Steve Marshall, seen here during a court hearing last year, is challenging his indictment based on language his attorney says is unconstitutional and biased the Grand Jurors in his case.
If the defense attorney for former Wrangell resident Steve Marshall has his way, his client might see freedom sooner rather than later.
Marshall, 52, was arrested on Wednesday, Dec. 7, 2011 at a residence in the Bloom Trailer Court after police responded to an argument between him and his girlfriend. He was indicted by a grand jury on a number of charges, including sexual assault, and is alleged to have raped, strangled and hit the victim, as well as threatening her with a machete, resulting in a hospitalization at Wrangell Medical Center.
Michael Heiser, Marshall’s Ketchikan-based attorney, filed a Motion To Dismiss and a supplemental motion last week in First District Court that is seeking to have the indictment against his client thrown out based on instructions given to the Grand Jurors.
Those instructions, Heiser contends, contained language that was unconstitutional and prejudicial to Marshall by directing them to return an indictment rather than giving them an option to not file charges against him.
The Grand Jury charge given to jurors is based on Alaska Criminal Rule 6(q) which directs, in part and with emphasis added, “First you have a duty to the government and the public to cause persons to answer for a felony when there are just grounds to charge such an offense,” and, “The grand jury shall find a true bill of indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.”
The language is being weighed against similar language used in an indictment against former Fairbanks hockey official Tara Leighton, who was charged with sex crimes against a minor, is currently back in the hands of prosecutors after a ruling that the state must re-indict her if the case is to go to trial.
In that case Judge Randy Olsen didn’t dismiss charges against Leighton, but ruled that the Fairbanks district attorney’s office must ask a different grand jury to re-indict her again if they want to retry her.
“Although (Marshall’s) Grand Jury Charge is different from that used in the Fairbanks court, the language is even stronger, using the word ‘shall,’ rather than the word ‘should’ found in the Fairbanks instruction,” Heiser notes. “It gives the grand jury even less discretion, and is therefore an even more egregious violation of Mr. Marshall’s constitutional right to a grand jury indictment.”
Citing the case of State v. Johnson, Heiser noted that the decision handed down in that case stated, “Accordingly, on a scale of discretion ‘may’ would be on one end of the scale, meaning absolute, unfettered discretion, without obligation. ‘Shall’ would be on the other end of the scale, signifying an absolute requirement to act in a specific way if the conditions are present.”
According to Heiser, the court found that the wording of such an instruction, using the phrase “shall,” was “without basis in history, the Alaska Constitution, and the federal grand jury practice,” and violates the state constitution.
Because the instructions in Johnson were determined to use the phrase “should,” rather than “shall,” the motion for dismissal was denied. Heiser said this is not the case in Marshall’s indictment.
“The unconstitutional ‘shall’ of Criminal Rule 6(q) was implemented in the instructions given to the grand jury. Therefore, the indictment must be dismissed because of the unconstitutional flaw in the Grand Jury Charge.”
Prosecutors in the case have declined to comment on this story.
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