Don’t let anyone tell you diction isn’t important, especially in a courtroom setting.
A Juneau judge recently dismissed an indictment against a man accused of arson because of word choice that heightened the grand jury’s obligation to return a true bill.
The grand jurors were instructed they ‘should’ issue an indictment if the evidence meets a certain standard of proof, but the attorney for defendant Ryan M. Martin, 24, said that mandatory language undercuts the grand jury’s right to not return a true bill as delineated in the state constitution.
Defense attorney Jim Corrigan argued the jury should have been instructed they ‘may’ return a true bill if the
evidence is sufficient, which is the language used in Article I, Section 8 of the Alaska Constitution. The section reads, in part, “The grand jury shall consist of at least twelve citizens, a majority of whom concurring may return an indictment.”
Despite opposition from state prosecutors who contended the jurors were never instructed they were required to issue an indictment, Juneau Superior Court Judge Philip Pallenberg agreed with Corrigan. The judge emphasized that a grand jury can choose not to indict even if they find the evidence sufficient.
“Under this language, the grand jury is directed to consider only the question of whether the evidence presented to it meets this standard of proof,” Pallenberg wrote in a ruling issued last Friday.
The framers of the Constitution specifically included language that gave the grand jury the discretion to indict or not, given its historical role as a buffer between individual citizens and the power of the state, Pallenberg noted. He cites an example from the 18th Century where the grand jury served as a check on power — the Crown charged New York newspaper publisher John Peter Zenger with libel for criticizing the colonial governor of New York, and three successive grand juries refused to indict him despite existing probable cause. (As Pallenberg noted, Zenger was later charged via criminal information and acquitted after a trial in which he was represented by Alexander Hamilton.)
Does bickering over the words ‘should’ and ‘may’ sound nit-picky? Consider that the portion of Section 8 quoted above was also the subject of debate between the delegates at the Constitutional Convention. It originally stated that “The grand jury may consist of at least twelve jurors...,” but Delegate George Sundborg was concerned people may interpret that as meaning it’s OK to have less than 12 jurors. Sundborg advocated to replace the word ‘may’ with ‘shall,’ which it was, as Judge Pallenberg pointed out. Even though it’s not the same phrase as relates to the case here, Pallenberg interpreted the debate to mean the delegates took due care in drafting the provision, were precise and understood the difference between the words ‘may’ and ‘shall.’
In the Martin case, the instructing judge at the grand jury told grand jurors, “If at least 10 of you believe the evidence has met the standards, the indictment should be endorsed ‘a true bill’ and signed by your foreperson.” Saying the word ‘should’ expressed an obligation or duty to indict, Pallenberg ruled, “This is simply an incorrect statement of law, and a fundamental misstatement of the role of the grand jury.”
Assistant District Attorney Angie Kemp in a court hearing on Friday said the state intends to re-indict Martin sometime before Aug. 2. Martin had been facing two felony charges of arson and criminal mischief and two misdemeanor charges of criminal trespass and furnishing alcohol to persons under 21.
He was originally charged alongside two other defendants, Ashley Rae Johnson and Dillon P. West, in connection to the fire at Adair-Kennedy Memorial Park last summer that caused between $20,000 and $30,000 worth of damage to materials and equipment being used to replace the city-owned turf football field.
Johnston, 19, was the first to stand trial — the jury acquitted her of arson but found guilty of felony criminal mischief and misdemeanor criminal trespass. At sentencing in April, the judge suspended her sentence but required her to serve 120 days in jail as a condition of probation.
Perhaps frustrating to prosecutors is that the same 12 grand jurors who heard the Ryan Martin case also heard the case against Dillon West. And chose not to indict him.
• Contact reporter Emily Russo Miller at 523-2263 or at firstname.lastname@example.org.