The Alaska Court of Appeals ruled Friday that a Fairbanks judge misinterpreted the word "may" as used in a phrase in the grand jury clause in the Alaska Constitution.
In doing so, the three-member court reinstated a sexual abuse indictment against Tara Leighton, 32, a former youth hockey coach. She was indicted on five counts for sexual abuse of a minor.
In 2012, the jurors heard a judge advise them that if a majority of them agreed to indict Leighton, they "should" do so. They did.
But Superior Court Judge Randy Olsen, now retired, ruled in 2012 that the grand jury members should have been told that if a majority of them agreed to indict Leighton, they "may" do so. He ruled that Leighton must be re-indicted before a trial could go forward.
The constitutional clause in question says: "The grand jury shall consist of at least twelve citizens, a majority of whom concurring may return an indictment."
The statement that it "may" return an indictment "does not refer to the legal test for when an indictment is justified," the appeals court found. Instead, it means that the jury is authorized to indict, but only if a majority of its members agree.
"There is nothing in the language of this sentence and nothing in the discussions in the Alaska Constitutional Convention pertaining to this sentence, to suggest that the purpose of this language was to create or acknowledge a grand jury right of 'nullification' -- a right to refuse to indict someone for any reason the grand jurors might see fit," the court found.
One other Fairbanks judge, faced with a similar question on the grand jury instructions in 2007, took an approach different from Olsen's, one confirmed by the appeals court ruling.
"A logical reading of the grand jury instruction does not mandate that the jury must indict the accused. The only mandate present in the language instructs the grand jury that it must make a decision whether the evidence presented is sufficient to warrant the indictment," Judge Doug Blankenship ruled in that case. "The jury may not hear the evidence and then decide to do nothing."