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House bill pushed by Fairbanks lawmakers promotes ‘jury nullification'

Richard Mauer

JUNEAU -- A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later.

The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.

This time around, it's numbered House Bill 315. The Legislature's legal division has questioned whether the bill is constitutional and the Attorney General's office says it would lead to unfair and disorderly trials. In both of its prior incarnations, the bill has never gotten past the House Judiciary Committee.

But the bill has been popular in Fairbanks.

"I think we're just more independently minded -- maybe we do interpretations differently than other areas," said Rep. Tammie Wilson, R-North Pole, prime sponsor of House Bill 315. The bill's co-sponsor is Rep. Scott Kawasaki, D-Fairbanks.

The House Judiciary Committee is under different management than it was when the nullification bills died there last decade. This year, the committee is chaired by one of the Legislature's most conservative members, Rep. Wes Keller of Wasilla. If the bill gets through the House, it would land in the Senate Judiciary Committee, where the chairman is Sen. John Coghill, R-Fairbanks. As a House member, Coghill introduced the 2002 and 2009 jury nullification bills.

House Bill 315 would toss out the current system under which juries are the triers of fact but not of law, which now is presented to the jury by the judge and in jury instructions. The bill says that if the jury finds the defendant guilty "according to the law" but determines the law was unjustly applied, it could find the defendant not guilty. It would appear to make obsolete the oath for jurors, in which they swear to try the case "solely on the evidence introduced and in accordance with the instructions of the court."

The bill requires judges to tell jurors they have "the power to judge the just application of the law and to vote on the verdict according to conscience." It grants defendants the right to present evidence and testimony in support of nullification. And it says a potential juror could not be disqualified from service for expressing support of nullification.

In a memo dated Feb. 18, Doug Gardner, director of the Legislature's legal services division, said the bill could run afoul of U.S. Supreme Court decisions going back to the 19th Century. In one case cited by Gardner, the Supreme Court said that "it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence."

In Alaska, the bill could lead to laws being applied unequally in different regions, Gardner wrote.

"Will juries in certain areas of the state decide that certain laws will not apply to individuals in those areas?" he wrote.

Wilson said as much herself in defense of the bill.

"Sometimes we make laws that fit entirely the state, and sometimes there are other circumstances we should be able to put in place, and that's what this does," she said.

Annie Carpeneti, testifying on behalf of the Attorney General's office, also raised constitutional issues about the bill.

"It allows the defendant to have the jury instructed that they may disregard the law as given to the judge and to all of us from the people who make the law -- that is, you," she told the judiciary committee. "Allowing the jury to disregard the court, disregard our rules of evidence, would result in trials that are not very orderly or not very fair, to either side."

With other bills using up most of the committee's time Wednesday, Chairman Keller cut short testimony. He apologized to people waiting to testify by phone, telling them they'd get their chance at a later hearing.

In 2009, the committee held a full hearing with citizen testimony, nearly all in favor of Coghill's bill. Among the witnesses, according to committee minutes, were Fairbanks-area residents Schaeffer Cox, Lonnie and Karen Vernon, and Ken Thesing. They described nullification as a check against an over-powerful judiciary and improper laws. Thesing said nullification was in the middle of the protest continuum between "the soapbox on the street corner" and "the cartridge box."

Cox and the Vernons are now in federal prisons for their convictions in the Fairbanks militia cases last year. Thesing wasn't charged, but was a major in Cox' militia.

Testifying against the bill in 2009, Richard Svobodny, the state's chief prosecutor, recalled how, as a young attorney, he sought a position in the district attorney's office in an Oregon county undergoing an outbreak of violence between Native Americans and European descendants. Indians were murdered by whites, and whites by Indians, he said, but white jurors only convicted the Indians; the white defendants were all acquitted.

That was jury nullification, Svobodny said, and it was wrong.

Reach Richard Mauer at rmauer@adn.com or 907-500-7388.

 


By RICHARD MAUER
rmauer@adn.com
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