The Kenai Superior Court judge presiding over the Jamie Petterson murder trial is expected to rule this morning on whether to declare a mistrial.
"I'm going to take the motion for a mistrial under advisement," said Judge Charles Cranston on Tuesday after assistant district attorney June Stein protested an alleged strategy move by the defense instructing a key witness to seek protection from self-incrimination under Fifth Amendment rights.
The witness, Jonathan Douglas, was the only passenger in the vehicle Erwin "Jamie" Petterson Jr. was driving on Oct. 12, 2002, when he collided head-on with a Jeep Cherokee, killing its two occupants, Robert and Donna Weiser, on the Seward Highway.
According to Alaska State Troopers, Petterson and Douglas were watching an in-dash DVD movie in Petterson's northbound Ford pickup and the vehicle crossed the centerline into oncoming traffic, hitting the Weiser's southbound vehicle.
The Jeep burst into flames, and passersby were able to pull Donna Weiser's body from the wreck, but not Robert Weiser's. Both died at the scene.
Petterson and Douglas were injured. Their injuries were not life-threatening.
In opening arguments in the case, Stein told jurors that Douglas called his ex-wife from the hospital and told her, "We were zoned out. We were watching a DVD."
Since then, during the investigation into the incident, Douglas reportedly has testified to the contrary, saying he never told his ex-wife Marty Zoda anything of the sort.
Zoda reportedly told investigators that Douglas said, "He was watching the DVD."
Zoda's husband, Christopher Zoda, reportedly told investigators that Marty mouthed to him while talking to Douglas on the phone that "They were watching the DVD."
Neither of the Zodas nor Douglas has taken the witness stand during the jury trial.
The mistrial question arose Tuesday when the court was told of Douglas' plan to claim protection under the Fifth Amendment.
Douglas is being represented in the civil trial involving the case by Chuck Robinson, who also is Petterson's defense attorney in the criminal trial.
Stein raised a conflict-of-interest question asserting that Robinson is working in the best interest of Douglas while Robinson also is working in the best interest of Petterson.
Robinson contended that Douglas was warned by troopers that if he lied, he would face 12 years in prison for perjury, hindering prosecution and evidence tampering, and he was advised to not testify so he would not incriminate himself.
Stein said Robinson knew for 18 months that Douglas was going to be called as "a pivotal witness in the state's case."
"It's clear the state is being disadvantaged and prejudiced intentionally," Stein said.
"The court is as disadvantaged as the state at getting this information regarding this witness in mid-trial, near the end of the state's case," she said.
"It was done clearly to sabotage the state's case," Stein said.
Robinson responded that he did not receive the state's witness list until July 19, and that although Douglas' name was on it, the state has previously listed witnesses that were not called to testify.
Stein said an application could be made with the state's attorney general to make Douglas immune from prosecution in exchange for his testimony, but the application and answering the conflict-of-interest issues would take time.
She repeated her request for a mistrial, and although Cranston said he was hesitant to declare one and did not believe the issues at-hand were insurmountable, he would consider the motion and announce his decision at 8:30 a.m. today.
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