Although DNA has proven
many to be innocent, not all prisoners can be proven innocent
that way. The aforementioned is why it's important, she opined,
for jurors to know their rights and that they can judge both the
law and the facts in order to avoid incarcerating the innocent.
Ms. Crook offered her belief that in Marbury v. Madison, the
court said that any law which is repugnant to the constitution
is null and void and jurors have the right to so judge it and
refuse to convict somebody who's being tried under such a law.
She thanked the committee for reviewing this legislation, and
expressed her hope that Alaska will lead the way for other
states in regard to returning justice to the courts.
1:47:49 PM
ROB CLIFT shared his belief that it is the right of the jury to
judge the law, not just the facts in the case. He relayed that
he's sat at jury selection and has observed potential jurors
being dismissed from service when the individual indicated
he/she would [utilize jury nullification]. Furthermore, Mr.
Clift said he has heard judges instruct jurors that they are not
allowed to [utilize jury nullification]. Therefore, if the
desire is to protect individual liberty, then HB 140 is
important legislation. Mr. Clift opined that juries are in
place so that they can judge the law. Since the nation is
founded on common law, every jury should be informed of [jury
nullification]. In conclusion, Mr. Clift encouraged the
committee to move HB 140 forward.
1:49:56 PM
STEPHEN LAFFERTY related his support for HB 140 and encouraged
the committee to vote in support of the legislation as well.
1:50:29 PM
FRANK TURNEY, Member, Fully Informed Jury Association, noted
that he provided the committee with an educational packet from
the American Jury Institute, the Fully Informed Jury
Association, a white paper on the history of jury nullification,
as well as an essay by former Supreme Court Justice William
Goodloe on jury nullification. Former Supreme Court Justice
Goodloe, he relayed, points out the following:
The Founders view of the jury as being of paramount
importance in defending liberty is easily seen when
examining the words of the Constitution. There are
only 14 words describing freedom of speech and of the
press in the Constitution. But there are 186 words
describing trial by jury in the Constitution. It is
guaranteed in the main body in Article 3, Section 2,
Paragraph 3, and in two amendments, the Sixth and the
Seventh. No other right is mentioned so frequently,
three times, or has as many words devoted to it. It
is plain that our Founders viewed the jury trial right
as the most important right since it gave birth to,
and defended, all other rights.
MR. TURNEY then highlighted that Oregon, Maryland, Georgia, and
Indiana specify in their constitutions that a jury has the right
to judge the law as well as the facts and controversy.
Furthermore, over 20 states, under free speech, recognize jury
nullification under liable and civil cases. Those states that
include jury nullification in liable cases include criminal
cases. Mr. Turney opined that the Bill of Rights is in more
jeopardy than ever. He expressed hope that HB 140 will be
passed out of committee and on to the full body for a vote.
With regard to jury instructions, he noted that he and other
defendants have requested jury nullification instructions in
Alaska and have been denied by the court and the judges. He
then turned attention to the Vietnam era when people absconded
and left the state. In those cases, some jurors were given
instructions while others were not. In the cases in which the
jurors were given instructions [regarding jury nullification],
the individual was found not guilty whereas when the
instructions [regarding jury nullification] weren't given to the
jury, the individual was found guilty. Therefore, it's
important for the jury to receive instructions from the judge
that it has the right to nullify. He noted that the defendant
has the right to inform the jury of its nullification rights.
In conclusion, he expressed hope that HB 140 passes.
1:53:54 PM
REPRESENTATIVE GATTO asked if Mr. Turney knows what a stacked
jury is.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
MR. TURNEY replied yes, adding that it's probably the most
illegal thing: jury consultants, who choose the jury
scientifically. The aforementioned is done in Fairbanks, he
noted. Mr. Turney highlighted that Former Supreme Court Justice
Sandra Day O'Connor has spoken about the unfairness of jury
consulting, which results in no checks and balances. Jury
stacking is one reason jurors should be fully informed of their
rights and responsibilities to render a verdict. In conclusion,
he relayed that those who are interested in more information
about their rights and responsibilities can call 1-800-Teljury
or visit www.sfija.org.
1:56:01 PM
RICK SIKMA related his support for HB 140. He opined that it's
very important for juries to be informed and given the freedom
to make decisions as to what is right. This topic, he said,
reminds him of the following quote from John Adams: "It is not
only right, but his duty to find the verdict according to his
own best understanding, judgment, and conscious though in direct
opposition of the court." When people reach into their
consciousness to make decisions in court that's when fairness
will be found in the court, he opined. He expressed hope that
the committee would vote to pass HB 140.
1:58:27 PM
WAYNE MCCREADY testified in favor of HB 140. He pointed out
that citizens pass judgment on the lawmakers at the ballot box,
and therefore he said he believes citizens are just as capable
of passing judgment on the laws state lawmakers pass. He
relayed that he was a potential juror under Judge Funk when he
said he couldn't swear to that oath. The aforementioned
resulted in Judge Funk stating that it wasn't the job of the
jurors to judge the law, but rather is the job of the lawmakers.
The judge went on to say that any individual who had a problem
with the law should testify to the lawmakers as to the need to
change the law. Mr. McCready said he totally disagrees with
that.
REPRESENTATIVE GRUENBERG relayed that the content of the jurors'
oath can be found in the Alaska Rules of Criminal Procedure,
Rule 24(f), as follows:
Do each of you solemnly swear or affirm that you will
well and truly try the issues in the matter now before
the court solely on the evidence introduced and in
accordance with the instructions of the court?
REPRESENTATIVE GRUENBERG noted that these rules could be found
on the Internet or in any library. He then referred to the 1982
Alaska Court of Appeals case, Hartley v. State, 653 P.2d 1052,
1055, in which the court says, "We reject this argument and the
doctrine of nullification". He surmised that HB 140 would
overrule that portion of the Hartley case.
2:03:13 PM
SHAWN KITTLE related his support for HB 140 and asked the
committee to approve the legislation.
2:03:28 PM
NATHAN SMOOT stated that the founding documents weren't meant to
be parsed by lawyers and judges. He highlighted that one of the
wonderful aspects of the rights afforded by the creator and
recognized by the constitutions of the state and the nation is
that the founding documents are understood by the common
citizen. Jury nullification, he opined, merely allows jurors to
be informed of their rights. Mr. Smoot related his support for
HB 140 and expressed hope that the committee will forward it on
so that the defense is able to educate jurors of their rights.
He then questioned why the government or elected officials would
prefer a jury that's ignorant of its rights, unless they desired
tyranny. Mr. Smoot said that the purpose of his 11 years of
military service was to defend the U.S. Constitution and the
rights he holds dear. He expressed disbelief that elected
officials would prefer an ignorant constituency.
MR. SMOOT, in conclusion, drew attention to a proclamation that
was first recognized by former Governor Walter Hickel and has
been signed twice by Governor Sara Palin. He read the
proclamation as follows [original punctuation, along with some
formatting changes, provided]:
WHEREAS, September 5, 2008, will mark the 338th
anniversary of the day when the jury refused to
convict William Penn of violating England's
Conventicle Acts, despite clear evidence that he acted
illegally by preaching a Quaker sermon to his
congregation.
WHEREAS, by refusing to apply what they determined was
an unjust law, the Penn jury not only served justice,
but provided a basis for the U.S. Constitution's First
Amendment rights of freedom of speech, religion, and
peaceable assembly.
WHEREAS, September 5, also marks the anniversary of
the day when four of Penn's jurors began nine weeks of
incarceration for finding him not guilty. Their later
release and exoneration established forever the
English and American legal doctrine that it is the
right and responsibility of the trial jury to decide
on matters of law and fact.
WHEREAS, the Sixth and Seventh Amendments are included
in the Bill of Rights to preserve the right to trial
by jury, which in turn conveys upon the jury the
responsibility to defend, with its verdict, all other
individual rights enumerated or implied by the U.S.
Constitution, including its amendments.
NOW, THEREFORE, I, Sarah Palin, Governor of the state
of Alaska, do hereby proclaim September 5, 2008, as:
Jury Rights Day in Alaska, in recognition of the
integral role the jury, as an institution, plays in
our legal system.
2:07:58 PM
OLIVER FLESHMAN relayed that one of the things that keeps him in
Alaska is how much liberty is valued. Therefore, Mr. Fleshman
said that he is in favor of any legislation that promotes
liberty. In conclusion, he asked the committee to support
HB 140.
2:08:35 PM
KAREN VERNON urged the committee to pass HB 140 as she firmly
believes in the legislation. She noted her agreement with the
prior speakers.
2:09:14 PM
LONNIE VERNON requested the committee's support for HB 140 as it
is necessary. [Jury nullification] is part of the constitution,
he pointed out.
2:09:55 PM
RITA HYMES related that she is in favor of HB 140. She informed
the committee that she was born in a foreign country and in
order to become a citizen she had to learn the U.S.
Constitution. In fact, she opined that she is likely more
familiar with the U.S. Constitution than most high school
graduates. Although the U.S. Constitution is a very important
document that judges take an oath to uphold, regrettably they
seem to forget it once on the bench. She opined that HB 140 is
merely reaffirming the jury's right to utilize jury
nullification. She further opined that it should be reaffirmed
simply as a matter of checks and balances, especially since jury
instructions at the state and federal level have ignored [jury
nullification]. In conclusion, Ms. Hymes encouraged the
committee to review this matter and support HB 140.
2:11:48 PM
VICTOR BUBERGE related his support for HB 140. He shared his
belief that juries should be fully informed and that all jury
cases, including civil cases should have a fully informed jury.
Mr. Buberge also suggested that defendants should have better
access to discovery in all cases.
2:13:01 PM
ADAM BIJAN reminded members that they are all servants of the
people, who are the masters that set the rules. Mr. Bijan said
that although he supports HB 140, there are some changes that
need to be made to it. One small change he recommended was to
[acknowledge] that the jury is the exclusive judge of the facts
and the law. Furthermore, if a judge doesn't inform/instruct
the jury, the judge should be dismissed. He noted his support
of Mr. Buberge's comment that juries should be fully informed in
criminal as well as civil cases. "How can people be the masters
and not be able to decide and judge the facts and the law," he
questioned. In conclusion, Mr. Bijan reiterated his support of
HB 140 as written, although he noted the need for a few changes.
REPRESENTATIVE GRUENBERG asked Mr. Buberge whether he had
anything specific in mind with regard to his comments about
greater access.
MR. BUBERGE informed the committee that he has been fighting a
traffic ticket for nearly three years, a situation with which
Representative Coghill is familiar. He explained that he passed
a parked emergency vehicle that had its lights flashing.
Although the law was appropriate as written, law enforcement
officials were writing tickets inappropriately. He further
explained that he has been attempting to obtain evidence since
he filed the case. The case is currently in appeal, and he
still doesn't have access to some of the tapes and notes. In
fact, some of the information of the tapes and videos happens to
be missing or have been altered. Mr. Buberge pointed out that
the law specifies that [the parties] are supposed to have access
to the original evidence.
2:17:20 PM
RANDY GRIFFIN related that he is in favor of HB 140. The
legislation, he observed, has the following two elements: the
defendant has the right to inform the jury of its right to judge
the application of the law and a juror may not be disqualified
for expressing a willingness to perform the things mentioned in
this particular law. He expressed concern that during the
initial screening of prospective jurors they aren't asked
whether they are knowledgeable about jury nullification or the
Fully Informed Jury Association. The language on page 2
somewhat covers the aforementioned, but perhaps contains a
loophole in that jurors could be dismissed without specifying
it's because of the juror's knowledge of jury nullification or
the association. He then highlighted the Lautenberg Act in
which the federal government attempts to take away the right to
keep and bear arms when an individual has been convicted of a
misdemeanor domestic violence. The aforementioned, he said, is
horrendous and is a violation of the Second Amendment. Although
he said that he has never been involved in domestic violence, he
could see the potential for this to apply to anyone who might
get caught in a shoving match when tempers flare. He opined
that such a situation is ripe for jury nullification. He held
up poaching as another example of a matter that some might view
as a situation in which jury nullification could come into play.
In conclusion, Mr. Griffin characterized HB 140 as a good thing
to preserve.
2:21:54 PM
MARK RICHARDS related his support for HB 140 and requested that
the legislators support it as well. He characterized jury
nullification as a critical and essential right that was given
by our forefathers.
2:22:29 PM
MIKE PRAX spoke in favor of HB 140, which he characterized as
necessary to correct a misunderstanding by the courts. He then
pointed out that the Alaska State Constitution specifically
says, "all political power is inherent in the people". The
aforementioned is important and isn't an empty statement. He
noted that the governor has clemency power and prosecutors can
exercise discretion with regard to prosecuting a case, and
therefore they essentially have veto power. Since the power is
inherent in the people, even when giving the aforementioned
power to the governor and prosecutors, the people should retain
the power to decide the fairness of the law as well as the facts
of the case. He relayed that when he was called for jury duty
there were questions about whether jurors were aware of the
Fully Informed Jury Association and people were excused if they
were knowledgeable of the power of the jury to judge the law.
The aforementioned is tantamount to the court stacking the jury
in favor of the state, he opined. "It just makes complete sense
to me that the juror should have the ability to vote their
conscience as applied to the law," he remarked.
2:25:13 PM
KEN THESING related his support for HB 140. He opined that
jurors should have the ability to identify a bad law for what it
is. He further opined that there is an opportunity for
corruption at all levels. In fact, a recent development in the
Obama citizenship status clearly illustrates the aforementioned.
He told the committee that about 20 suits were brought to cause
President Obama to provide a $12 document that he spent over
$1.5 million to block from view. Last Saturday, an attorney
from Southern California flew and drove a great distance to
attend a symposium at the University of Iowa; this attorney
informed Justice Roberts that criminal conduct was occurring in
the highest court in the land. A clerk of the court erased
pleadings from the docket and ultimately erased all the
information the day before the inauguration. The power of the
people to nullify a bad law or corruption has to be retained, he
stressed. Mr. Thesing said that he also believes that judges
and sheriffs should be elected. As has been said, the pyramid
of power is turned upside down; the power should be returned to
the people, he said. He further said that the common man has
common sense to know right from wrong, while politics, prestige,
and power corrupt it.
MR. THESING related that this morning he called Representative
Holmes and Representative Gatto's offices to encourage them to
support HB 140. The staffers who answered referred him to the
Legislative Information Office as the most effective way to be
heard. Therefore, he expressed the desire to have his call
counted and to leave contact information to substantiate his
view. The staffers refused to take his information. In
conclusion, Mr. Thesing related the following quote: "It starts
with a soapbox on the street corner, goes to the ballot box in
the election cycle, and then goes to the jury box in the court
room. And if tyranny cannot be overtaken and stomped down, it
goes then to the cartridge box in our fight against tyranny."
2:32:11 PM
SCHAEFFER COX related his support for HB 140. He then said that
he's confident that the laws passed by the Alaska State
Legislature are well-intentioned, skillfully crafted, and by-
and-large serve their intended purpose. However, inevitably
laws will occasionally be twisted from their original intent.
The aforementioned occurs in the absence of the legislature, and
therefore necessitates juries. Mr. Cox requested that the
committee pass HB 140 "so that we the people can exercise
discretion and mercy congruent with the original intent of the
laws you craft on our behalf." He said he likes HB 140 because
it is a way for the legislative branch to exercise its power to
clarify and curtail the discretion of the judicial branch.
Although judicial tyranny is no better than executive tyranny,
it seems to be accepted more often because the judicial branch
seems to be cloaked in "a shroud of feigned impartiality."
MR. COX opined that one should disclose one's partiality because
no one can really be impartial. The judicial branch will be
biased toward the preservation of its own power, which is a
natural tendency. However, the legislature and the [jurors] are
supposed to keep that in check. In response to Chair Ramras, he
offered his belief that justice is in the best interest of the
common man, the best interest of the jury to punish those who do
evil and who are causing harm to others and exonerate people
when the case isn't in the interest of the greater good or is
incongruent with the intent of the original law. Mr. Cox
related that he would trust a jury of his peers far more than he
would trust the discretion of a judge. He expressed further
concern when a judge chooses those on the jury and reminded the
committee that Patrick Henry has written that a jury should
consist of one's peers who personally know the accused and
approach the case with bias. The aforementioned, he
acknowledged, is quite different than that which is embraced
today.
[Following was a brief discussion of a past federal case.]
2:42:45 PM
RICK SVOBODNY, Acting Attorney General, Department of Law (DOL),
began by explaining that he was originally going to review the
jury system and how it came to be, what it is today, and why
some people are called more than others. However, he said that
he would only like to address why some people are called more
than others. In Alaska, a representative sampling of a
community is chosen, which is what is now meant by a jury of
one's peers. Although the language "jury of your peers" is not
found in the Alaska Constitution, the language "impartial jury"
is used. The Alaska courts have defined an impartial jury to
mean a representative sample from the community [in which the
defendant resides]. Alaska uses the permanent fund dividend
(PFD) applicant list to randomly select jurors from the area in
which the crime occurred. Therefore, in some smaller population
areas, some people end up serving more often than others.
ACTING ATTORNEY GENERAL SVOBODNY then turned to the legislation
before the committee, which he characterized as a substantial
and major change to the criminal justice system in Alaska. The
aforementioned would also be the case if HB 140 were enacted in
any other state. Although there was testimony to the contrary,
he said he found no state constitution [referring to jury
nullification]. However, he acknowledged that those in support
of legislation such as HB 140 point to the state of Indiana,
which has some language in its constitution about the jury
trying the facts and the law. Still, the criminal jury
instructions in Indiana, in essence, relate the same
instructions as Alaska's jury instructions. Both relate that
the jury is to determine the facts in the case while the
legislature makes the laws and the courts determine the laws.
He characterized the aforementioned "as part and parcel to a
representative democracy." The adoption of HB 140 would result
in no longer having a representative system of democracy, but
rather an individual would have the ability to make the law in
any particular criminal case.
2:47:36 PM
ACTING ATTORNEY GENERAL SVOBODNY, in response to Representative
Gruenberg's earlier question, related that there are a
substantial number of cases in Alaska that deal with jury
nullification. The cases have arisen after requests for jury
nullification instructions, which the Alaska Supreme Court has
said isn't allowed. It has also been determined that arguments
against the law itself aren't allowed to be made, nor are
questions about jury nullification allowed during jury
selection. Jury nullification exists and nothing can be done
about that because when jurors deliberate what is said or done
isn't known and a juror may not follow the instructions to
follow the law. Acting Attorney General Svobodny questioned why
the legislature is present, if it allows the laws it passes to
be ignored. The legislature, he opined, is present to make good
public policy calls. Juries don't hear the type of information
legislators hear when making public policy decisions, rather
they hear evidence about the facts of a particular situation.
ACTING ATTORNEY GENERAL SVOBODNY said that in general, criminal
cases aren't really that complicated. For instance, the case
may be whether an individual was driving or whether that
individual was under the influence of alcohol. Those aren't
complicated questions, he opined. He pointed out that currently
juries may not find out why an individual was driving under the
influence of alcohol, but HB 140 would change that. Under HB
140, the question could become whether it's a good/compelling
reason to ignore the law if an individual says he/she drank too
much because of the death of a parent. Although the jury in
such a situation may decide to ignore the law in an individual
case, he questioned whether that's good public policy.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
ACTING ATTORNEY GENERAL SVOBODNY opined that the entire system
is different in terms of what the legislature does, that is
setting public policy by hearing information in general about a
particular problem versus the types of decisions juries make in
criminal cases.
ACTING ATTORNEY GENERAL SVOBODNY acknowledged that during the
Revolutionary War jury nullification occurred often in the
Thirteen Colonies and ultimately there is language about it in
the Declaration of Independence. The Declaration of
Independence discussed the wrongs done by the king. For
example, it said, "The king was transporting us beyond the seas
to be tried for pretended offenses." Acting Attorney General
Svobodny recalled testimony about the 1700s' Zanger case, which
dealt with a civil liable matter and whether truth was a defense
to liable.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
2:55:45 PM
CHAIR RAMRAS asked whether the administration supports jury
nullification.
ACTING ATTORNEY GENERAL SVOBODNY offered his understanding that
the governor has not yet offered a position on HB 140.
CHAIR RAMRAS asked whether DOL supports or opposes HB 140.
ACTING ATTORNEY GENERAL SVOBODNY offered that when he practiced
law in Oregon he was interested in a district attorney position
in Lake View. Upon visiting Lake View, he discovered that there
had been several murders of American Indians by white people and
several murders of white people by American Indians. In all the
cases in which the American Indians were murdered by white
people, the white people were found not guilty whereas in all
the cases in which white people were murdered by American
Indians the American Indians were found guilty. Furthermore, a
sign on the bridge entering Lake View said, "No Indians allowed
in town after dark." The aforementioned is jury nullification
and is wrong. Acting Attorney General Svobodny said that when
he thinks of jury nullification, he thinks of cases such as
those of O. J. Simpson, Rodney King, and cases involving the Ku
Klux Klan in the 1960s. The idea behind jury nullification is
to focus on criminals people believe should be given sympathy.
He said that in his experience jury nullification focuses on
hate. Therefore, he opined that passage of HB 140 says that
some people will be convicted/not convicted on the whim of a
small group of people, which he said isn't justice.
CHAIR RAMRAS noted that some who've testified today would argue
that the court system is biased and that due to jury
instructions the jury isn't satisfactorily hearing a case.
Chair Ramras opined that folks have sensitivity toward hate
crimes. He highlighted that there is an imperfection in the
system and that HB 140 embodies the recognition that the
judicial system and jury system is imperfect as well.
3:02:06 PM
ACTING ATTORNEY GENERAL SVOBODNY reminded the committee that at
one time priests officiated over trials, which were done by
ordeal. Those trials were really an appeal, he explained,
because the jury consisted of 12-24 people who had to know
everything about the defendant. During that time, juries could
nullify and served as the accuser, judge, and finders of fact.
Since then there has been a substantial change in the jury
system with more guarantees to arrive at the correct result.
REPRESENTATIVE GRUENBERG asked if Acting Attorney General
Svobodny saw any potential problems with HB 140 that haven't
been addressed. For instance, what other matters could fit
under the title of HB 140.
ACTING ATTORNEY GENERAL SVOBODNY responded that perhaps the
title could include the death penalty.
REPRESENTATIVE GRUENBERG asked if there is any problem with the
legislation only allowing for the jury to acquit [the defendant]
despite the law. He questioned the possibility of a jury
deciding it could convict despite the law.
ACTING ATTORNEY GENERAL SVOBODNY said that he doesn't believe
the legislation only goes one way, rather he said he believes it
allows for both. The legislation allows the jury, without
instructions on the law, to find a lesser included offense. For
instance, an individual is charged with keying a car. In such a
case, he questioned what would stop a jury from determining that
assault or sexual assault is a lesser included offense.
Although the aforementioned is a ridiculous example, once the
door is open to lesser included offenses there's the possibility
of an individual being convicted of a crime he/she wasn't
charged with.
CHAIR RAMRAS, upon determining no one else wished to testify,
closed public testimony on HB 140. He then announced that
HB 140 would be held over.
3:06:35 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:06 p.m.