Legislature(1995 - 1996)
03/20/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 370 LEGAL SERVICES PROVIDED AT PUBLIC EXPENSE
DEAN GUANELI, Assistant Attorney General, addressed a question
raised at a previous committee hearing on when and how indigent
people are granted public defender services. That question arose
in the context of several murder investigations, particularly in
the Anchorage area, where police were investigating a certain
person. In the middle of the investigation, before the suspect was
charged with a crime, the public defender took on the defense of
the suspect and told police not to speak to him. Several members
of the law enforcement community proposed changing the way public
defenders are allowed to appoint themselves to represent people
charged with criminal offenses. HB 370 is an attempt to provide a
more uniform process for appointing legal representation by
designating the judge to determine whether the person has adequate
funds to hire an attorney. If the police want to talk to a person
before that person is charged with a crime, the police can either
stop questioning the person, or they can ask the judge to appoint
an attorney at that point.
Number 444
SENATOR TAYLOR noted Section 3 not only prohibits the agency from
self appointing, but also removes the ability of law officers to
notify the court or agency of the need for representation. He
questioned why that ability should be removed from police officers.
MR. GUANELI stated under current law the question of whether a
person has a right to representation depends on a judicial
determination of whether the person is indigent. Second, this
situation often occurs in the middle of the night, and as a
practical matter, to require police officers to call the agency at
that time will not likely result in representation until the next
day at the arraignment.
SENATOR ADAMS questioned whether HB 370 violates art. 1, sec. 11 of
the Alaska Constitution, as well as Criminal Rule 5B.
MR. GUANELI replied the constitutional right to counsel has been
interpreted to attach when charges have been filed. HB 370
reflects that constitutional standard. Criminal Rule 5B provides
for the right to immediately communicate with an attorney or a
friend after arrest. That right is also contained in Alaska
statute. HB 370 does not deprive anyone of that right because it
does not prevent anyone from calling an attorney.
Number 398
SENATOR ADAMS commented the cost of finding and hiring an attorney
in rural Alaska is very high, especially when the Republican
Majority is trying to cut out Alaska Legal Services.
SENATOR TAYLOR referred to a memo written by the drafter, Jerry
Luckhaupt, to Representative Porter, indicating there are a few
unique pre-arraignment situations that the Supreme Court has
recognized as a critical stage at which point counsel would have to
be provided. One is a post-arrest line-up situation. The Supreme
Court has decided if the line-up is very close in time to when the
criminal event occurred, one would not be allowed counsel, because
of the exigent circumstances. If a line-up was not temporally
proximate to the event, the person would have to have counsel
appointed and available. That differs from the arraignment stage
which could be one or two days later.
MR. GUANELI agreed that is a valid point, and is another example of
a situation where, if the police want to undertake that procedure,
they would have to request a judge to assign an attorney. It's
similar to a situation when the police might want to take a
statement prior to an arraignment and the person refuses until
he/she has spoken to an attorney. The police have the choice of
either foregoing the procedure or asking a judge to make an
appointment.
SENATOR TAYLOR stated that was the reason for his original question
about removing that ability from police officers in Section 3.
MR. GUANELI referred to Section 2 and explained the police officer
would have to request the district attorney make application to a
judge for the appointment for a public defender.
SENATOR TAYLOR replied that in at least two of the communities he
represents, the police officer would have to contact the district
attorney via a long distance phone call, and the district attorney
might have to request a judge in a different town. Under current
conditions, the police officer could ask the local magistrate.
MR. GUANELI indicated from a logistical standpoint, he sees no
problem in allowing the police to request a local magistrate. The
main emphasis of HB 370 is that the determination of indigence be
judicial.
SENATOR TAYLOR stated it is the procedural aspect he is concerned
about. When the investigation has focussed on a particular
individual and the critical stages of the investigation is reached,
all of the decisions about whether or not counsel should be
appointed for the defendant are being made by the people
prosecuting the defendant. This places a very high ethical burden
upon the officer to make certain that critical evidence is being
obtained, while simultaneously protecting the individual's
constitutional right to representation.
MR. GUANELI felt that to be a legitimate point but repeated the
police have a choice and can either stop talking to the person, not
do a line-up, or get the person an attorney. If that procedure is
not followed, the police officer risks the ability to use evidence
that is driving the investigation.
SENATOR TAYLOR asked Representative Porter if he would object to
reinstating the words "law enforcement officers" back into Section
3(a).
REPRESENTATIVE PORTER did not object, and noted he drafted the bill
from an urban perspective.
Number 306
SENATOR ELLIS pointed out that the co-sponsor of HB 370 presented
the measure as a money saving device which followed the
recommendations of the Legislative Budget and Audit Committee, and
asked Representative Porter if he agreed with that representation.
REPRESENTATIVE PORTER replied he did and that is why the
legislation has joint sponsorship. A section of the bill requires
that the basis of the determination by the court of indigence be
put on record. The problem found by the Budget and Audit Committee
is that there is a differential application of the court rule on
indigence throughout the state. In some areas the appointment of
a public defender was automatic, regardless of qualifications, and
in other areas it is very difficult. The opinion of the auditors
was that there were more people being afforded public defenders
than should be. Putting the basis for the appointment on the
record would provide accountability.
SENATOR TAYLOR added an earlier provision in the bill required the
entire determination be placed on the record, now the bill only
requires the court to put the basis for the determination on the
record which eliminates recording the full findings and facts.
REPRESENTATIVE PORTER stated the court system was opposed to
recording the full determination because it would require the
equivalent of a full extra hearing.
SENATOR ELLIS asked if savings would result from fewer public
defenders being appointed, or from being appointed later in the
process.
REPRESENTATIVE PORTER estimated the number of public defenders
appointed when police are desiring an interrogation would not
change considerably. He hoped a more appropriate determination
would be made by the judge at the first formal appearance.
SENATOR ELLIS asked Representative Porter if he agrees with Mr.
Salemi's assessment that public defenders self appoint only in rare
instances.
REPRESENTATIVE PORTER stated from personal experience, he saw
public defenders self appoint often enough to be of concern, and
two officers he spoke with in Anchorage said the number of self
appointments has increased.
SENATOR ELLIS questioned whether Representative Porter was
concerned that if HB 370 is enacted, legal counsel for indigent
people at the time of interrogation might not be available.
REPRESENTATIVE PORTER answered the critical stages that appear
before the appearance in court where a prime suspect is entitled to
counsel are well documented and, for years, law enforcement has had
the ability to get an attorney or not proceed. If an attorney is
not available, police officers may not proceed. If they do, they
will lose whatever evidence they have gained as the result of that
action, as well as anything they subsequently determine because of
that evidence.
SENATOR ELLIS contended that by removing the law enforcement
officer's ability to notify a public defender the interrogation
comes to a halt, and confession cannot be obtained at the time the
suspect is under the most stress.
REPRESENTATIVE PORTER did not think that the suggestion for change
was that the police officer appoint, it is that the police officer
may ask the court to appoint, as the court is responsible for that
determination.
SENATOR TAYLOR surmised the police officers' frustration is caused
by the agency's aggressive style of self appointment and by the
fact that the public defender agency has self appointed to
represent a previous client on a second offense committed several
years later.
REPRESENTATIVE PORTER felt there was no doubt the public defender
has an adequate method of getting policy throughout his offices,
and if this bill becomes law, it would be known that they could not
represent a person merely on the basis that person had been
represented in the past.
Number 200
SENATOR ELLIS submitted that HB 370 is based on the assumption that
self appointment by the public defenders' office is a common
occurrence, despite testimony both ways. He asked the committee to
get an accurate number of those cases.
SENATOR TAYLOR moved to amend page 2, line 9, to reinstate the
words "the law enforcement officers concerned, upon commencement of
detention," thereby deleting "the agency or" only.
REPRESENTATIVE PORTER felt that language refers to more than just
advising of rights. He suggested changing page 2, line 4, to read,
"...when the prosecuting attorney or a law enforcement officer
requests the court...."
SENATOR TAYLOR modified the amendment to include on page 2, line 4,
the words, "or a law enforcement officer." SENATOR ADAMS asked
for clarification. SENATOR TAYLOR stated that change is both on
line 4 and on line 10. There being no objection, the motion
carried.
SENATOR ELLIS asked the Chairman to request the number of self
appointments from the Public Defenders' Agency. SENATOR TAYLOR
agreed to do so and announced the bill would be held until Friday.
SENATOR ADAMS asked if the sponsor recognizes that the only law
enforcement officers in rural Alaska are VPSOs. The sponsor said
yes.
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