Defense seeks mistrial in Allison case

PALMER — Defense attorneys moved for a mistrial in the case of a Wasilla man on trial for his 1-year-old daughter’s 2008 death.

Defense attorneys said they were concerned jurors had seen or read one of two articles about the case in either the Mat-Su Valley Frontiersman or the Alaska Dispatch News published shortly after opening statements were delivered in the case. Both stories allude to a confession reported by investigators in the case and ruled inadmissible by presiding judge Vanessa White in 2012.

Specifically, defense attorneys said they wanted to ask jurors whether they had reviewed news coverage specifically. They also wanted both newspapers mentioned in jury instructions.

White gave the defense until noon, Wednesday to file motions, but appeared to view the motion skeptically. Jurors are already instructed not to review newspapers, television, or Internet articles about cases they sit on, White said.

Adding more detail would likely have the opposite effect, she said.

“If I say don’t read the ADN, the natural inclination is to look at the ADN,” she said. “If I say don’t read the Frontiersman, then the natural inclination is to do just that.”

White did instruct the clerk of courts to look into removing the newspaper racks by the courthouse’s main entrance.

Jury contamination — where jurors are unable to render a fair verdict because of widespread media coverage — had emerged during the jury selection phase of the Allison trial, when one juror was dismissed for using a smartphone to look up past coverage of the case even as jury selection was underway.

While contamination has surfaced in past cases in the Valley and Alaska, including the 2009 case of Frank Adams, when then-presiding judge Beverly Cutler allowed Adams’ trial for murder to go forward despite widespread media coverage of the case, it’s not of particular widespread concern in Alaska, according to Susan Orlansky, a criminal defense attorney with 33 years of experience in Alaska courts.

“Everybody knows that jurors are instructed not to read the newspapers,” she said. “It’s not uncommon that newspapers cover things that jurors are not allowed to hear.”

She said such motions can potentially backfire.

“One of the things that sometimes happens in the real world is there’s this horrible front-page article about the case,” she said. “They ask ‘Did anybody happen to see the front page of the newspaper?’ It’s shocking how few people read the newspaper.”

Many times, most jurors say they haven’t read the paper, with a minority admitting they had seen only the headline in passing, Orlansky said.

The move also should not be interpreted as an indication of the weakness or strength of the defense’s case, she said.

“I would say it speaks to a zealous attorney who sort of wants to make every possible point and do the best he or she can for her client,” Orlansky said. “The only time a good lawyer wouldn’t make that kind of a motion is where you’ve got a really good jury and there are a couple of breaks you didn’t expect. Then you might not bring the motion.

“The best you can say if you’re defending a criminal case is that the odds are always stacked against you.”

The system is designed to prevent jurors from coming into contact with information which might lead to an unfair hearing, said Palmer District Attorney Roman Kalytiak.

“Judges obviously cannot tell a reporter what to write or what not to write,” he wrote, in an email.

The interaction between prosecutors and the public also can vary depending on whether DA’s are elected or not. DA’s in Alaska are not elected, Kalytiak pointed out.

“In places where DAs are elected, you see more press statements and conferences,” he wrote. “Not so much here. Also, we (prosecutors) prefer to make our arguments to the jury, not try the case in the court of public opinion.”

Prosecutorial arguments continued in the Allison case Thursday morning. Allison is charged with manslaughter, second-degree murder by extreme indifference, and criminally negligent homicide in connection with the death of his 1-year-old daughter Jocelynn in 2008.

Contact Brian O’Connor at 352-2269 or brian.oconnor@frontiersman.com.