*1 innocence, governing even if the rules mo- petitions trial post-
tions for new Alaska, Appellant, STATE of conviction relief would bar the defendant obtaining any relief. PEASE, Appellee. Kevin W. Here, has genetic Osborne not offered No. A-8905. Rather, evidence. he asks this Court to or- re-testing der of the condom found at the Appeals Court of of Alaska. scene of the erime so he can obtain new July27,2007. genetic might conceivably evidence that favor his claim of innocence. case, prior opinion our in Osborne's we
assumed that this Court obliged would be proposed
order the DNA testing if Osborne that a show favorable test result would
conclusively establish his innocence. Os-
borne, 110 P.3d 995. We then remanded court, superior
Osborne's case to the direct-
ing superior whether, to decide case,
under the facts of Osborne's he could requirement
meet this for renewed DNA
testing. Id. explained
As opinion, the lead Judge
Gleason concludedthat even if renewed DNA yielded
testing the result most favorable to is,
Osborne-that even if testing the renewed
showed that Osborne could not be the source genetic material found on the con- test conclusively
dom-this result would
establish Osborne's innocence. (both
Given the evidence in Osborne's case evidence at Osborne's trial and
the additional fact that Osborne has since guilt),
confessed his correctly Gleason
concluded no matter what results the
proposed testing might yield, DNA this re- testing
newed conclusively could not estab- Thus,
lish Osborne's innocence. process
due require clause would additional testing instances,
or renewed DNA in some
re-testing required is not in Osborne's case. reasons,
For agree my these I col-
leagues superior decision of the
court should be affirmed.
986 Jr., Attorney Gen- Hawley Assistant W.H. Ap-
eral, Special Prosecutions Office of Marquez, Anchorage, and David W. peals, Juneau, General, Appellant. for the Attorney Fairbanks, Bodwell, Appel- for the M. Lori lee. COATS, Judge, Chief Before: STEWART, Judges.
MANNHEIMER OPINION MANNHEIMER, Judge. trial, Pease and
Following
Kevin W.
robbing
convicted of
L. Roberts were
Marvin
teenage boy, and also as
murdering a
adult,
Dayton,
sepa
in a
Franklin
saulting an
night. A more de
that same
rate incident
events is contained
description of these
tailed
(Alas
State,
54 P.3d
319-321
in Pease v.
af
opinion in which we
App.2002)-the
ka
and Roberts's
convictions.1
Pease's
firmed
affirmed
after this Court
About six months
convictions,
jour-
two
Pease's and Roberts's
University
Alas-
nalism students
jurors had
reported
ka Fairbanks
during their
engaged
group
in a
investigation
re-
Further
deliberations.
During
experiment:
of this
vealed the details
deliberations,
asked
to the northwest
them outside
bailiff to take
(the cor-
Anchorage courthouse
corner
Street). Two of
and I
of Third Avenue
ner
north side of
crossed to the
then
the loca-
walked west
Avenue and
Third
by the Elevation 92
formerly occupied
tion
is,
yards
point
a few
restaurant-that
Third Avenue and
the intersection of
west of
Street,
from the
approximately 480 feet
K
groups
two
jurors.
positioned, the
other
So
across this
at each other
looked
each
to see if
distance
(The
significance of this
other.
shortly.)
explained
be will
this,
peti-
Pease filed
Having learned all
relief, arguing that he
post-conviction
tion
to a new trial because
was entitled
State,
App. Memo-
App.2003),
v.
Alaska
and Frese
actually perpetrated these crimes.
1. Four men
23, 2002),
(October
Opinion
4629
No.
two
randum
of the other
We
the convictions
affirmed
(Alaska
tus jurors' experiment lief, characterized is, cireumstances-that the best of under credibility aof attempt to assess as and the ob- good, is lighting when witness, But as Arlo Olson. key government the ob- to make "unlimited time" has server recognized, the cireumstances Judge Esch "in an servation, is when the observer experi- jurors' experiment show make the ob- state" to physiological optimal to as- only peripherally relevant ment ill, ("awake, alert, [and] servation testimony. credibility of sessing the Olson's drunk, influence of under [or] above, drink- had been explained Olson As drugs"). made his observations ing, and he Arlo Olson's dispute to whether This as (in October, when was night middle of humanly possible of Pease was identification dark). attempt repli- jurors made no *4 summations deliv- prominently the figured conditions, though these fac- even cate these attor- and the defense prosecutor the ered assessing obviously important to tors were Judge Esch the trial. As neys at the close of identification. of Olson's the trustworthiness decision, "all counsel discussed noted his Rather, of the the circumstances based on and witnesses testimony of these two the of their jurors' accounts experiment and the denigrate its or attempted to bolster [either] actions, primary that Judge Esch found value." ... to test "was purpose of their is, testimony". That validity Loftus'[s] of deliberations, jurors at- During their was to of the main by looking out of tempted to test this issue human- that it was not Loftus's assertion test they could jury to see room window conditions, to the best ly possible, even under (The jury at a distance. recognize people at a distance another Anchorage in the courthouse windows room than 200 feet. greater city north; overlook these windows face (farther lot, streets, and parking jury to authority upholding the Cases distance) Railroad of the Alaska portions experimentation to test engage in factual However, Anchorage.) yard and the Port the theories by witnesses or made assertions at a people's features effort to discern this attorneys suggested by the jury room window through the distance jury was to ago, the role of the Centuries jurors had dif- unfruitful because the proved allegations of eriminal behavior investigate away a concerning how fering far estimates on their a decision based then render better person was. To particular observed however, times, In modern investigation.2 issue, jurors to decided investigate this is, and the government parties-that other across and view each go outside investigating charge of defendant-are off. paced that could be distance (with the the facts of the case presenting authority call having to judge a residual trial jurors left in this context that It was and to cross-examine additional witnesses experi- and conducted the courthouse parties).3 presented by the witnesses had Apparently, ment. jurors longer has a formal least six of the no mixed results: Because the recognize investigative they role, were able indicated often declare courts decisions to base their juries required are distance, at least this but other across each court, presented in solely the evidence not. on acknowledged that he could juror one Eng- their friends. As heard from what Israel, H. LaFave, R. Jerold 2. See Wayne ed.1999), (2nd to a more urbanized Nancy King, from a rural J. Criminal Procedure land moved 1.4(c), p. longer possible society, § 177 n. 113: to assume Vol. it was no jurors [was method [to were self-informed. A introduced When the Normans law], merely gain sought English presenting ... facts to the developed for then] community knowledge advantage of lo- the trial. the course of jurors were established, cal events. As first something likely neighbors to know who ("Calling and Rule 614 Alaska Evidence 3. See They typically question. based the facts in Court"). by [the] of Witnesses Examination knowledge and their own their verdicts on juries independent are barred from (Ariz.App.1991), one of the was a ly investigating the case or from otherwise medical doctor. He "shared the other (.e, considering extraneous information knowledge [his] in fund of ... regarding blackouts", alcohol and during formation that was not elicited cocaine ... and he trial).4 Here, also told the other example, disagreed is what that he this Court with the defendant's witness who had subject said on this in Gorz v. State: testified that the defendant lacked criminal point] The law [on is well settled. intent because of his alcohol and cocaine duty Jurors have a only to consider consumption. Id. at 166-67. The Arizona open evidence court.... Ev- court held that knowledge doctor's subjected
idence that has not been
to the
not "extraneous" information.
procedural safeguards
impinges
of trial
confrontation,
rights
constitutional
As can be seen from these examples, a
cross-examination,
juror's personal
knowledge
counsel.
topics
of such
may
quite
be
important,
crucial,
even
in eval-
Gorz,
(Alaska
749 P.2d
App.1988).
uating
credibility
plausibility
But this is an over-simplification. The law
testimony presented during the trial. Nev-
does,
fact,
rely
sometimes allow
ertheless,
juror
knowledge is not consid-
on information that was obtained outside of
information,
ered "extraneous"
though
proceedings.
the court
it is obtained extrajudicially.
It is not mis-
*5
Supreme
The Alaska
Court has held that
jurors
conduct for
to share this information
jurors
discuss,
on,
are allowed
rely
and to
other,
with each
nor is it misconduct for the
any "pre-existing ... knowledge
general
of a
jurors
rely
on this information during
nature" that
bring
individual
to the
Titus,
their deliberations.
Twenty years
(1975),
trial for child
447,
defendant
upheld
457
Court
Atlantic,
Virginia Supreme
injuries had
that her infant's
claimed
jury experiment
abuse
more intrusive
an even
baby's two-year-old
109,
Commonwealth,
when the
17 S.E.
inflicted
90 Va.
been
Taylor v.
baby
telephone.
with
(1893).
prosecu-
struck
a murder
brother
Taylor was
812
telephone
ex-
with the
jurors experimented
introduced
government
tion in which
evidence),
(which
marks
into
particular
been admitted
cartridges that bore
had
pended
if it was conceivable
"plunger"-what
weight to see
weapon's
testing its
by the murder
left
have used
firing pin.
two-year-old
The defendant
that a
call
we now
introducing
injury.
by
evidence
inflict serious
responded
make such
rifle did
firing pin of his
827,
A.D.2d
540
Engler, 150
People
v.
cartridges. During their
expended
marks on
591,
(1989), jurors experiment-
594
N.Y.S.2d
deliberations,
called for the defen-
vaporizer to test
the defendant's
ed with
room,
brought
to the
rifle to be
dant's
injuries had been sus-
child's
that a
claim
weapon to see
dismantled
and then
carelessly played near
the child
tained when
firing pin.
tampered with
had
if someone
vaporizer.
indeed,
fir-
(The
jurors discovered
Inc.,
Motors,
275
Taylor
Reo
And in
v.
recently tampered
ing pin "had been
(10th Cir.1960),
jurors dis-
F.2d
trial".)
the occasion
fixed for
exchanger
a heat
mantled and reassembled
action,
condemning
Rather
than
way it
testimony
to test a witness's
commended
Supreme Court
Virginia
functioned.
making
jury" for
serutinizing
"intelligent
Id., 17
at 816.
discovery.
S.E.
Bowlin,
cases listed
In addition to these
ap-
cases are listed
have
appellate
recent
decisions
more
Several
several
in Bowlin
decision
experiments
in this Court's
conducted
proved
described
(Alaska
App.1991).
State,
during
P.2d
deliberations.
*6
771,
Kurena,
43
Ill.App.3d
87
People v.
114,
In
Balisok,
866
123 Wash.2d
In
v.
State
(1980), jurors
277,
277
410 N.E.2d
Ill.Dec.
(1994),
held that
631,
the court
663-34
P.2d
knife
replica of a
a cardboard
constructed
alleged
the
jurors'
the
re-enactments
evidence, and
into
admitted
that had been
and the vice-
the defendant
struggle between
the
replica to re-enact
they used this
then
thus
evidence" and
not "extrinsic
tim were
could
wounds
assault,
if the victim's
to see
jury misconduct.
not constitute
did
right-
by left-handed
inflicted
a
have been
930,
410 F.2d
Hephner,
v.
In
States
United
weapon
if the
to see
person, and
handed
(7th
Cir.1969),
upheld a
court
the
936
in a sleeve.
concealed
could have been
juror covered his
in
one
which
415,
164 Mont.
524
Thompson,
In
v.
State
ju
sunglasses so that
and donned
head
handgun that
(1974),
a
jurors used
P.2d 1115
possible
it
whether was
could evaluate
rors
to re-enact
into evidence
had been admitted
disguised
identify
who was
a
testimony,
struggle described
manner.
if it
fired
was
have been
gun
if the
see
565,
Agado,
P.2d
567-68
People v.
964
In
in the testimo-
manner described
held in the
upheld
court
(Colo.App.1998), the
ny.
-_
gun
into
a
admitted
experimentation with
94,
State,
146
141 Tex.Crim.
In Allen v.
trigger pull, and
its
to determine
evidence
(1940),7
jury experiment
384,
386
S.W.2d
testimony.
defendant's
thus to evaluate
to see
into evidence
pistol admitted
ed with a
Chamberlain,
723,
112 N.M.
defendant,
In
v.
cylinder
State
if,
by
as claimed
(1991),
673, 676,
in which the
a case
P.2d
place
particular
at a
"hang" or stick
would
self-defense,
and which
claimed
defendant
handgun
dis
and cause the
its revolution
offered
and the defendant
government
accidentally.
charge
State,
4,
357,
grounds by
Stiles
rev'n, 1972),
on other
(Chadbourn
p.
7. Overruled
§
Vol.
1).
(Tex.Crim.App.1975).
1026 the defendant was conduct.... given [J]urors must be 992 its decision this Court issued decided before to deliberations in their enough latitude concludes then Judge Stewart experiences in Gorz. use common them to permit authority ... rely on their verdict. "it is beneficial reaching [not] illustrations rule when the jurisdictions] [from at 1026.
Avery, 717 F.2d is clear". adopted Gorz 988, Smith, N.Y.2d 59 People v. also See (1983), 662, 453 N.E.2d 466 N.Y.S.2d rule stated Gorz true that the may It be ap- Appeals York Court only the New where this is uncomplicated, but is "clear" principle to same plied accurately describe not does because Gorz juror. single One by a conducted point. the law on this complexity of police trial was disputed issues Smith's Gorz, the issue of the discussion inte- ability to observe purported officer's and concluso- is both short experimentation Dur- through rear window. its rior of a car ry: deliberations, jurors tested the one of ing is well set this issue governing law through looking testimony by officer's only duty to consider have tled. Jurors cars, while both of various rear windows open court. the evidence with the other walking to dinner juror was Thus, con juror commits misconduct riding in a juror bus jurors and while ducting an unauthorized hotel. the other results or relying on the personally either juror's ex- upheld high court New York to other communicating results] [those periments. that has jury. Evidence members of above, juries discussed of the cases In each safe subjected procedural not been theoreti- that could experiments performed constitu impinges on the of trial guards the defendant's infringing cally viewed as be confrontation, cross-exami rights to tional and cross-examina- confrontation rights Louisiana, nation, Turner and counsel. instances, Moreover, the cir- many tion. 549-550, 472-73, 85 S.Ct. U.S. experi- jury's of the or conditions cumstances (1965). 13 L.Ed.2d clearly-deviated arguably-or ment of the or conditions cireumstances from the an obvi- This leads to being litigated. events case, ... a member present In the jury experiment difficulty: because ous by per- misconduct jury committed [the] judge nor neither the private, place
takes
time it
amount of
sonally determining the
poten-
attorney
point out the
can
the defense
of the
the scene
take to walk from
would
jury's
pro-
in the
method
tial weaknesses
Inn. This
Alaska Motor
explosion to the
or
cedure,
cirenmstances
point out
or
by the state.
seriously disputed
not
point is
or fails
experiment omits
conditions
Gorz,
jury's experimenting objects with these likely to acknowledge condone. We privacy jury of the room. instances, numerous courts have held jurors they committed misconduct when ven conducted in Pease's case jury tured out of the room to view the scene presents even less cause for concern terms crime, long or to assess how it would rights of a defendant's of confrontation and another, take to place travel from one or jury's cross-examination. The focus of the to conduct case-specific experiments. inquiry case-specific was not a assertion prime Our own decision Gorz v. State is quality about the or particular condition of a . example object Rather, or event. Judge as Esch found, jury's primarily attention was fo- We nevertheless conclude testing generalized cused on assertion presents conduct in materially Pease's case witness, by made Pease's Dr. Lof- from the ones different described situation tus-the impossible, assertion that it is preceding paragraph. As Esch conditions, under the best for one human found, the surrounding cireumstances the ex- being another at distances of periment jurors show that were not at- more than 200 feet. tempting nighttime to re-create Arlo Olson's observation of Day- the assault on Franklin appears jurors It attempted first Rather, jurors ton. attempting were test Dr. Loftus's assertion in the general test Dr. Loftus's assertion about the room-by looking out of the window to see if perception. limits of human recognize people at a distance. above, Under type the cases discussed Conceivably, diéagreement when arose proper. jurors took jurors among concerning the distance advantage experience of an afforded ev- peo- between room and the window eryday experience observing peo- life-the ple through whom the observing were ple at a distance from the window of a multi- window, jurors might have resolved story directly accuracy test the building-to by deferring judgement this matter to the inaccuracy of Dr. Loftus's assertion. experience individual who had more viewing people objects at a distance-for (Indeed, that, by this Court has little doubt coach,. example, pilot or a soccer If the discussion, point in our many of our (thus obviating had done so the need tempted-or readers already have been have room), for them to leave the this would temptation-to succumbed to peer out of be an case. try easier own windows and themselves.) (for reason) But the whatever disagreement by unable to resolve their dis- question concerning When this the limits So, instead, cussion and debate. decid- perception of human disputed became a issue outside, *9 ed to renew their observations where trial, at Pease's the undoubtedly were they objective could use a more method for rely experience entitled to on their own when measuring the distance. they ultimately discussed assessed the credibility And, Dr. of assertion. It Loftus's is true that the conducted this above, based on ju- experiment the cases discussed the without the authorization of the rors were also authorized to make test obser- given court. But we believe cireum- the
994 of and conditions the cireumstances al- ment and
stances, judges have would reasonable night on the Arlo observation jurors had asked. Olson's if the experiment the lowed above, But, we con- explained as objective question. to test Dr. was the main Because perception clude that human immaterial. about are Loftus's assertion these differences (rather than to re- optimal conditions under moreover, note, and his that Pease We experience of personal Arlo Olson's create if present been the attorney not have would particular distance viewing people at of re- the lawful course jurors had followed crimes), it did not matter the night the of resolving jury maining the room inside differences between were obvious there in- the distances disagreement actual events jurors' experiment and the the debate, through volved discussion being litigated. ju- individual judgement of deferring to the to have better skill were deemed rors who v. Dickinson point, see Bierria this On 654, Co., Ltd., estimating P.3d 658-59 distances. Manufacturing 36 (Alaska 2001), the issue a case that addresses sum, jurors' exper- conclude that the In we insist mean when of what courts inquiry for the proper type of iment was proposed experiment be of the conditions make, though the com- jury even at the "substantially to the conditions similar left mitted misconduct when 8 Bierria, In our the event issue." time of without the court's room for concept emphasized that supreme court permission. similarity" hinges on what the of "substantial remaining question is whether Often, there prove. experiment is offered leaving jury room with jurors' act of between the dissimilarities are identifiable requires reversal of Pease's authorization out experiment cireumstances of the convictions. nevertheless, litigated; being real-life event Gorz, P.2d at 749 "substantially As this Court noted similar" is still 1855, require of misconduct not all acts irrelevant to what are these dissimilarities fact, In our jury's verdict. reversal of the experimental evidence proponent of the "generally has declared supreme court trying prove. is unless the evidence should stand the verdict Here, to test Dr. Lof- wished violation of clearly establishes a serious impossible, it even assertion that tus's duty] de duty violation of juror's and [this conditions, under the best trial." Fickes v. party of a fair prives a greater than person at a distance another Service, Inc., P.2d 628 Petrolane-Alaska Gas irrelevant purpose, is 200 feet. Given State, (Alaska 1981), 908, quoting v.West 910 other, in jurors' of each observations 1966).9 (Alaska P.2d 852 Anchorage, bore daylight on Third Avenue jury miscon- that the act of conclude nighttime obser- We dissimilaritiesto obvious case-ie., the act in Pease's duct by Arlo Olson in his testi- described vation mony. without authoriza- leaving the room oth- that was tion to conduct reason, fact that neither For this same violation of proper-is not a "serious erwise attorney present nor his defense Pease [jurors'] duty" purposes Fickes/ is not critique to witness West test. pleadings important. Pease's particularly Moreover, act of assuming that (both appeal), and on superior in the violation leaving jury room was serious ir- argues that jurors' duty, we further conclude jurors may remediably flawed because deprive Pease jury's experiment did not may misper- perceive, or have have failed to explained, have fair trial. As we ceived, the cir- of a between crucial differences Dr. Lof- purpose was to test experi- jurors' primary of their and conditions cumstances present emphasis "and" is not on the word Transportation and 9. The Department 8. v. State Beck West; (Alaska Facilities, original quotation it was added P.2d Public 1992). by the Fickes Court. *10 general tus's assertion the limits of from a distance of 200 feet.. It is all but perception optimal human under conditions. that, assertion, inevitable faced with this the itself, And, experiment, proper. jurors was frequently would test it. We observe experiment, given people life, there is daily at a distance in our that, experiment to and it hearing no reason believe seems obvious after Dr. (4.e., yielded misleading testimony, any juror a false or a result Loftus's with normal jurors result that the could not understand curiosity ability would test their own to ob- identify people evaluate). serve and at a distance- meaningfully or probably by doing something similar to what Thus, though experi- even the result of the jurors did in this looking case: out the may jury's ment have influenced the ultimate room, jury window of the or looking decision, jurors fact that conducted down during the street a lunch break or when require does not reversal of driving night. home at Pease's convictions. jurors there, stopped Had the it seems Conclusion unlikely that Pease would be entitled to a simply new trial. It would abe matter of the here, explained superi- For the reasons jurors using their common every- sense and grant or petition court's decision to Pease's day experience to a resolve factual issue. REVERSED, post-conviction relief is Pease's convictions are reinstated. could, course, try We stop jurors personally assessing credibility
COATS, Judge, concurring. Chief probative foree of in-court testimony-by specifically instructing jurors not to conduct STEWART, Judge, dissenting. types these experiments common-sense COATS, Judge, concurring. Chief and observations. But if we did this-if A contested issue at trial Pease's strictly jurors law prohibited from conduct- Olson, whether Arlo from a distance of 400 ing any extrajudicial kind of evaluation what- more, identify people feet or could who unlikely soever-then it is verdict Dayton. Franklin attacked Olson testified serutiny. would withstand close an After identify that he could the four assailants verdict, disappointed adverse litigant could from this distance. To rebut Olson's testi- by simply questioning obtain a new trial mony, Geoffrey the defense called Dr. Lof- jurors getting they them to admit that tus, perception human visual something did to test the factual assertions memory. they Dr. Loftus testified heard in court. conditions, optimal under impossible jurors It is true that Pease's case identify away. someone from even 200 feet did not limit themselves to observations from deliberations, During jurors their at- jury Instead, they room window. en- tempted to test Dr. Loftus's assertion (as gaged group) in mutual observation at a looking out of the room and distance on the street. But it does not seem window Then, observing people below. dissatis- materially changes analy- to me that this investigation, fied with this went sis. outside and conducted the that is Even though continued their at issue in this case. street, testing observing on the each other at question Esch, facing Judge ultimate distance, they engaged still were Court, and now this is whether experimentation, same kind of common-sense conducting act on the everyday based on experience, that would street outside the room undermines con- have occurred had the confined their fidence in their verdict to such an extent that fact, observations to the room. grant we should Pease a new trial. probably able to conduct a more certainly expect jurors street, We would criti- accurate on the since cally Dr. examine Loftus's assertion that it is making be sure that were all humanly possible identify observations across the same distance. *11 Thus, Pease is not out, their verdict. fairness of true, points that Pease
It is as trial. to a new testimony not entitled credibility Loftus's of Dr. Loftus's assertion Dr.
the ultimate issue.
STEWART,
dissenting.
Judge,
perception
human
limits of
Olson's claim
majority
it undereut
rea
relevant because
for three
disagree
I
identify the men who
able to
decision
that he was
I
Esch's
characterize
sons.
Dayton.
majority.
Franklin
I conclude
differently
attacked
than the
an unauthorized ex
conducted
Moreover,
he had
admitted that
Olson
And I would
v. State.1
periment under Gorz
when he
drinking
that it was dark
been
that Pease is
Judge Esch's conclusion
uphold
identification,
ad-
and he further
made
relief.
post-conviction
entitled
men for
to see the
mitted that he was able
case,
ju-
discovery in this
several
During
Thus,
the conditions
time.
only a limited
that
trial confirmed
rors from Pease's
jurors observed each
which the
under
courthouse
panel
left the Nesbett
entire
quite different from the
were
on the street
an
performed
the middle of deliberations
surrounding Olson's observa-
cireumstances
jurors generally agreed
experiment.
of
ob-
But the cireumstances
Olson's
tions.
was to
servation,
potential difficulties
and the
identification,
person looks like at the
what another
making
faced in
see
he
testimony,
to see
discussed
distances
at Pease's trial and were
thoroughly aired
were on the
the relevant distances
what
unreal-
extensively argued
jury.
It is
validity
of Arlo OIl-
ground, and to test
were unaware
to think that
istic
only witness
testimony. Olson was the
son's
cireumstances of
between the
the differences
at the seene of the
placed the defendants
who
cireum-
and the actual
their
(the
occurring on October
first crimes
identification.
stances of Olson's
robbery
of Franklin
charges of
and assault
aware
jurors must have been
Because the
Dayton).
differences,
jurors'
of these substantial
reasonably
anyone
capability of
of Dr.
only
as a test
makes sense
identify
a distance was the
testimony,
of Olson's testi-
test
Loftus's
testimony
a contested
subject
Dr. Loftus's
mony.
jurors found that
-If the
sixty
Although more than
witnesses
issue.
percep-
of human
about the limits
assertion
trial, only
testified
during the
Olson
testified
accurate,
optimal conditions was
tion under
robbing and as-
the defendants
that he saw
credibility
largely undermine the
this would
offered
saulting Dayton. Other witnesses
testimony. But even if
of Olson's
conflicting evidence about
the defendants'
exaggerated
that Dr. Loftus had
concluded
occurred.
when these erimes
whereabouts
ju-
perception,
human
the limitations of
question
have to resolve the
rors would still
spoke
that he
with one of
Olson testified
whether,
less-than-optimal
condi-
under
men,
together
of whom were
all four
tions,
identifi-
could make
accurate
car,
Olson
steps of
at the front
Marvin Roberts's
attacked Franklin
of the men who
cation
the assault
Eagles Hall in Fairbanks before
Dayton.
thirty
Dayton. Approximately
minutes
four men
said he saw
passed before Olson
jurors engaged
appears
It
to me
Dayton
attack
down
street.
credibility
to resolve the
in a sensible effort
outside,
dark
confirmed that was
testimony, and that
un-
Olson
Dr. Loftus's
lights
a number of
near-
limita-
but that there were
significance and the
derstood both the
nearby gas station
by, including lights from a
the sort
experiment.
their
This was
tions of
lights.
stated
juries
street
Olson also
routinely trust
issue that we
of factual
yards
approximately 150
although he was
common sense and
using their
to resolve
assault,
recognized
from the site of
experience.
For these
combined life
Frese,
im-
George
Eugene
Vent
reasons,
Dayton,
conduct
I conclude
them for a
mediately
he had known
because
the trustworthiness
does not undermine
(Alaska App.1988).
1.
while. He further stated that the men had 350 or stopped 360 feet and in front of the part their backs to him for of the time but building entrance to an office near the inter- *12 got section of Third Avenue and K Street. This that he a clear look at all four men for approximately three or four seconds while distance was later measured at approximate- they hurrying back to the car. Olson ly According 434 feet. to at least two ac- conceded that he would have needed binocu- counts, juror another also walked down to features, distinguish lars to facial men's spot. jurors the same then looked at recognize but he could them their hair they each other to determine whether could recognized and build. Olson also the car the recognize distance, one another at that and a got men into as the blue car he had seen they few stated that also looked at in them earlier. passersby they to test whether could distin- guish the strangers. features those Al- later, dayA or two Olson read an article in though most of the could not remem- Frese, Pease, newspaper implicating (an precisely ber what time it Roberts, they was when and Vent J.H.'s murder act experiment, they conducted the agreed all separately for which he was convicted and that it during daylight hours. subject appeal). which is not the of this article included head shots of the four men. depositions, generally recognized Olson testified that he the defen- agreed that dants as the Day- same men who assaulted get was to an idea of the distance discussed ton. immediately Olson did not contact testimony and to see what another police because he did not want to turn in his person juror looks like at that distance. One friends, ultimately, changed but he his mind testified: reported the assault. Olson told the Well, part testimony was that an police recognized that he the four men from happened incident had that distance newspaper as the four who had assaulted from wedding reception.... And I Dayton. think the was that it [contention] would be Olson drinking admitted alcohol that eve- accurately difficult to see at that distance. ning. during He conceded that the attack on just And it satisfying so was a matter of Dayton, the assailants often had their backs was, fact, ourselves whether true or him, only toward and that got good he look not. at them as ran back to their car after According juror: to another attacking Dayton. And while Olson estimat- way The idea was to see if there was some Dayton ed that approximately was attacked know, actually, you question we can if it's a him, yards away from there was evidence distance, of can we see a certain can we presented that the distance was closer to 550 idea, get just an by going pacing- out and (approximately yards). feet off, pacing guessing but somehow what impeach To testimony, Olson's the defense be, just that distance would to feel com- witness, an expert Geoffrey Dr. fortable[.] superior Loftus. The qualified Dr. Loftus as in human percep- visual I "experiment," don't like the word but memory. tion and Dr. Loftus testified that probably up. sums it Bottom "ability distinguish person] [one Tine, one's was, me, a confidence builder or some else, somebody recognize other words to my assump- sort of satisfaction that ... on, them essentially later is nil" at distances right begin tions were with. greater than 200 feet. He testified that this cireumstances, is true the best of juror This also stated that on "one of the time, light, with full unlimited and a sober days{, jurors] first went to the window and alert observer. other, you asked each how far do think thing is[?]" deliberations,
During accompa- the bailiff nied as walked to the corner When asked about the "connection [be- of Third Anchorage. Avenue and I Street tween] this and the trial testimo- juror paced A off a distance he ny," juror believed was a third responded: "There was thinking kept I just-I remember feet is you could ... what around some discussion have reference just-I don't you that's distance, you-could from that see would know what someone point. I don't persons[?]" at that distance person see if like, an ant or they'd look like look juror stated
A fourth recognizable or what- try halfway they'd to- look that was purpose, singular "had know, that why was-you I to make that's So know, for each ever. you suppose I in on our chipped I thought my about how two cents mind what up his own thing. doing this whole somebody." And discussion far he could "dis- she recalled explained that juror fifth *13 that, he explained because juror also This ... references and distance about cussions not eyesight, he could poor has And, know, field.... to, say, a football you But he listened the street. people down field, I have know, and me a football you tell saying took jurors were and other what the me talking about. Show you're what no idea they could they said that into consideration mean; you what mean." I know you what the street. down recognize the the court- outside experiment She said like at least juror, "it seems According to this how far the to show designed house was said, 'Oh, yeah, I can tell people half of actually discussing they had been distance so, it it made believable and then that is so was. It removed the possible. it's to me that remember how juror impossi- could not might A sixth have that it's that one doubt that it recalled about but at experiment identify came someone or to see someone ble that "it could speculated hot out and was feet." walk, go going to for [they] were have been Thus, jurors agreed that a some far of how a discussion then there was Olson to test whether experiment was there, it was, and so that distance recognized the defendants. have what other to see looking at each turned into summary disposition for Pease moved also distance." She like from that it looked relief, ar- post-conviction application his the de- expert witness for that an recalled unautho- jury performed an that guing recog- impossible [to "had said it was fense experiment and rized question], at the distances nize someone him that denied misconduct constituted mother, and recognize his he couldn't [that] cross-exami- confrontation and rights his jurors] that a lot of [the remember[ed] [she] contending that opposed, nation. The State about whether talking about an unau- not constitute jurors' actions did true, aceu- that was whether not that was Pease had not experiment and that thorized rate." unfair. was that his conviction demonstrated juror, According to a seventh facts the material Judge Esch found that jurors were kind of confused some of dispute. Judge Esch found not in know, were distance, you about how far is unauthorized, out-of- jurors conducted an whatever, ... and so we in relation credibility of to assess group [tried] outside as [went] (In testimony. trial and Dr. Loftus's Olson's somebody down stand off or have walk challenge did not briefing, the State its initial dis- a certain we determined be where findings, agreed factual Judge Esceh's that. tance, do ... and so we had jury's experiment argument oral pur- juror recalled the Finally eighth an misconduct.) as follows: pose of the for evalu applied the standard Esch just to what some- see purpose was] [The court de ating misconduct away, you at 500 feet look like one would ultimate "[The v. State2: Gorz know, my mind I have scribed or-because juror involving what 500 misconduct figuring [feet] out case hard time issue beyond of, said a reasonable it can be is whether of reference I kind of-one would be. not contribute misconduct did doubt that the like, And 500 is 800 feet. [field] a football 2. Id. rized,
to the verdict."3 He ruled that experiment. the miscon out-of-court Judge Esch likely jury," jury sought duct "was to have influenced found that the "to test the validi- ty testimony," Loftus'[s] and could not find that "the [miscon to "assess [] validity testimony of Arlo duct] did 'contribute' to the ultimate ver Olson." guilt." Accordingly, granted post- dict of Next, to evaluate the effect of the unautho conviction relief. experiment, rized Judge Esch turned to a test set out in Swain v. State 12: that led to the reversal of simpl The ultimate issue of juror influence on the the defendant's conviction in Gorz was is resolved reference to the substantial charged first-degree Gorz was e.4 test, objective likelihood an standard. arising explosion arson out of an that oc effect, the court extraju must examine the apartment building curred at an in Fairb dicial judge material and then whether it is anks.5 Gorz alibi defense that inherently likely to have influenced the based, part, on evidence that Gorz and juror. Though may test unduly seem couple his co-defendant were seen a of blocks speculative, significant has support apartment building from the fifteen law, the case appears there to be no *14 minutes after the blast.6 The State did not precise way more to articulate the stand present any specific evidence on it the time ard.[13] would take to walk from the site of the Judge Esch ruled that experiment seen, "was explosion to where Gorz was but did likely to have influenced establish that the distance delibera- between these two tions." He found that the trial was "rife with locations was about two blocks.7 conflicting testimony," especially Olson's During jury's deliberations, a recess testimony identification impeaching and the one of the walked from the crime testimony Loftus, from Dr. and an apartment scene at the building place to the experiment designed to dispute address this Apparently, where Gorz was seen.8 the walk "likely the evidence was to have influenced took four to five minutes.9 argued Gorz that the verdict." juror's experiment constituted miscon-d reconsideration, On Judge rejected Esch uet.10 the State's claim that against the evidence conviction, This reversed Gorz's rul- Pease was so overwhelming negate as to ing that: juror effects of the misconduct. He de- juror by commits conducting misconduct against scribed the evidence Pease as "com- an experiment unauthorized and either but, pelling" applying the Swain test's be- personally relying on the results or com yond standard, a reasonable doubt he could municating them to other members of the find "that the action did not 'contrib- jury. Evidence that subject has not been ute' to guilt." the ultimate verdiet of procedural ed to the safeguards of trial majority contends Judge that Esch impinges on the rights constitutional jury's primary found that the purpose was to coun-gel. confrontation, cross-examination, and test Dr. impos- Loftus's assertion that it was 1] [1 sible for a another at Judge ruling Esch cited Gor than distances more 200 feet. I do not improperly had conducted an unautho- read being Esch's decision as limit- so 3 3 Id. at 1355. 10. Id. at 1353-55.
. 4 Id. at 1350-55
11.Id. at 1355.
. 5 Id. at 1350
(Alaska App.1991).
12.
jury was occurred in those cases experiments testimony. Olson's during tri admitted with evidence room problems with points out also The evidence majority those cases And the al. trial, there was During jury experiment. think it is I do not Gorz. before decided feet from was 550 that Olson evidence authority rely when on other beneficial A measure- Dayton. nighttime attack juror con clear: adopted in Gorz is rule juror in off paced the distance ment of that de ducting an unauthorized than 485 it to be less showed open court vio untested velops evidence feet. rights.17 constitutional the defendant's lates testing more than jurors were Because agree that testimony, I do not Loftus's Dr. constitu- is a Because such judges reasonable conclude we can violation, un- cannot stand a conviction tional likely have authorized would conclude, beyond a rea- court can less the is evidence Experimental they conducted. doubt, did not the misconduct sonable experi conditions when the admissible affirm I would the verdict. contribute to the condi substantially similar ment are the unautho- Judge Esch's conclusion in issue.14 the event the time of tions at influ- likely to have experiment was rized multi- Love, court announced supreme Therefore, I jury's deliberations. enced the condi whether analysis to decide part dissent. The fac substantially similar.15 tions were (1) dissimilarities include: whether tors *15 experi results of the likely to distort
are is not the evidence degree
ment (2) can
relevant; the dissimilarities whether explained so adjusted for or
be by understood can be on the results effect (8) jury; under the matter degree to which
and the science; subject precise is a ANDERSON, Appellant, Joseph L. (4) would be whether knowl skilled or persons considered valid v. field which edgeable in the concerns.16 Alaska, Appellee. STATE of jury's experiment The conditions No. A-8064. facing markedly from the conditions differed Dayton at attack on Olson viewed Olson. Alaska. Appeals Court under 550 feet of about night at a distance Aug.3,2007. looking jurors were lighting. The artificial daytime at a dis- during the at each other than Olson feet less than 100
tance more Considering the differences
faced. variation in dis- significant
lighting and the
tance, conditions were I conclude
substantially similar. Castro, Cir.1991); Cal.App.3d (9th 1969). People 184 State, 622, (Alaska v. 627 457 P.2d
14. Love v. (1986); 852-54, People 849, v. Cal.Rptr. 280 906, 832, Legister, 552 N.Y.S.2d 15. Id. at 628. 75 N.Y.2d (1990); Brown, v. 154, 154-55 N.E.2d People 16. Id. 51, 399 N.E.2d 423 N.Y.S.2d N.Y.2d (1979). 53-54 Gorz, United at 1355. See also 749 P.2d 17. See 818, 821-23 Navarro-Garcia, 926 F.2d States