Legislature(2019 - 2020)BELTZ 105 (TSBldg)
03/11/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB15 | |
| SB55 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 15 | TELECONFERENCED | |
| *+ | SB 55 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 15-GRAND JURY BY PETITION; DISCLOSURE
1:31:18 PM
CHAIR HUGHES announced that the first order of business would be
SENATE BILL NO. 15, "An Act relating to a petition to convene a
grand jury; and repealing and reenacting Rule 16(b)(3), Alaska
Rules of Criminal Procedure, concerning a prosecuting attorney's
duty to disclose favorable information to a defendant in a
criminal proceeding."
1:32:15 PM
SENATOR MICCICHE testifying as sponsor, paraphrased from the
sponsor statement, which read as follows:
During this time in Alaska's history as we work to
revise statute to ensure the public safety of Alaskans
by holding criminals accountable, it may seem like an
interesting effort to also ensure justice and fairness
for those that may have not had an adequate legal
process to prove themselves innocent.
Senate Bill 15 provides two processes to ensure that
justice is served.
Senate Bill 15 enacts a process by which a grand jury
investigation is activated by the public through a
well-defined process. Although Alaska's Constitution
under Article 1, Section 8 states "The power of grand
juries to investigate and make recommendations
concerning public welfare or safety shall never be
suspended," a process does not currently exist for the
public to initiate the process.
Senate Bill 15 also repeals and reenacts Rule 16(b)(3)
concerning a prosecuting attorney's duty to disclose
favorable information (exculpatory evidence) to a
defendant in a criminal proceeding. Perhaps the most
famous case of the withholding of exculpatory evidence
was during the prosecution of Alaska's US Senator Ted
Stevens, where the Senator would have likely been
found not guilty had the evidence been presented.
Senate Bill 15 will provide greater protection to the
accused to ensure that they receive a fair trial and
that exculpatory evidence information will become
available when applicable to the outcome of the
proceedings.
SENATOR MICCICHE also remarked that it is important to confine
the bill to cases in the criminal justice system for those
parties that believe they have been unfairly convicted. This
bill does not embrace a wide-open process, he said. Other states
that have a similar process include Oklahoma, Nevada, North
Dakota, Kansas and Nebraska.
The bill would bolster and strengthen the standards for
disclosure of exculpatory evidence in Alaska. It would provide
judges with a broad range of remedies for non-compliance. The
U.S. Supreme Court in Brady v. Maryland held that the
prosecution has a constitutional obligation to disclose to the
defense any and all exculpatory evidence. However, Brady
violations, as they are known, are common in criminal
prosecutions. It can lead to reversal of decisions, but often
not until the defendant has suffered a great deal of harm. In
2008, the case against U.S. Senator Ted Stevens led to a
conviction because evidence was withheld [and the case was later
set aside by a federal judge]. It is important for people to
know wrongful convictions can happen to anyone at any level, he
said. A single wrongful conviction due to unclear guidance
represents a miscarriage of justice and is entirely preventable,
he concluded.
1:35:14 PM
EDRA MORLEDGE, Staff, Senator Peter Micciche, Alaska State
Legislature, Juneau, provided the sectional analysis for SB 15.
1:35:32 PM
MS. MORLEDGE read Section 1.
Section 1: Adds new section AS 12.40.120 Grand Jury
(a) allowing an individual to petition to convene a
grand jury for the purpose of investigating a matter
that could result in an indictment (Page 1, lines 6-8)
(b) Establishes the individual must file the petition
in the appropriate judicial district. (Page 1, lines
9-12)
(c) Establishes that within 4 days the judge shall
enter an order of determination of whether the subject
of the petition can be reasonably investigated and may
lead to information that would lead to an indictment
(Page 1, line 13 Page 2, line 3)
(d) Establishes that the judge must issue a written
order if the petition is deficient, allows the
petitioner to file an amended petition within 2 days,
and requires the judge 2 additional days to determine
if it meets the requirements (Page 2, lines 4-9)
(e) States the petitioner may not circulate the
petition without a court order (Page 2, lines 10-11)
(f) Establishes the procedure for the petitioner to
collect the required signatures and file the completed
petition with the Division of Elections. It also
requires the division to certify the signatures and
submit the petition to the clerk of court, who must
then submit it to the presiding superior court judge
(Page 2, lines 12-20)
(g) Allows an individual who signed a petition to
remove their name any time before it is certified by
elections
(Page 2, lines 21-24)
(h) Requires the presiding superior court judge to
convene a grand jury within 30 calendar days after the
certification of the petition is received by the clerk
of court (Page 2, lines 25-28)
(i) Provides for penalties for offering anything of
value or making false [statements] to signatories of
the petition (Page 2, lines 29 Page 3, line 4)
(j) Clarifies the definition of "knowingly" (Page 3,
line 5)
1:37:57 PM
MS. MORLEDGE read Section 2.
Section 2: Amends the Alaska Rules of Criminal
Procedure
Repeals and reenacts Rule 16(b)(3) Prosecuting
Attorney's Duty to Disclose Favorable Information to
Defense Counsel
(A) (Beginning on Page 3, line 10, through Page 4,
line 5) Requires the prosecuting attorney to disclose
to the defense counsel any material or information
that tends to negate the guilt of the accused. Within
20 days after the written notice of demand from the
defense, the prosecuting attorney must disclose the
following:
(i) all information favorable to the accused in their
possession, or in the possession of a branch of law
enforcement
(ii) evidence disproving the identity of the accused
as the perpetrator of an offense
(iii) evidence tending to disprove an element of an
offense
(iv) evidence of varying testimony of a witness
(v) evidence that a witness has a prior criminal
history
(vi) evidence that a witness has issues with
credibility
(vii) evidence that a witness may have an ulterior
motive, bias, compensation or information tending to
devalue their testimony
(B) Addresses materials not in the prosecuting
attorney's possession, and requires they make a good
faith effort identify the material and make it
available to the defense (Page 4, lines 6-11)
(C) Requires the prosecuting attorney to continue to
disclose materials to the defense before and during
the trial (Page 4, lines 12-18)
(D) Allows the prosecuting attorney to request an in-
camera review of any evidence demanded by the defense
counsel and requires the court to issue a written
order granting or denying the defense counsel's
request. The court must ascertain whether the
requested review is expected to cause substantial and
identifiable harm to others that outweighs the right
of the accused to access the materials, whether access
would have a detrimental effect on the proceeding, or
whether the materials are personal notes and
observations. (Page 4, lines 19 Page 5, line 2)
(E) Requires the date of disclosure of materials may
not be less than 30 days before a trial (Page 5, lines
3-8)
(F-H) Procedures for dealing with noncompliance of
this rule and establishes remedies, including
sanctions (Page 5, line 9 Page 6, line 4)
1:40:40 PM
MS. MORLEDGE read Section 3.
Section 3: Conditional Effect
Section 2 of this Act takes effect only by a two-
thirds vote of each body of the legislature. (Page 6,
lines 7-9)
? 15. Rule-Making Power The supreme court shall make
and promulgate rules governing the administration of
all courts. It shall make and promulgate rules
governing practice and procedure in civil and criminal
cases in all courts. These rules may be changed by the
legislature by two-thirds vote of the members elected
to each house
1:41:00 PM
CHAIR HUGHES recalled that the sponsor mentioned two federal
cases: the Brady case and the late U.S. Senator Ted Stevens
case. She noted that both cases violated the federal rules of
discovery. She asked for further clarification on whether the
same problems exist in state law.
SENATOR MICCICHE responded that exculpatory evidence exclusions
resulted in the prosecution and conviction of the late U.S.
Senator Ted Stevens. He highlighted that what happened in those
cases is the issue, not specifically whether it was a state or
federal matter. Adequate evidence that likely would have cleared
Senator Stevens was not allowed or presented, which led to his
wrongful conviction. Other cases exist where adequate evidence
that might clear the defendant is often not shared during the
prosecution process, he said.
CHAIR HUGHES recalled that six states have similar laws. She
asked whether any evidence indicates that the empaneled grand
juries in those states ever righted a failure. She highlighted
that she did not find any recent cases in these states where the
normal grand jury process had failed.
MS. MORLEDGE responded that her overview did not go into the
specifics, but she has reviewed several recent Kansas cases.
1:44:13 PM
SENATOR KIEHL asked whether the person being indicted would
receive a notice of the petition.
MS. MORLEDGE answered that the [Alaska Court System]
notification process is not set out in these procedures nor was
she familiar with the court's notification for indictees. She
deferred to the Alaska Court System to respond.
1:45:00 PM
SENATOR MICCICHE explained the genesis of SB 15. He said that it
stems from a certain unfair conviction case in his district.
Although the [U.S.] Constitution guarantees the public the right
to a grand jury investigation, it may not provide the trigger or
mechanism for it. Although he acknowledged that SB 15 might not
be the ideal vehicle to address the problem, he envisioned that
it would provide an important process, one that would very
rarely be used, if at all. It would provide a mechanism [for a
grand jury to investigate] situations where the defendants felt
the process led to unfair convictions. Further, it is important
to consider whether [the statutes are appropriate] and if they
could be improved upon.
1:46:46 PM
SENATOR KIEHL said he appreciates the sponsor's openness. He
questioned who would prosecute these cases. Presumably, the
district attorney decided not to bring an indictment before the
grand jury, he said. Although he understands that SB 15 would
provide an individual the right to trigger a grand jury
investigation, he was uncertain how that process would work, he
said.
SENATOR MICCICHE responded that would be a good question if it
pertained to a grand jury investigation requesting an
indictment. However, in this instance the party could request
additional defense if the processes used that resulted in a
conviction were inadequate to provide defense for the defendant.
For example, Mr. David Haeg, who would be testifying later
today, should have been allowed a more open evaluation and
process in his case. He characterized the case as unique.
1:48:45 PM
SENATOR SHOWER expressed concern that SB 15 might be too broad.
For example, it might allow parties grounds or an opportunity to
petition to indict oil executives on climate change. Although he
said his example is facetious, it illustrates the potential for
abuse. He referred to Section 1 of SB 15. He asked whether the
decision to reject a petition is in the purview of the court or
if a judge's authority would be limited to whether the
requirements were met to convene a grand jury.
MS. MORLEDGE related her understanding that it would be within
the judge's purview to review an application to ensure that it
met the requirements, but not to determine the outcome. In
further response to Senator Shower, she affirmed that the court
cannot make a final determination but could only review the
application.
SENATOR MICCICHE offered his belief that a judge would have the
authority to determine any deficiency in the approach used in a
case. He referred to subsection (d). He said that there are many
reasons an application could be found deficient or insufficient.
SENATOR SHOWER asked whether the grand jury would move forward
with an investigation if the requirements were met.
SENATOR MICCICHE agreed that this bill would ask the court to
reevaluate a prior finding used to convict someone and provide
for a reasonable petition in instances in which the party has
exhausted other avenues to appeal a decision.
1:52:23 PM
CHAIR HUGHES interpreted this provision to mean that a party
would have one chance to submit an application. She did not see
any language in the bill that would allow an applicant to keep
petitioning to convene a grand jury. Ultimately this means that
the judge would have the authority to deny a second application,
she said.
1:52:59 PM
SENATOR SHOWER turned to page 4 to the court rule amendment
under Court Rule 16(b)(3)(B), which read [original punctuation
provided]:
If material or information requested by defense
counsel is not in the possession, custody, or control
of the prosecuting attorney, the prosecuting attorney
shall make a diligent, good faith effort to ascertain
the existence of the requested material or information
and make the material or information available for
discovery where it exists.
He asked how a diligent, good faith effort would be defined or
how to ascertain if someone had resisted [providing the
requested material].
SENATOR MICCICHE deferred to the Department of Law to answer. He
surmised that "good faith effort" seems to have been defined and
cases have set precedent, but he was unsure how it would be
evaluated.
1:54:14 PM
CHAIR HUGHES related her understanding that Criminal Rule 16
already requires the prosecution to turn over all exculpatory
evidence to the defense. She asked whether any of the items
listed in Section 2 are not already covered in the rule.
1:54:59 PM
At-ease.
1:55:28 PM
CHAIR HUGHES reconvened the meeting.
1:55:55 PM
MS. MORLEDGE added that currently Court Rule 16(b)(3)(B) reads,
"The prosecuting attorney shall disclose to defense counsel any
material or information within the prosecuting attorney's
possession or control that tends to negate the guilt of the
accused as to the offense or would tend to reduce the accused's
punishment therefor."
MS. MORLEDGE explained that SB 15 specifically added the types
of information to bolster and strengthen the existing rules. The
penalty for nondisclosure or noncompliance are sanctions listed
in subparagraph (D) of the court rule. She referred to
[subparagraph (G)] to a list of other things that can be
disclosed:
(G) Remedies. In addition to sanctions imposed under
(e) of this rule, if the court finds that prosecuting
attorney has failed to comply with (b)(3)(A) or
(b)(3)(B) of this rule, the court may order
(i) postponement or adjournment of the
proceedings;
(ii) exclusion or limitation of testimony or
evidence;
(iii) a new trial;
(iv) dismissal with or without prejudice; or
(v) any other remedy determined appropriate
by the court.
1:57:25 PM
SENATOR KIEHL recalled the sponsor highlighted using a grand
jury to clear a person's name, but the bill only listed things
that would result in ah indictment. He asked for clarification
on whether this bill would "clear" a person's name rather than
to bring the person up on charges.
SENATOR MICCICHE said he envisioned an indictment would bring
people together to clear a person's name or reduce the findings.
He related a scenario in which someone was subject to criminal
proceedings, laced with technical obstructions for the
individual. This bill would allow the person to prove the case
in a different way. In this specific case, he did not believe
Mr. Haeg was given an adequate opportunity to lay out his case
in the manner that best reflected it.
SENATOR MICCICHE said the aforementioned case is the only one he
is aware of. After reviewing all the documents in the case, he
concluded that something is amiss. He highlighted that this is
the type of case that would warrant an application to initiate a
grand jury investigation. He envisioned that the grand jury
investigation process would allow {Mr. Haeg] to have an
unobstructed "day in court." He surmised that [the grand jury
could identify] any irregularities that may have been difficult
to bring out in a court. The process often is controlled by what
and when evidence and materials can be presented, he said.
SENATOR MICCICHE maintained his belief that this avenue would
rarely be used. In fact, after visiting some correctional
facilities, he found inmates would rarely [admit] their guilt
and often professed their innocence. However, he still believes
that in some cases things do not go right, he said. Those
parties should have an avenue to request an investigation, a
careful review of the proceedings, to identify any
irregularities that should have been considered during the
prosecution that would result in the cases being reversed.
2:00:42 PM
SENATOR KIEHL said the sponsor's explanation helped him
understand the rationale for the bill although he still has
questions on an indictment after a court process.
SENATOR MICCICHE highlighted that these issues are important
ones in the criminal justice system. He welcomed a team approach
to hone the bill to provide an extremely narrow scope. He was
unsure of how often this process would be used, but those
individuals should have justice served. He characterized the
bill as an unusual one that uses an unusual approach to solve
the issue.
2:02:27 PM
CHAIR HUGHES remarked that this would likely open up "a can of
worms." She expressed concern of how it might be used. She
recalled the Kobach case in Kansas [related to voter fraud] that
did not result in an indictment.
SENATOR MICCICHE argued that he did not see the correlation
between the bill and cases of the type mentioned. He said he
sees it quite differently. He reiterated his desire to ensure
that the bill is very narrow in scope to only pinpoint and apply
to very specific cases. He recognized that it presents a
challenge to ensure that justice occurs while still maintaining
a process to address cases with irregularities.
2:04:21 PM
DAVID HAEG, representing himself, Soldotna, said that the
legislature does not have the authority to consider the validity
of convictions, which is under the purview of the judicial
system. However, he offered his belief that the legislature and
grand juries could investigate what happened in cases like his
to ensure that these [unfair convictions] never happen again. He
asked members to read, "The Investigative Grand Jury in Alaska"
[February 1987 by the Alaska Judicial Council, Jay A.
Rabinowitz, Chairman]. He said the report is a thorough report
requested by the Alaska State Senate that laid out the duties
and obligations of the grand jury in Alaska. He interpreted the
findings in the report as repeatedly indicating that grand
juries are not necessary in order to hear from the district
attorneys, the prosecutors, or to indict individuals. Instead,
the drafters of the Constitution of the State of Alaska at the
Alaska Constitutional Convention, "over and over again said 'we
have to have a grand jury, sitting there empaneled' in the rare
occasion it needs to investigate government officials of
wrongdoing."
2:07:24 PM
MR. HAEG characterized the wrongdoing by government officials in
his case as phenomenal. On January 28-29, 2019, an evidentiary
hearing was held, and it was shown that evidence and sworn
testimony was never refuted by the State of Alaska. He contended
that evidence presented showed that the prosecutor in his case,
District Attorney Scott Leaders, falsified a map to convict him.
However, he never provided that map prior to trial as required.
Worse yet, in a recording, Scott Leaders, [a Fish and Wildlife
Trooper, Brett Gibbens] a state witness, discussed that the map
used to convict him was falsified. Although this recording was
requested before the trial, it was never provided to him or his
attorney. He attested that this means his conviction was
invalid. For fifteen years, he and his family have suffered
agony [due to the 2004 case]. He offered his belief that his
case was manufactured by state officials, he said.
He further contended that the sole investigator for judicial
misconduct, Marla Greenstein [Executive Director, Alaska
Commission on Judicial Conduct], falsified an official
investigation in order to clear the judge in his trial [District
Court Judge Margaret Murphy] of alleged misconduct. He contended
that the complaint indicated that the judge was chauffeured by
the main witness against him [Alaska Wildlife Trooper Brett
Gibbens]. Secondly, the complaint alleged that the judge removed
evidence from the court record prior to the jury deliberations
that would have cleared him, he said.
MR. HAEG expressed concern that all complaints against judges
are handled by Marla Greenstein, who may be falsifying the
information to protect the judges. He calculated the potential
number of cases she has handled in the last 30 years and
concluded that the potential exists that a number of judges in
Alaska are corrupt. He expressed gratitude to Senator Micciche
for wanting to illuminate his case. The most important function
of a grand jury is to investigate and issue a report to keep the
public informed. He offered his belief that Ms. Greenstein needs
to be fired and "run out of the state on a pole."
CHAIR HUGHES interrupted and asked him to direct his attention
on the bill.
2:11:07 PM
MR. HAEG said it is important to have a trigger mechanism to
initiate a grand jury investigation. He said that the
Constitution of the State of Alaska provides that individuals
can petition for one. However, when he wanted a grand jury, the
petition was not allowed. He acknowledged that there was a prior
grand jury investigation in his [initial] case. During the
proceeding, one of the jurors started presenting evidence to
other grand jurors, but Scott Leaders "shut him down." He
paraphrased the current statute indicates that if a grand juror
knows or has reason to believe a crime has been committed, he
shall inform the other grand jurors of his belief and those
grand jurors shall investigate. He said this statute is in place
to allow the public to examine a case and not have information
suppressed.
2:13:53 PM
CHAIR HUGHES asked Mr. Henderson, Department of Law, to
interpret whether the grand jury adequately meets the
requirements in the Constitution of the State of Alaska.
ROBERT HENDERSON, Assistant Attorney General, Criminal Division,
Central Office, Department of Law, Anchorage, answered yes. He
explained that the Constitution of the State of Alaska
contemplates the grand jury serving two separate functions.
First, the grand jury operates as the charging body for all
criminal felonious acts. He said that no felony case can move
forward absent an indictment. Second, the grand jury also
functions as an investigative grand jury, which is a very rarely
used mechanism. In fact, it is used less and less as time goes
on because it uses a very procedurally complex and archaic
system. He recalled two big investigative grand juries that have
been convened in Alaska. In 1985, a Fairbanks grand jury
recommended that the Alaska Senate return articles of
impeachment against sitting Governor Bill Sheffield. In 1989, an
Anchorage grand jury recommended changes to certain sex offense
statutes following an allegation that a teacher in Anchorage was
having sexual relations with a student. That case was commonly
known as the "Satch" Carlson case. He said it is important to
keep those cases in mind because an investigative grand jury
returns a report that makes recommendations, but it is not a
charging document or indictment. An indictment allows
prosecutors to move forward with felony criminal charges.
However, a grand jury report would only recommend certain
changes. These reports remain confidential by law under Criminal
Rule 6.1 to avoid the issue of people being defamed without
adequate notice or an ability to rebut. The report subsequently
goes before a judge and the grand jury is represented by a
prosecutor. In fact, a grand jury cannot function without one
being present. The judge then determines whether the report
should become public. He emphasized the fact that a grand jury
can only function through a prosecutor is important to
recognize.
2:18:02 PM
MR. HENDERSON clarified that the grand jury is the charging
authority for felony conduct, not the prosecutors, who serve as
legal advisors to the grand jury. The prosecutors describe the
law and what evidence the grand jury can consider. He explained
that evidence must be admissible unless an exception applies.
MR. HENDERSON highlighted one concern the Department of Law has
with SB 15 is that it would create a new mechanism to convene a
grand jury. That mechanism may actually conflict with a
prosecutor's ethical responsibilities, he said. It may interfere
with effective law enforcement because as the bill is written,
it says that the grand jury should be convened if it would
warrant a true bill of indictment. He interpreted that to mean
an allegation of felony conduct. He cautioned that if a private
citizen can file a petition to convene a grand jury, it could
have the potential to interfere with ongoing pending criminal
investigations. Unfortunately, criminal investigations take
time, he said. However, convening a grand jury to investigate
the same thing that law enforcement is already investigating
could impede an ongoing criminal investigation.
2:19:52 PM
MR. HENDERSON said prosecutors screen cases to ensure the cases
are based on admissible evidence, have sufficient probable
cause, and to ensure the case will not conflict with other
pending legislation. He elaborated. As previously mentioned, a
grand jury can only return a true bill if admissible evidence is
presented that would warrant an indictment. In terms of
sufficiency of evidence, a prosecutor is under an ethical
responsibility to only proceed with cases that he/she believes
are cases in which probable cause exists. If not, prosecutors
cannot ethically move forward on the cases, he said. In terms of
conflict with other pending litigation, he described a scenario
in which a pending criminal case, a pending appeal to the
appellate courts, or a pending post-conviction release alleges
that an individual's conviction was unjustly obtained. He said
if one of those processes was occurring, the prosecutor may
determine the forum in pending cases
CHAIR HUGHES interrupted.
2:21:44 PM
SENATOR SHOWER recalled the bill sponsor considered SB 15 "as a
recourse" in case an issue or a disagreement arose as to the
reason that a grand jury was not being convened. He understood
that part of the answer is that the screening process includes
parallel efforts. He asked what recourse an individual would
have if a decision was made that not enough evidence existed to
move forward. He pointed out that the Constitution of the State
of Alaska provides that individuals can request a grand jury.
MR. HENDERSON explained the reason is because other processes
are in place to address the concern and the grand jury acts as a
body, not individually. The grand jury must have a quorum to
meet and a majority of the grand jury must be present to move
forward. No single individual can impose his/her judgment on the
will of the entire grand jury.
2:24:22 PM
SENATOR SHOWER deferred to the sponsor.
2:24:33 PM
SENATOR MICCICHE said that sometimes items are used to help
convict an individual, but the [defendant] does not have any
avenue to challenge those issues. The prosecutor acts on
evidence presented by individuals who are sometimes imperfect,
using information that can technically or in [Mr. Haeg's] case,
be geographically imperfect, but currently [that information]
cannot be used to challenge the case afterwards. It seemed to
him that people should have the right to a check and balance in
the system, via the grand jury, to evaluate the evidence. The
Constitution of the State of Alaska seems to support it, but it
lacks the trigger to initiate the grand jury investigation, he
said. He acknowledged that Mr. Henderson's explanation would be
true in most cases.
2:26:52 PM
MR. HENDERSON said he would direct the person [who feels
unjustly convicted] to apply for post-conviction relief. He
explained that mechanism provides the most appropriate forum to
handle attacks on someone's underlying conviction. He referred
to Criminal Rule 35.1. Specifically, Criminal Rule 35.1(a)(1)
relates to an underlying conviction that was obtained in
violation of the U.S. Constitution or the Constitution of the
State of Alaska. It goes through several other grounds to seek
post-conviction relief. He said that if a party believes that
he/she was unfairly convicted and has been unsuccessful on
appeal, the true remedy would be an application for post-
conviction relief.
CHAIR HUGHES referred to Section 8 of the Constitution of the
State of Alaska. She read the last sentence, "The power of grand
juries to investigate and make recommendations concerning the
public welfare or safety shall never be suspended." She
interpreted the language to mean that a person cannot directly
initiate a grand jury investigation. She asked who had initiated
the grand jury investigation for the two cases previously
mentioned. She related her understanding that the attorney
general's office had initiated the investigations.
MR. HENDERSON answered that is correct.
CHAIR HUGHES said the public elects the governor, who appoints
the attorney general, who is then confirmed by the legislature.
She surmised this would provide an indirect way to involve the
public in bringing forth any investigations. She asked whether
it would be possible for someone like Mr. Haeg, who feels that
justice has not been served, to approach the next administration
and ask for a review.
MR. HENDERSON agreed a subsequent prosecutor or attorney general
could review Mr. Haeg's case and make a different determination
on the case.
2:30:02 PM
SENATOR REINBOLD asked for further clarification on ethical
standards or conduct review if a prosecutor were to falsify
information.
MR. HENDERSON said all prosecutors have an ethical obligation to
provide the defense with exculpatory evidence or evidence that
would tend to negate the guilt of the accused or reduce that
punishment.
SENATOR REINBOLD said that Mr. Haeg alleged that someone
falsified data, so it seems like a new prosecutor could be
assigned.
MR. HENDERSON said it would be unethical for any attorney,
including a prosecutor, to suborn perjury by intentionally
soliciting false information.
2:32:07 PM
CHAIR HUGHES turned to Section 2 of SB 15. She asked whether
Alaska has rules to protect Alaskans from abuses such as ones
that occurred with the late U.S. Senator Ted Stevens.
MR. HENDERSON answered that the rules of discovery are defined
by Criminal Rule 16. However, the federal rules of procedure and
the state rules are very different. Still, the constitutional
obligations of all prosecutors to disclose exculpatory evidence
are the same. They must disclose any exculpatory evidence that
is material to the defendant and his/her defense. He explained
that exculpatory evidence is hyper-technical, but a substantial
amount of case law defines it.
2:33:30 PM
CHAIR HUGHES turned to the list of evidence Ms. Morledge read
earlier. She asked whether prosecutors currently are not
disclosing any of these items.
MR. HENDERSON prefaced his answer by describing the information
on information the state already provides. Under the state rules
of discovery, in all cases, whether requested by the defendant,
the state must provide the names and addresses of persons who
have relevant information, any written or recorded statements of
any witness, and the summary of any statements collected during
the course of the investigation. They must also provide all
statements of the accused, including written, summary, or
recorded, all statements of a co-defendant.
He said that all evidence that used at trial must be provided or
allowed to be inspected by the defense, including photographs.
The prosecution must provide all records of criminal
convictions, all expert reports, and all information related to
any electronic surveillance, including search warrants and wire
taps, regardless of whether they are requested. He characterized
it as "automatic discovery". In addition, the prosecution must
provide anything the defense thinks would be helpful or if they
know it exists. The defense can request the court issue certain
processes of subpoena for them to collect.
MR. HENDERSON clarified that when speaking about ethical and
constitutional obligations of a prosecutor to provide any
exculpatory evidence, he wanted to point out that the U.S.
Supreme Court has been clear to highlight it means exculpatory
evidence that is material to the accused or to the case. After
reviewing the items listed in Section 2 of the bill, he offered
his belief that materiality is what might be missing.
He referred to page 3, line 23, and said that [Rule 16(b)(3)(A)]
(ii) and (iii) are clearly exculpatory evidence that would be
provided.
(ii) evidence disproving the identity of the accused
as the perpetrator of an offense at issue;
(iii) evidence tending to disprove an element of an
offense at issue;
MR. HENDERSON said other information may be provided if it is
material to the accused or the defense. He referred to page 3,
line 30, to sub-subparagraph (v), which read, "(v) evidence that
a witness has a prior criminal history;". He said that although
criminal history could be favorable and material to a defendant,
it may not always be material. For example, an eyewitness to a
vehicle theft who had previously been investigated for domestic
violence but was not convicted might not be favorable to the
accused. However, if the [eyewitness] had been convicted of
domestic violence, that conviction would be provided under the
existing rule, he said.
2:38:02 PM
CHAIR HUGHES directed attention to page 3, line 17 of SB 15 that
requires prosecutors to provide the information within 20 days.
She further asked whether the 30-day rule would cause trial
delays.
MR. HENDERSON answered that both timeframes listed in SB 15
would be difficult to meet given the department's current
staffing levels, although providing information 30 days prior to
trial would be easier. Currently, the department makes a good
faith effort to provide discovery in cases as soon as possible.
The first court status, or pretrial hearing falls about 30 days
after arraignment, which is typically when the parties meet and
discuss discovery, he said.
2:39:50 PM
SENATOR SHOWER requested answers to three questions: first,
clarification on the immunity of prosecutors given the alleged
misconduct by prosecutors; second, who can bring charges of
alleged wrongdoing in cases; and third, who would investigate
any allegations of these wrongdoings.
CHAIR HUGHES asked that questions be provided to the committee
in written form [and responses be submitted to the committee].
2:40:40 PM
SENATOR MICCICHE said that he brought this bill forward because
he does not believe checks and balances exist for some extremely
rare criminal cases, although SB 15 was not confined to one
case. He characterized the court system process as a circular
one that currently lacks a process to provide an independent
review of [wrongful conviction] cases.
2:42:13 PM
CHAIR HUGHES opened public testimony on SB 15.
2:42:31 PM
JAMES PRICE, representing himself, Nikiski, stated his support
for SB 15. It is important to respect the Constitution of the
State of Alaska. Article I, Section 8 clearly gives grand juries
the power to investigate and make recommendations related to
public welfare or safety of its citizens. However, these powers
have been suspended on the Kenai Peninsula, he said. Although
the grand jury should be independent, it is not, he said. He
expressed concern that since 1989 the process has been
suppressed which denies people their rights. He said that SB 15
will help them to regain their rights.
2:45:00 PM
SCOTT EGGER, representing himself, Ninilchik, said he is
basically in support Senator Micciche's efforts in SB 15. He
asked members to study AS 12.40.030 and AS 12.40.040. After
studying Mr. Haeg's case, he felt that other cases would likely
benefit from the bill. He suggested members study Mr. Haeg's
case to understand the problems that exist in the Kenai area. He
alleged that multiple judges and prosecutors have committed
felonies by charging some people with crimes. He emphasized the
need for an independent review of this outside the judicial
system is warranted. He offered his belief that the grand jury
should be able to bring this case forward for investigation
based on AS 12.40.
2:47:51 PM
NANCY MEADE, General Counsel, Administrative Offices, Alaska
Court System, Anchorage, expressed concern with SB 15. She
agreed with Mr. Henderson that other avenues were available for
parties who believe they were wrongfully convicted, that errors
were made, or even worse, in the prosecution of their criminal
cases.
She said some, if not all of them, were taken advantage of in
[Mr. Haeg's] case. For example, a person could ask the trial
judge for reconsideration by indicating what the individual
thinks is wrong, she said. Second, a person could request an
appeal to the Alaska Court of Appeals, which occurred in this
case, she said. Third, a person could petition the Alaska
Supreme Court for consideration, which she thought occurred in
Mr. Haeg's case although she was unsure. Finally, as Mr.
Henderson mentioned, an individual who still believed that
problems existed could file for post-conviction relief under the
criminal rules and request to file another case in the trial
court. People have several opportunities for remedies, she said.
MS MEADE explained that in situations in which allegations were
very severe and deep, that there would be other ways to address
the concerns short of the grand jury procedure proposed in SB
15. For example, if someone thought that state officials were
corrupt, that individual could seek assistance from the U.S.
Department of Justice, the FBI, or the Ombudsman by asking for
an investigation.
MS. MEADE expressed her primary concern with Section 1, AS
12.40.120(c)-(d), which involves the judge helping a petitioner
draft a charge because it is a prosecutorial function.
Presumably, a prosecutor has already denied someone's request to
investigate or bring charges to the grand jury. The petitioner
would ask the judge to change the outcome and subsequently
decide whether the matter should go before a grand jury. She
found it troubling that a judge would need to set out each
deficiency in a written order. She characterized it as
requesting a judge to give legal advice or write something for
parties that would suffice.
She directed attention to subsection (c). She said the only
thing required to be in a petition was to state something that
on its face identifies an area to be investigated and allege
things, that if true, would warrant felony charge. While people
believe many things are true, little evidence supports these
beliefs. She said she fears, as some senators have expressed,
that the process in SB 15 would become a "Pandora's box, or a
can of worms" and be way overused. She recalled the sponsor
expressed his interest in keeping it narrow. She doubted that a
grand jury, even with its investigative powers, could overturn a
conviction or clear someone's name. Further, the procedure set
out in SB 15 does not quite address the issue. In addition, she
expressed concern over the fiscal impact to the court system by
convening grand juries not subject to the filter of an attorney
at the district attorney's office. That process identifies when
something warrants an indictment, she said. Although she has
other issues with SB 15, she asked members to consider the
biggest ones.
2:52:01 PM
SENATOR MICCICHE said he found it interesting that the courts
could not outline the deficiencies for a grand jury petition
when the [Alaska Supreme Court] essentially rewrote the salmon
initiative [in August 2018 when the state found Ballot Measure 1
unconstitutional]. He offered his belief that the court's action
essentially signaled future applicants to "shoot for the moon"
because the courts would rewrite their initiatives so they could
be placed on the ballot. He concluded that that having the court
involved is not unprecedented, but he was very concerned about
that outcome.
He emphasized that his goal was to provide an independent remedy
for individuals to have their unobstructed "day in court" when
warranted. In many proceedings, how, when, and what evidence can
be presented is controlled by the court rules. However, in very
rare cases, it could be difficult for people to present their
cases. He expressed a willingness to try to figure out a better
way forward to address this concern.
MS. MEADE said she was willing to do so.
2:53:53 PM
SENATOR SHOWER suggested that part of the issue is when things
are discovered [after the conviction]. He acknowledged that
tough questions arise, but civil debate can flesh out issues and
ideas. He hoped no one questioned the good work that is
currently being done. He asked if someone alleged issues similar
to ones on the Kenai Peninsula, whether the party could petition
to have the case moved to a different venue.
MS. MEADE responded that [Mr. Haeg] was convicted by a trial
court, which she believed was in Kenai. She said that he would
not be entitled to a second trial in Fairbanks.
SENATOR SHOWER asked if a person feels that they were treated
unfairly, and evidence arose similar to the disputed map in Mr.
Haeg's case, whether the person would have an option to request
a change in venue.
MS. MEADE answered that she was unsure, but she did not think
so. She said that a change of venue is available at pretrial if
significant publicity surrounding a case would prevent the
defendant from having fair jurors. She suggested that it might
be possible for a change in venue if the party believed the
community was not fair minded, but she was unsure.
[SB 15 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJUD Agenda 3.11.19.pdf |
SJUD 3/11/2019 1:30:00 PM |
|
| Senate Bill 15 Version A.PDF |
SJUD 3/11/2019 1:30:00 PM |
SB 15 |
| SB 15 Sponsor Statement.pdf |
SJUD 3/11/2019 1:30:00 PM |
SB 15 |
| SB 15 Sectional Analysis.pdf |
SJUD 3/11/2019 1:30:00 PM |
SB 15 |
| SB 15 Capital Closeup Article 10.17.18.pdf |
SJUD 3/11/2019 1:30:00 PM |
SB 15 |
| SB 15 NY Law Journal Article 9.6.11.pdf |
SJUD 3/11/2019 1:30:00 PM |
SB 15 |
| SB 15 National Association of Criminal Defense Lawyers.pdf |
SJUD 3/11/2019 1:30:00 PM |
SB 15 |
| SB 15 State Research.pdf |
SJUD 3/11/2019 1:30:00 PM |
SB 15 |
| Senate Bill 55, Version A.pdf |
SJUD 3/11/2019 1:30:00 PM |
SB 55 |
| SB 55 - Sectional Summary.pdf |
SFIN 3/27/2019 9:00:00 AM SJUD 3/11/2019 1:30:00 PM |
SB 55 |
| SB 55 - Sponsor Statement.pdf |
SFIN 3/27/2019 9:00:00 AM SJUD 3/11/2019 1:30:00 PM |
SB 55 |