“You may be wondering, during this time as we try to revise statute to ensure public safety of Alaskans by holding criminals accountable, it may seem like an interesting effort to ensure justice and fairness for those that may have not, or feel that they have not, had an adequate legal process to prove themselves innocent,” Sen. Peter Micciche (R-Soldotna) said during his introduction of Senate Bill 15.
It was the bill’s first hearing, on Monday, March 11, in front of the Senate Judiciary Committee.
SB15 has two aims: the first, to create a mechanism allowing the public to petition for a grand jury; the second, to revise and strengthen requirements forcing prosecutors to disclose exculpatory evidence and information that could help a defendant during criminal proceedings.
Grand juries are convened to determine whether or not there is sufficient reason to charge an individual with a felony-level crime. Randomly selected jurors hear evidence only from the prosecutor – a district attorney or an assistant district attorney – distinguishing it from trial courts, where the defense gets to present their case. If the grand jury decides the combined evidence is sufficient to warrant a conviction (known as a “true bill”), then the case moves on to trial.
The grand jury does not make the final decision regarding innocence or guilt; they simply evaluate whether or not there is probable cause.
“The grand jury acts as both a ‘sword’ and a ‘shield’ of justice,” The Alaska Court System’s Grand Jury Handbook describes. “It acts as a sword when it investigates crimes and charges defendants with crimes. It acts as a shield by protecting accused persons from being charged when there is not enough evidence of a crime.”
In essence, grand juries are designed to filter out incompetent or malicious prosecutions. In application, they’re a handy tool for prosecutors looking to avoid public evidentiary hearings. Prosecutors also are bound by ethics law and U.S. Supreme Court precedent (Brady v Maryland, 1963) to turn over all evidence that might exonerate a defendant.
In Brady, John Leo Brady and Donald Boblit were charged with the murder of an acquaintance, William Brooks. The men were tried, found guilty, and sentenced to death. However, they were tried separately. The prosecution withheld a written statement from Brady’s trial, made by Boblit during his, confessing that he acted alone in killing Brooks during a botched robbery attempt. The Court held in a 7-2 decision that suppressing Boblit’s confession at Brady’s trial violated the Due Process Clause of the Fourteenth Amendment.
Supreme Court Justice William Douglas wrote the majority opinion, noting, “Society wins not only when the guilty are convicted, but when criminal trials are fair.”
Brady would be denied a new trial, but granted a new sentence hearing. Instead of the death penalty, he received life in prison, was eventually granted parole, and lived out the rest of his life in Florida.
So-called “Brady violations” still plague courtrooms nationwide, and one example continues to haunt Alaskans’ collective memory.
Invoking Uncle Ted
Half of SB15 repeals and reenacts a section of criminal law defining a prosecuting attorney’s duty to disclose favorable information to a defendant in a criminal proceeding.
“Perhaps the most famous case of the withholding of exculpatory evidence was during the prosecution of Alaska’s US Senator Ted Stevens,” Micciche described in his sponsor statement, using a readily accessible, household name. “The Senator would have likely been found not guilty had the evidence been presented.”
Ted Stevens was convicted in October 2008 of violating federal ethics laws, failing to disclose over $250,000 in gifts he received from friends. That included extensive renovations to his Girdwood residence: a new first floor, garage, wrap-around deck, as well as new plumbing and wiring. The upgrades were paid for by VECO President Bill Allen.
The grand jury convened to deliberate the case fell victim to suppression of evidence by prosecutors. Really good prosecutors, from the U.S. Justice Department’s Public Integrity Section (PIN), which excelled in high-profile cases. So, really good prosecutors behaving very badly.
“The PIN Section, which comprises about 30 lawyers, investigates and prosecutes corruption in all levels of government,” legal scholar Anna Stolley Persky wrote in 2009. “Between 2001 and 2007, it brought public corruption charges against 416 individuals, winning 371 convictions… [including] Washington lobbyist and convicted felon Jack Abramoff.”
Persky noted that U.S. District Court Judge Emmet Sullivan, who presided over the case, “admonished the prosecution and even struck the use of certain evidence” multiple times, and at one point considered declaring a mistrial. They withheld FBI reports and other critical evidence. “It strikes me that this was probably intentional. I find it unbelievable that this was just an error,” Sullivan said at one point. The government knowingly submitted false VECO accounting records. A juror disappeared for weeks. VECO employee Dave Anderson would submit to Sullivan, two months after Stevens’s conviction, that he had made false statements on the stand and was coached by prosecutors. And, in December, FBI special agent Chad Joy filed a whistleblower complaint alleging that “prosecutors tried to hide a witness and intentionally withheld evidence from defense lawyers.
The following year, U.S. Attorney General Eric Holder announced his intentions to drop the case. “After careful review, I have concluded that certain information should have been provided to the defense for use at trial,” his statement read. “It is in the interest of justice to dismiss the indictment and not proceed with a new trial.”
“I think it’s important that people know it could happen to any people at any level, as is what happened to Sen. Ted Stevens in 2008,” Micciche said.
The mention of Stevens added dramatic flare, but the relationship between a reckless U.S. Department of Justice run amok and the Alaska Judicial System is tangential at best, requiring a lot of loose spaghetti strings and squinting. The notion that a change to state laws would have prevented his federal conviction negates the rather obvious jurisdictional discrepancy.
Deputy Attorney General for the Criminal Division of the Alaska Department of Law Robert Henderson waited on the phone to field questions about the actual proposed changes currently before the legislature.
“As you read what’s in the constitution,” Committee Chair Shelley Hughes (R-Palmer) asked, “do you think we are fulfilling [Brady requirements] through our present system now? Is it adequately meeting the requirements of the constitution?”
Henderson answered in the affirmative, adding that the department had multiple concerns with the bill as written.
“The grand jury can only return a ‘true bill’ if admissible evidence is presented that would warrant an indictment,” he explained. “A prosecutor is under an ethical responsibility to only proceed with cases that he or she believes probable cause exists to warrant that case. If we don’t believe that there’s probable cause we cannot ethically move forward with that case.”
“Sometimes, considering that no human is perfect, there are items used to help in the conviction of an individual that – sometimes long after it’s processed – there’s not an avenue for the individual to challenge some of those issues,” Micciche countered.
Henderson responded that, in those cases, defendants could apply for post-conviction relief; a petition according an individual legal remedies available during the appeals process for numerous convictions. Alaska Statutes enumerate several instances in which a defendant who believes he was unfairly convicted can use this tool, he said. “That’s the mechanism that we’ve identified, as a state, that is the most appropriate forum to handle those attacks on someone’s underlying conviction.”
Hughes noted that, in addition to post-conviction relief, the public elects the governor, who appoints the attorney general. The public elects the legislature, who confirm the attorney general. It’s all part of a public process designed to ameliorate injustices such as Brady violations.
“This is a very difficult bill,” Micciche conceded. “The reason I brought it forward is, even as Mr. Henderson spoke, it sort of clarifies… there’s not really a check and balance in the extremely rare case where potentially there is a problem. There’s really not an independent way to break out of that circular system.”
The other half of SB15 proposes such an “independent way.”
Publicly Initiated Grand Juries: A Troubling Record
“Although Alaska’s Constitution under Article 1, Section 8 states ‘The power of grand juries to investigate and make recommendations concerning public welfare or safety shall never be suspended,’ a process does not currently exist for the public to initiate the process,” Micciche told his colleagues. “Senate Bill 15 will provide greater protection to the accused to ensure that they receive a fair trial and that exculpatory evidence information will become available when applicable to the outcome of the proceedings.”
If the bill were to pass, any individual could submit to a judge a petition to convene a grand jury “for the purpose of investigating a matter that, if true, would warrant a ‘true bill’ of indictment[.]” If the judge determined the petition “on its face identifies with reasonable specificity areas to be investigated,” the petitioner would then have 45 days to gather the signatures of 500 registered voters within the judicial district. For reference purposes, Alaska’s Third Judicial District includes Anchorage, the Mat-Su Valley, and Cordova (to name a few). This is an incredibly lenient threshold.
Petitioners can request to remain anonymous under the bill. Solicitation of signatures in exchange for money or prizes or collected using false information would be made class B misdemeanor, with offenders facing up to one year in jail and a fine of no more than $10,000. SB15 would require a two-thirds vote in the House and Senate, as required by the Alaska Constitution, Article IV, Section 15.
There are two types of grand jury functions. The more common is the charging function. “The grand jury operates as the charging body for all criminal, felonious acts. And so, no case – no felony – can move forward absent an indictment,” Henderson said.
The second function is investigation. Grand juries impaneled for investigative purposes issue a report making recommendations. That confidential report is turned over to a judge who then weighs whether or not to make the report public and/or bring it to trial. Henderson described the investigative grand jury as a “rarely used,” “very procedurally complex and arcane system.” He could only think of two instances of its use. The first was in 1985, when a Fairbanks jury returned a recommendation to have the Alaska Senate return articles of impeachment against Gov. Bill Sheffield.
The second was the Satch Carlson case in 1989. Carlson, 44, was an English teacher at Bartlett High School arrested for sexual contact with a student. His lawyer defended his client by pointing to the state’s 16-year-old age-of-consent law exemption for minors entrusted to the care of an adult. An Anchorage grand jury would issue a report that ultimately change the law to make sexual abuse of a minor who is under the age of 16, with an offender who “occupies a position of authority,” a class B felony, subject to up to ten years imprisonment and a fine of up to $100,000.
Those were grand jury investigations as proscribed by current law, however. To look at effects of citizen-impaneled grand juries, one needs to look to states who currently afford that mechanism.
Oklahoma amended their state constitution’s Bill of Rights in 1989 adopting a policy identical to that offered by SB15. The most famous example of its use was a citizen-initiated grand jury impaneled to investigate whether or not Timothy McVeigh and Terry Nichols had been part of a larger network that orchestrated the 1995 Oklahoma City bombing.
The 18-month-long inquiry, which cost the state millions, found no additional perpetrators and no credible evidence backing accusations that the government had prior knowledge of the attack. Such allegations were found to be “either fabrication or uninformed speculation,” according to an account from The Washington Post.
Oklahoma District Court Judge Bill Burkett, who received the grand jury report, lamented the investigation, opining that conspiracy theorists would, as a result, “simply conclude these jurors as the newest members of the conspiracy.”
More recently, a citizen-impaneled grand jury in Kansas was convened to investigate Dr. George Tiller, the owner and operator of Women’s Health Care in Wichita. The clinic was one of just three, nationwide, that performed abortions after 20 weeks gestation. Pro-life advocates, frustrated after a Wichita judge tossed the case against Tiller two years earlier, used an 1887 anti-corruption law to trigger the grand jury.
To do so, the law only required two percent of the number of people who voted in the last governor’s election in the county, plus 100. The number for the county in question, Sedgwick County, was 4,000 out of a population of over 500,000. Over 8,000 signatures were collected.
New Mexico, North Dakota, Nebraska, and Nevada also have similar laws on the books.
“What I see this as is a process that would be used very rarely, if at all,” Micciche told the committee. “I don’t want it to be used as something where they just go after anyone for anything at requesting a grand jury investigation. I want it to be an unfair conviction process.”
The only instance where both sections proposed in SB15 have converged in Alaska is the case of David Haeg, who Micciche invited to offer testimony and provide clarity to the bill’s purpose – though Micciche repeatedly said the bill wasn’t about him.
The Turbulent Case of David Haeg
In 2004, Haeg was a hunting guide, a pilot, and owner of Dave Haeg’s Alaskan Hunts, who found himself in the center of what The New York Times‘s dubbed the “Wolf Wars.”
Aerial hunting of wolves has been legal in Alaska since the 1940s, but saw a marked increase during the early 2000s, with multiple districts allowing for an 80 percent increase in harvesting – in the small village of Chignik in the Lake and Peninsula Borough (population 91), the limit rose from 10 wolves per year to 10 wolves per day. There were calls to boycott Alaska in cities spanning the Lower 48.
Haeg and fellow hunter Tony Zellers “obtained a state permit to shoot wolves in a kill zone in… [an] area surrounding the community of McGrath on the north side of the Alaska Range in vast Central Alaska,” Craig Medred wrote. “Haeg and Zellers shot nine wolves. The state and Haeg agree on this…. The agreements pretty much end there.”
Haeg was brought up on state charges alleging he shot the wolves outside the legal area. He not only contested the claim; he lawyered up and countered that the arresting officer, Fish and Game Trooper Brett Gibbens, had doctored the map to paint him outside the permissible hunting grounds.
It didn’t work.
Haeg was convicted of illegally killing wolves the following year. He appealed. According to Medred, Haeg claimed “state prosecutors used perjured witnesses and violated the rules of evidence,” and that both the judge who oversaw the case, Judge Margaret Murphy, and Gibbens had conspired against him. He also unsuccessfully sued his former counsel for “defective services.”
For over a decade, Haeg has tried to clear his name, starting a website in 2009 voluminously documenting his attempts to do so.
After a 2010 review, Superior Court Judge Stephanie Joannides removed Murphy from the case, finding that her relationship to Gibbens could give the “appearance of impropriety” (Murphy conceded she frequently accepted rides from him). Judge Jennifer Wells was assigned the case, but later recused herself due to her relationship with Murphy. It was then reassigned to Judge Charles Huguelet, who promptly recused himself because he had discussed the case with Murphy. Superior Court Judge William Morse wound up assigning himself the case.
Haeg claimed he was unable to challenge the case assignment because he was working remotely and unable to receive correspondence. Morse countered that “Haeg had to understand that the Court… would be indicating who the assigned judge would be” and it was “unreasonable for him not to have made arrangements… to monitor any written communications from the Court or the State.” Haeg was denied a motion for reconsideration on September 18, 2017 and Morse set the date for the next hearing on December 18.
That hearing, at the Nesbett Courthouse in Anchorage, made a lot of headlines – none of which were helpful to Haeg’s cause. “The judge in Monday’s hearing was attempting to set a date for Haeg to file a brief when Haeg began raising some of his allegations of corruption, though that was not the hearing’s purpose,” Laurel Andrews wrote for The Anchorage Daily News.
Haeg, then 51, interrupted the proceedings and was tased by a Judicial Services Officer, drug out of the courtroom, and charged with disorderly conduct. A crowd of about 50, most of whom where there in support of Haeg, nearly rioted, only backing down after several additional officers appeared on scene.
In February of last year, Haeg filed paperwork in Superior Court for the Third District repeating past allegations of criminal conduct, corruption, and fraud against Morse, District Attorney Scot Leaders, Gibbens, Murphy, and Executive Director of the Alaska Commission on Judicial Conduct Marla Greenstein. He quoted his attorney acknowledging the suppression of evidence (the allegedly doctored map) and told him, “I would have argued you didn’t get a fair trial because they were using false evidence to convict you. I could have proved they were intentionally lying at trial.”
In that most recent filing, Haeg suggests adopting extrajudicial means to his desired ends.
“If the courts close their doors to me without a new trial or a full/fair evidentiary hearing on all my issues with everyone compelled to testify – as the law holds must be allowed – I will travel to the locked trooper impound yard… [and] start taking back the airplane/property I used to provide for my family so long ago. I will ask all those now following this to come watch – and help if they believe our constitution is worth fighting for,” he writes, peppering in Jefferson and Churchill quotes accompanying a President Donald Trump-inspired appeal for voters to deny the retention of all Alaska judges (“Want Judge Swamp to Drain? – VOTE NO!!!”) before a dramatic conclusion: “After I am killed I ask the public demand an independent commission, with power to subpoena [and] grant family immunity, be formed to publicly investigate Alaska’s judicial corruption – [and] if proved, demand that Alaska’s court system, Commission on Judicial Conduct, Bar Association, Department of Law [and] State Troopers be placed into federal receivership – as done with corrupt agencies elsewhere.” [emphasis in original]
Moving beyond adjudication, Haeg’s latest court filing reads more like a violent call to action. His testimony before Senate Judiciary didn’t deviate from this trajectory.
“The issue, how I got into this, is it literally ripped my family apart in the past 15 years. I have done an enormous amount of investigation into why this happened and how it happened, and to say I’m disturbed doesn’t even begin to touch it,” he said. Over several minutes, he took lawmakers through his timeline of events, but eventually spiraled into attacks against all actors involved. As Hughes attempted to cut him off, he said, “The most important duty of the grand jury would be to investigate and issue a report so that the public knows what’s going on. And, although they may not indict anybody, they can dang well say Marla Greenstein needs to be fired, her retirement needs to be taken away, and she needs to be run out of this state on a pole.”
“I think we understand the issues,” Hughes concluded.
Haeg wrapped up by reiterating his belief that there needed to be “a trigger mechanism for the grand jury” because “when we – when I – wanted a grand jury investigation, and then when we had a petition, it wasn’t allowed.”
Nancy Meade, general counsel for the Alaska Court System, listened carefully in the gallery before offering her own testimony. She said Haeg, or anyone else, already had recourse if they felt they had been wrongfully convicted.
“Some of those [avenues of redress], if not all of them, were taken advantage of in this case,” she said. “You can ask the trial judge for reconsideration and say what you think was wrong. You can also ask for an appeal in the court of appeals, which occurred. You can also petition to the Supreme Court if you don’t like the answer, which occurs…. And then later, if you still feel like there were problems with your case, you get a chance for post-conviction relief under our criminal rules to file another case in a trial court.”
Can of Worms
Micciche asked his colleagues to help him narrow the scope of the bill and emphasized his belief that mistakes are occasionally made, and that improving the laws could help in those “extremely rare” cases.
His colleagues worried that, while attempting to ameliorate those rarities, they might be inadvertently legislate their way into a lot of unintended consequences by handing activists the keys to grand juries.
“You could open Pandora’s Box with this,” Sen. Mike Shower (R-Wasilla) said. Speculating, he imagined environmentalists taking an approach similar to that of pro-life activists in Kansas: “And now you go, ‘The oil execs! I want to come after them and indict them! Because of climate change!’ I mean, I’m being a little bit facetious to make the point… that you would want to book end this pretty tightly, because this would have – could have – high potential for being abused.”
Hughes agreed, saying it could open a “can of worms.”
No further hearings for SB15 have been scheduled. Given the high threshold of a two-thirds majority needed in both chambers, it’s future is doubtful. The lack of a fiscal note doesn’t help. The multitude of possible negative implications if enacted likely doesn’t either.
But, most significantly, the bill has no constituency. Aside from Haeg — who told the committee, “As much as I would want you to fix my case, you’d have to follow the rule of law and you can’t do that” — there is no one to point to as an example of why the law is needed or who would directly benefit from it. There’s simply a supposition that some unknown individual, at some yet-to-be-determined time, if the legislature refines the language in an unspecified manner, might need it.
That’s hard to sell as a priority this far into session.
This article brought to you by Rise Against’s “Wolves“