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.