Kevin W. PEASE, Petitioner,
STATE of Alaska, Respondent.
Before : CARPENETI, Chief Justice, EASTAUGH, FABE, and WINFREE, Justices, and MATTHEWS, Senior Justice.[*]
IT IS ORDERED:
The Petition for Hearing, filed on September 25, 2007 and granted on February 27, 2008, is DISMISSED as improvidently granted.
Entered by direction of the court.
EASTAUGH, Justice, dissenting.
WINFREE, Justice, dissenting.
CHRISTEN, Justice, not participating.
EASTAUGH, Justice, dissenting.
I respectfully dissent from today's order dismissing Kevin Pease's petition for hearing as improvidently granted. During its deliberations, the jury that found Pease guilty of two counts of murder and other serious felonies conducted an unauthorized experiment to test the eyewitness identification evidence that tied Pease to the crimes charged. When the experiment was revealed some years later, the superior court judge who had presided over Pease's criminal trial granted him a new trial. In my view, we must defer to the superior court's fact findings. The identification evidence was critical to Pease's convictions. The experiment was flawed. And there was at least a " reasonable possibility" it affected the outcome. We should therefore reverse the ruling of the court of appeals  and remand for reinstatement of the superior court order granting Pease a new trial.
FACTS AND PROCEEDINGS
Kevin Pease and three others (Marvin Roberts, Eugene Vent, and George Frese) were charged with the robbery and assault of Franklin Dayton and the separate robbery, sexual assault, and murder of a juvenile, J.H., all on October 11, 1997 in Fairbanks. After a change of venue, Pease was tried Before an Anchorage jury in the summer of 1999.
A prosecution witness critical to all of the charges against Pease was Arlo Olson. Olson testified at trial that while he was smoking outside a Fairbanks reception hall at around one o'clock in the morning, when only streetlights lit the attack scene, he saw Pease, Frese, Roberts, and Vent attack Dayton. He also testified that he had gotten " stoned" earlier that day, consumed alcohol that evening, and was " feeling a buzz" around the time of the attack. Although Olson did not approach Dayton after the attack, Olson testified that " [l]ooking down the street, I recognized [Dayton]" ; he also testified that he had known Frese and Vent " for a while" and " recognized them right off" and " recognized the car they were in." He told the jury he had seen the four men in the car outside the reception hall earlier that night. Olson's testimony tying Pease to the Dayton assault also linked Pease to the crimes against J.H. by placing the four assailants together the night of the attacks.
A police officer testified that he had measured the distance between the reception hall steps and the place where Dayton reported he was attacked as 550 feet.
A defense expert, Dr. Geoffrey Loftus, testified at trial about the difficulty of identifying people at significant distances. He told the jury that " a hundred to 200 feet is ... about the limit in terms of ... your ability to recognize a person, distinguish an individual's features that would allow you to recognize the person later on." This limit applies,
he said, even under " the best circumstances ... in which you had unlimited time, good lighting and ability to pay attention to the person and be in an optimal physiological state ... [including being] awake, alert, not ill, not drunk, not under the influence of any drugs and so on."
The Anchorage jury found Pease guilty of two counts of second-degree murder, one count of second-degree assault, and one count of first-degree robbery. Pease's conviction was affirmed by the court of appeals in 2002. 
In 2003 Pease sought post-conviction relief on the newly discovered ground his trial jury had conducted an unauthorized experiment during its deliberations. The experiment appeared to address the ability to identify persons at significant distances. Superior Court Judge Ben Esch, the same judge who had presided over Pease's criminal trial, was assigned Pease's post-conviction relief application. The superior court ordered that an evidentiary proceeding be conducted.
In 2004 Pease took depositions of nine jurors and of the bailiff who took the jury outside the court building when it conducted the alleged experiment. The depositions established that the entire jury left the court building with the bailiff and that one or two jurors walked down the street from the group while the remaining jurors watched. The jurors did not all describe the purpose of the experiment in the same way. At least one discussed ascertaining what the distances mentioned at trial looked like. Others talked about assessing whether they could recognize at a distance the jurors who had walked away. Some indicated that they were testing Olson's testimony in particular: one juror stated that " one of the most credible witnesses [the state] had was a gentleman who believed he saw one of the defendants, and all the way through [the defendants were] questioning it, that distance, can you see" ; another said the experiment " [w]as just to see what someone would look like at 500 feet away" because " one of the most critical two or three elements of the whole thing was-was [Olson's testimony]" ; a third said " part of the testimony was that an incident had happened at that distance from the wedding reception" and the jurors were making their own determination as to whether it was true that " it would be difficult to see accurately at that distance." Several jurors remembered that it was daylight, " really bright," or sunny outside when they made their observations. Most seemed to recall or assumed that the bailiff had given permission for the jury to go outside, and several seemed to think or assume the bailiff or even the trial judge had permitted the jury to go out to make its observations. The bailiff testified that he assumed he had permitted the one juror to walk down the street so long as he kept in sight, but testified he would have told the judge if the jurors had told the bailiff what they were doing. The bailiff remained nearby, and one juror recalled the bailiff watching them.
Pease also submitted an affidavit from an investigator who measured the distance from the place where the jurors had been standing during the experiment to the place where the juror or jurors who walked away stood; the ...