Legislature(2009 - 2010)CAPITOL 120

03/18/2009 01:00 PM House JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
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                                                                    
     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                                                                    
     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                                                               
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                                                               
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                                                                    
     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                                                               
[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                                                               
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.                                                                                                      

Document Name Date/Time Subjects
Alaska Court System - Alaska Trial Juror Information.pdf HJUD 3/18/2009 1:00:00 PM
Amendment E.1.pdf HJUD 3/18/2009 1:00:00 PM
Getting to the Jury to enable the Jury to Do Justice.pdf HJUD 3/18/2009 1:00:00 PM
FIJAconV CLE .pdf HJUD 3/18/2009 1:00:00 PM
Essay The Ascent of the Administrative State and the Demise of Mercy.pdf HJUD 3/18/2009 1:00:00 PM
HB140 version A.pdf HJUD 3/18/2009 1:00:00 PM
HB 140
HB140 Sponsor Statement.pdf HJUD 3/18/2009 1:00:00 PM
HB 140
HR7 2008 Journal Text.pdf HJUD 3/18/2009 1:00:00 PM
HR7 2008 Sponsor Statement.pdf HJUD 3/18/2009 1:00:00 PM
HR7 Backup - US Senate HR8 Map (2).pdf HJUD 3/18/2009 1:00:00 PM
HR 7 Sponsor Statement.pdf HJUD 3/18/2009 1:00:00 PM
HB7 Back up Sec. 1023.pdf HJUD 3/18/2009 1:00:00 PM
HR 7
HR7 Backup 2008 HR7.pdf HJUD 3/18/2009 1:00:00 PM
HR7 Backup Bill History 25th Legislature.pdf HJUD 3/18/2009 1:00:00 PM
HR7 Backup Press Release 2008.pdf HJUD 3/18/2009 1:00:00 PM
HR7 Bill version S.pdf HJUD 3/18/2009 1:00:00 PM
HR7 H.R. 9 Fair and Simple Tax.pdf HJUD 3/18/2009 1:00:00 PM
Jury Nullification The Top Secret Constitutional Right.pdf HJUD 3/18/2009 1:00:00 PM
Jury Nullification Emporing the Jury as the Fourth Branch of Goveernment.pdf HJUD 3/18/2009 1:00:00 PM
Jury Pardon Jury Nullification Closing Argument.pdf HJUD 3/18/2009 1:00:00 PM
Protecting the Jury Preventing the Dismissal of Your Hold Out Juror.pdf HJUD 3/18/2009 1:00:00 PM
Using Theories and Themes to Aquit the Guilty.pdf HJUD 3/18/2009 1:00:00 PM
The Colorado Method of Jury Selection Coupled with CPR is a Marraige Made in Heaven.pdf HJUD 3/18/2009 1:00:00 PM
South Texas Law Review.pdf HJUD 3/18/2009 1:00:00 PM
Putting on Jury Nullification Defense and Getting Away with It.pdf HJUD 3/18/2009 1:00:00 PM