Alvarado Revisited: a Missing Element in Alaska's Quest to Provide Impartial Juries for Rural Alaskans

• Citation: Vol. 28
• Publication year: 2011

§ 28 Alaska L. Rev. 245. ALVARADO REVISITED: A MISSING ELEMENT IN ALASKA'S QUEST TO PROVIDE IMPARTIAL JURIES FOR RURAL ALASKANS

Alaska Law Review
Volume 28
Cited: 28 Alaska L. Rev. 245

ALVARADO REVISITED: A MISSING ELEMENT IN ALASKA'S QUEST TO PROVIDE IMPARTIAL JURIES FOR RURAL ALASKANS

Jeff D. May ^[*]

Abstract

In Alvarado v. State, the Alaska Supreme Court declared that an impartial jury is a cross section of the community and that the community where the events at issue transpired must be represented in the jury. This decision spurred changes to jury selection procedures and the creation of Criminal Rule 18, an effort to ensure defendants from remote villages are judged by a jury representative of these rural areas. The Alaska Court of Appeals recently addressed an issue of first impression regarding the application of Criminal Rule 18. In Joseph v. State, the defendant was convicted of murdering his girlfriend in the tiny Native village of Rampart. His trial was conducted in Fairbanks by a jury selected from an area that does not include Rampart or any other similar Native village. Criminal Rule 18 allowed the defendant a limited time to transfer his trial to Nenana, which more closely resembles the characteristics of Rampart. However, the defendant was never informed of this right. His trial counsel believed trial location was a decision for the attorney and did not see a need to request the change. In a memorandum opinion that creates no binding precedent, the Court of Appeals agreed with this view and held it did not violate the defendant's due process rights not to be informed of the opportunity to have his case heard at an alternative trial site. This Article challenges that view, arguing it fails to safeguard the spirit and purpose of the constitutional right to an impartial jury. To remote villagers in Bush Alaska whose customs, culture, and ways of life are vastly different than in larger cities within the state, the opportunity to be judged by those sharing similarities is of upmost importance. Consequently, decisions of trial venue, for purposes of Criminal Rule 18, should be knowingly made or waived by the defendant.

Introduction

Alaska is enormous. The state consists of 571,951 square miles, making its size roughly equivalent to one-fifth of the lower forty-eight states. ^[1] The population of this immense area is unevenly distributed. Nearly one-half of Alaska's total population lives in the City of Anchorage, ^[2] and there are only a handful of other "large" cities, such as Fairbanks (population 31,142) and Juneau (population 30,737). ^[3] Most of the remaining population is scattered throughout small communities, including approximately 200 Native villages known collectively as "the Bush" or "Bush villages." Bush villages share common characteristics such as remoteness, no connection to a road system, predominantly Native populations, and different modes of life than larger urban centers within the state. ^[4] More than half of Alaska's total Native population is located in these remote Bush villages. ^[5]

While making Alaska wonderfully unique, these same characteristics create logistical and administrative challenges for assembling representative juries. Court facilities are generally located in more populous communities, and persons residing close to those facilities serve as jurors. ^[6] Because Bush villages are not connected to outside communities by a road system, it is difficult to involve their citizens in regular jury service. When serious crimes occur in these remote villages, the common practice is to arrest and transport suspects into the larger cities to be detained, arraigned, held in pre-trial detention if bail is not possible, and tried at a district or superior court in front of a jury selected from within fifty miles of that trial site. ^[7] Therefore, for crimes that occur in Bush areas, it is often difficult to empanel representative trial juries. ^[8]

Since the early days of the Alaska Court System, parties have challenged the procedures used to select prospective jurors for these urban trials, arguing they are exclusive of important segments of the populace and fail to collect a fair representation of the rural communities. ^[9] Early challenges were unsuccessful. ^[10] But, the reality of the "enormous gulf which separates the mode of life of the typical Alaskan villager from the type of existence led by most residents of Anchorage and other cities of the State" led the Alaska Supreme Court in Alvarado v. State to announce that for a jury to be truly impartial, it must be selected from a group of persons who represent a fair cross section of the community where the events at issue transpired. ^[11] This holding spurred the creation of procedures better calculated to assemble impartial juries.

Jury selection procedures have changed since Alvarado, but not all rural defendants are afforded trial juries representative of their area. ^[12] The State seeks to avoid systematic exclusion ^[13] of remote villages through application of Alaska Criminal Rule 18, which is an effort to comply with Alvarado by providing a mechanism for defendants from remote communities to obtain sufficiently representative juries. ^[14] The Rule creates several trial site alternatives but places the responsibility for ensuring jury representativeness onto individual defendants. Defendants must affirmatively request a venue change from the presumptive court location to an alternative trial site, if one is available, closer to the place where the crime was committed. ^[15] This must be done within ten days of arraignment or the right is waived. ^[16] If the requested change in venue cannot produce a sufficiently representative jury, the Rule also allows the defendant to request alternative selection procedures, such as broadening the selection area to take in persons who are likely to share more characteristics of those living in the area where the crime occurred. ^[17]

This Article addresses a fundamental flaw in the way Criminal Rule 18 is presently administered, which precludes it from fully honoring the fundamental trial right to an impartial jury announced so vigorously in Alvarado. As noted above, if the defendant does not request an alternative trial site or the use of alternative selection procedures within ten days of arraignment, the options are waived. ^[18] The fundamental flaw is the failure of the Alaska Court System to ensure that this waiver is knowing and intelligent. Because an impartial jury is a fundamental constitutional trial right ^[19] and because the Alaska Supreme Court has recognized that this cannot be achieved unless the community where the crime occurred is fairly represented in the jury pool, ^[20] the Alaska Court System should ensure that defendants are apprised of their Rule 18 rights prior to accepting a waiver of those rights.

As it is presently applied, Criminal Rule 18 does not treat the right to request a change of venue as a personal right of the defendant. Rather, change of venue for jury composition purposes is a trial decision left to defense counsel. ^[21] The Alaska Court System should make the right to an impartial jury personal to the defendant by ensuring the defendant is informed of this right prior to any waiver of it in order to fully honor the defendant's jury trial rights.

Part I provides an overview of the fundamental elements of a criminal jury and discusses the requirement for and importance of a representative jury for rural Alaskans. Part II describes several pre-Alvarado jury selection practices and Alaska Supreme Court decisions regarding jury representativeness and impartiality. These cases demonstrate the early court's narrow view regarding jury representativeness. Part III discusses the 1971 landmark ^[22] decision issued by the Alaska Supreme Court in Alvarado v. State, requiring an increase in jury representativeness for rural defendants despite cost or administrative burden. Part IV discusses the State's efforts to bring the jury selection process in harmony with Alvarado. Part V highlights the deficiency in the application of Criminal Rule 18's waiver provision noted above. Lastly, Part VI suggests how Criminal Rule 18 can be improved so as to provide greater fidelity to the constitutional guarantee of an impartial jury.

I. Fundamentals of a Criminal Trial: Venue, Vicinage, and Impartiality

A discussion of venue and jury selection for Alaskan trials should begin with a brief review of the role of a jury in criminal trials. In early Anglo-Saxon law a jury of the defendant's peers referred to a group of persons known as "compurgators," who were summoned to bear witness to facts. ^[23] These persons were selected because of their familiarity with either the crime or the character of the accused. ^[24] They testified under oath about the criminal activity and the defendant's character. ^[25] In this system, the jury played a role similar to the role of witnesses in today's criminal trials. Over time, the jury system evolved, and jurors went from serving as witnesses to deciding the defendant's guilt or innocence based on evidence presented by others more familiar with the case. ^[26] Jurors were expected to judge the facts impartially but not to have direct knowledge of the case. ^[27]

"As the jury's role changed, so did the rationale for drawing jurors from the defendant's community." ^[28] When jurors acted as witnesses, they were usually persons living in the community where the crime occurred because they had...