More questions from jurors in David Paul case

Law library books

Shelf of books in the Dimond Courthouse law library. Photo by Matt Miller/KTOO News

Judge, jury, and lawyers in the David Paul homicide trial were all puzzled on Friday by a factor in one of the charges that the Alaska Supreme Court says must be considered in determining a defendant’s conduct, but justices apparently have not yet defined the term for lower courts.

In deciding the charge of murder in the second degree against David Paul and whether his conduct was extremely indifferent to the value of human life, jurors were instructed to determine social utility of that conduct. That’s in addition to other factors like magnitude of risk, Paul’s apparent knowledge of the risk, and what precautions that he took to minimize that risk.

But what does social utility mean?

The jury in the Paul case sent out a note essentially asking that question late Friday afternoon. The question was considered at length by Judge Philip Pallenberg and attorneys in the case after the jury had already gone home for the weekend.

David Paul is on trial for the death of four-month old Rian Orr. The first full day of deliberations was Friday in Day 19 of the trial.

Judge Pallenberg said he was unable to find a definition or a comparable Alaska case in which that particular factor is important. However, he did find a law review article citing the example of someone who attempted to shoot a lion that was attacking another person, but he accidentally shot the victim instead. It could be argued that the shooter’s conduct had a potential benefit to another individual. Another possible example of social utility may include a critically ill family member who was taken to hospital by a drunk driver.

Public defender Eric Hedland believed it was an affirmative defense and that such a factor had a limited application where someone was accused of being reckless. He said it impossible to argue about social utility when the theory is that David Paul did not do anything.

Judge Pallenberg offered a hypothetical example without making a comment on the evidence. Perhaps, if Paul was going to feed the baby and dropped the baby by accident, then the jury could find that was an act that had social utility even though they thought it was reckless. He offered to craft a definition that would give the jury room to find some social utility if they found a sequence of events that involved caretaking for a baby.

Hedland said that it just makes murder two with extreme recklessness easier to prove than the simple recklessness of manslaughter.

Meanwhile, still under consideration is the earlier motion for judgment of acquittal on the second degree murder charge. Judge Pallenberg has taken that motion under advisement.

Assistant District Attorney Angie Kemp noted that if a jury comes back with a guilty verdict on the charge of murder in the second degree, but then comes back with no verdict on the lesser included charge of manslaughter and a judgment of acquittal is granted, then the state has no remedy on manslaughter.

Judge Pallenberg will meet with Hedland, Kemp, and assistant District Attorney Nick Polasky on a draft definition of social utility before giving it to the jury early on Monday morning.

Monday 11:30 a.m. update:

Another question came from the jury on Monday morning in the David Paul homicide trial. They were curious about the factors of extreme indifference as related to the charge of murder in the second degree murder.

After consulting with both the prosecution and defense in the case, Judge Philip Pallenberg sent back a long answer that essentially ended with an instruction that they should consider the defendant’s ‘culpable mental state (that was) present at the time that the defendant allegedly engaged in the conduct causing’ the injuries to the baby Rian Orr. That instruction seems to preclude consideration of any evidence in which Paul took the seizing baby and mother Jaki Orr to Juneau Urgent Care and then Bartlett Regional Hospital.

The jury also sent out a question late Friday on the first full day of deliberations about the term ‘social utility’. A crafted definition was sent back to the jury this morning.

The jury appears to be carefully considering all the factors and elements in the charge of murder in the second degree. Paul is also charged with manslaughter in connection with death of Rian Orr in August 2010.