Prosecutors balk at Marshall dismissal claim

Prosecutors in the criminal case against Wrangell resident Steve Marshall have opposed a motion to dismiss his case based on his attorney’s argument that the indictment against him is unconstitutional.

Marshall’s attorney, Michael Heiser, filed a motion to dismiss a series of charges against his client in late September, contending the indictment contained language that was unconstitutional and prejudicial by directing them to return an indictment rather than giving them an option to not file charges against him.

The basis for Marshall’s motion to dismiss is his claim that Grand Jurors charge was based on Alaska Criminal Rule 6(q), which Heiser claims is unconstitutional.

Jean Seaton, the Sitka-based prosecutor in the case refutes that argument.

“Defendant claims that the indictment is invalid because the instructions to the grand jury are contrary to language in the Alaska Constitution and asks this court to dismiss the indictment,” Seaton states in her filing. “The court should decline to dismiss the indictment. The language at issue in the Alaska Constitution appears to refer to the number of grand jurors who must concur before an indictment “may” be returned. The sentence does not confer upon the grand jury the right to decline to indict when presented with sufficient evidence.”

Seaton’s filing also asks the court not to consider other lower court cases when making its decision whether to dismiss.

“This court would be ill-advised to rely upon orders of another superior court which appeared to make determinations based partly on the facts of particular grand jury cases. One of the orders was issued in 2007, but five years later Criminal Rule 6(q) has not been found to be unconstitutional,” the filing states.

Rule 6(q) deals with the consideration by a jury of the sufficiency of evidence in a criminal case in Alaska.

The rule states, in part, “When the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses … The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.”

Heiser, for his part, refutes those arguments in a reply to Seaton’s opposition.

“It should be noted that the Fairbanks court in State v. Johnson … found that Criminal Rule 6(q) is unconstitutional because it is ‘patently at odds with the provisions of the Alaska Constitution … and that such an interpretation is without basis in history, the Alaska Constitution, and the federal grand jury practice,’ Just because the Sitka grand jury charge was based on the language of Criminal Rule 6(q) does not make the indictment legal. The Sitka grand jury Instruction was unconstitutional,” Heiser states.

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.