FAIRBANKS—Superior Court Judge Paul Lyle heard oral arguments Wednesday afternoon on a key issue that has been percolating in the background of the month-long "Fairbanks Four" hearing: Should key alternate suspect Jason Wallace receive immunity from potential future prosecution?
Lyle said he will rule in the coming days. After hearing about 30 minutes of arguments, he indicated that under the "separation of powers" concept of government, he might be compelled to grant Alaska Attorney General Craig Richards’ request for immunity for Wallace.
Wallace has become a central figure in the lawsuit to exonerate the four men convicted in the beating death of teenager John Hartman 18 years ago on a Fairbanks street corner.
Three other witnesses have testified this month that they believe from second-hand information that Wallace either played a role or was the primary aggressor in the Hartman assault as part of a bout of random street violence.
The theory that Wallace and a group of his Lathrop High School classmates killed Hartman is the central part of the lawsuit brought by the four Howard Luke Academy students and alumni convicted and serving time for the killing — George Frese, Kevin Pease, Marvin Roberts and Eugene Vent.
Two weeks ago Lyle heard evidence directly from Wallace, excerpts of a videotaped deposition that consisted largely of Wallace invoking his Fifth Amendment protection against self-incrimination.
Last week, Adrienne Bachman, the state prosecutor who is working to uphold the 1999 convictions, announced that, “The attorney general forwarded a letter to the parties, the lawyers, that Mr. Wallace will be granted immunity for his important testimony in this case.”
According to Wednesday's arguments in court, it's not yet clear if Wallace will be granted immunity.
Attorney Jahna Lindemuth, who represents Frese and Roberts, filed a motion against granting immunity.
“We’re talking about the person who the evidence shows is the real culprit in the homicide of John Hartman,” she said. “The state’s motion, the original motion they made, makes it clear that the whole purpose of granting Jason Wallace immunity in this case is to cast doubt and rebut Jason Wallace’s incriminating statements," she said during Wednesday's arguments.
"The danger is the real perpetrator of the John Hartman murder has been immunized from it and cannot be brought to justice."
Bachman disputed the argument that the state has a specific plan for Wallace's testimony.
"The government has no idea what Mr. Wallace is going to testify to," she said. "Mr. Wallace could come clean and confirm what Mr. Holmes and Mr. Davison have to say, or Wallace could say, ‘Guess what, they set me up' or 'They did something else.' He could say a myriad of things.”
Lyle heard testimony against Wallace this month from Bill Holmes, Wallace's former drug-dealing partner who, like Wallace, is serving a long prison term for murders not related to the Hartman case that were committed in 2002.
Holmes testified that on Oct. 10, 1997, he was driving his car with classmates Wallace, Rashan Brown, Marquez Pennington and Shelmar Johnson. He testified the others got out to attack a random pedestrian on the street, and that when they got back they were all saying that Wallace stomped the victim. They learned later from news accounts that the person they attacked was Hartman, Holmes said.
Lyle also heard previously from Tom Boles, a Public Defender Agency investigator who testified that Wallace told him in 2003 that he was involved in the Hartman case. Scott Davison, a former high school classmate of Wallace's, testified that Wallace made a similar statement to him days after the assault in 1997.
In ruling on the immunity issue, Lyle is being asked to interpret Alaska's witness immunity law (AS 12.50.101). The law says in part that a court "shall issue" an order compelling a reluctant witness’s testimony and offering immunity if the attorney general requests it because "information may be necessary to the administration of criminal justice."
However, the law specifies that witness immunity applies specifically to "a criminal proceeding before or ancillary to a court or grand jury of this state."
Lindemuth, the attorney for Frese and Roberts, argued it is inappropriate to apply it in the exoneration lawsuit, which is technically a civil matter although it's often described as a criminal-civil hybrid.
Lyle indicated at the end of the hearing that while he hasn't decided on the interpretation of the specific wording of the law, he disagrees with the larger argument made by Lindemuth that he shouldn't grant immunity because it could protect a potential killer.
“I don’t understand why you think this court gets to make that decision in terms of whether a prosecution goes forward and whether immunity is granted,” he said. “Under the separation of powers, doesn’t that belong with the governor and his attorney general?” he said.
Police interrogation expert
Earlier on Wednesday, Lyle heard testimony from the third professional expert witness who the petitioners have called so far in their lawsuit seeking exoneration.
Gregg McCrary was named an expert witness on the subject of "police practices, criminal investigations and interview procedures." His testimony was offered to challenge one of the key pieces of evidence against Frese, Pease, Roberts and Vent — the confessions of Vent and Frese in their initial police interviews.
McCrary is a former FBI investigator who worked in federal law enforcement between 1969 and 1995. He now lives in Virginia and owns the consulting and training business Behavioral Criminality International.
McCrary read transcripts of the police statements and other material about the case in preparation for his testimony. He concluded the Fairbanks Police Department used interview techniques, such as lying about the evidence, that often yield unreliable results.
Vent in particular was subject to numerous such "false evidence ploys" during the three police interviews he underwent on the day he was arrested. Fairbanks police Detective Aaron Ring, who did the questioning, told Vent at least 10 times that Vent had left his footprints in Hartman's blood, McCrary said. No such footprints existed.
False evidence ploys are legal the United States, although not in other countries including the United Kingdom, McCrary said. He said he tells his students to avoid them. Police can lose credibility with their interview subjects if subjects catch them in the lie, he said. Additionally, some "suggestible" subjects may become confused and will go along with what the investigator says even if it's not the truth, he said.
McCrary was stopped short when asked whether he thought Vent's confession was "reliable." The reliability of a witness statement is ultimately for a judge or jury to decide, Lyle said.
McCrary is the second expert on police interrogation whose testimony Vent has offered in his 18-year legal struggle.
In his initial jury, Vent called psychologist and false confession expert Richard Leo to testify, but trial judge Ben Esch ruled Leo’s testimony was inadmissible on grounds that there wasn't enough quantitative evidence available about false confessions and that evaluating the credibility of a confession is the jury's job. The Alaska Court of Appeals affirmed Esch's ruling.
Lyle hasn't yet ruled on whether he will consider the testimony of McCrary or several other witnesses who prosecutors who have objected to. He has said several times that he wants to create a thorough public record in the case. He will rule on the admissibility of different witnesses after the end of the month-long hearing.
The hearing continues at 8:30 a.m. Thursday on the fifth floor of the Rabinowitz Courthouse. Polygraph expert David Raskin is expected to testify. A confidential hearing is scheduled for 2 p.m.
Contact outdoors editor Sam Friedman at 459-7545. Follow him on Twitter: @FDNMoutdoors.