Legislature(2005 - 2006)CAPITOL 120
04/05/2006 01:00 PM House JUDICIARY
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| Start | |
| Alaska Rural Justice and Law Enforcement Commission | |
| HB325 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
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| += | HB 325 | TELECONFERENCED | |
HB 325 - POST-CONVICTION DNA TESTING 3:01:13 PM CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 325, "An Act relating to post-conviction DNA testing; and amending Rule 35.1, Alaska Rules of Criminal Procedure." The committee took an at-ease from 3:02 p.m. to 3:04 p.m. REPRESENTATIVE GABRIELLE LeDOUX, Alaska State Legislature, sponsor of HB 325, relayed that her aide, Kimberly Wallace, would introduce the bill. KIMBERLY WALLACE, Staff to Representative Gabrielle LeDoux, House Special Committee on Fisheries, Alaska State Legislature, informed the committee that a committee substitute for HB 325 had been prepared. 3:05:37 PM REPRESENTATIVE COGHILL moved to adopt the proposed committee substitute (CS) for HB 325, Version 24-LS1222\I, Mischel/Luckhaupt, 4/1/06, as the work draft. There being no objection, Version I was before the committee. 3:05:51 PM MS. WALLACE paraphrased from her written testimony, which read in part [original punctuation along with some formatting changes provided]: Currently, 40 other states provide convicted persons access to DNA testing. The handout before you prepared by Legislative Research, dated February 1, 2006, shows a sample of states that have adopted legislation pertaining to post-conviction DNA testing within the past 5-6 years. The Innocence Project states that since 1989, over 170 people imprisoned in the U.S. have been proven innocent through post-conviction DNA testing. The intent of HB 325, is to improve the Alaska Criminal Justice system for all Alaskans by providing a statutory right to DNA testing. Specifically, this act establishes a procedure for application for DNA testing and the appointment of counsel. This legislation can help free an innocent person and let law enforcement and the public know that a guilty and dangerous person is still at large. One of the handouts in your committee packet is an article from the Ketchikan, "Stories in the News", dated March 6, 2006, by Representative Anderson. In the last paragraph, Representative Anderson states that one of his top priorities as a State Legislator is expansion of the DNA database. On page 4 of version I of HB 325, lines 9-11, the testing laboratory is ordered to make the DNA available to the DNA identification registration system and to any other law enforcement DNA databases. Our office has collaborated with the Department of Public Safety, the Department of Law, the Innocence Project and members of this committee to make HB 325 a better bill. I'd like to direct your attention to the format and content changes to HB 325, as outlined in the memo to the committee members from Representative LeDoux, dated April 4th, 2006. In conclusion, I'd like to mention the Scientific American Mind article that was also included in your packet. On page 26, in the bottom left-hand column, the article states that "Typically 20 to 25 percent of DNA exonerations had false confessions in evidence." This begs the question, "Why would anyone admit to something they haven't done?" The article continues on page 30 to note that psychologists categorize false confessions into three groups: 1) Voluntary false confessions 2) Compliant false confessions 3) Internalized false confessions There have been cases where no physical evidence has linked a person to a crime, but due to a confession, they have been charged and convicted and even sometimes executed for a crime they did not commit. If HB 325 can help just one person prove their innocence, and the real perpetrator to be identified by DNA testing, then we will have achieved what we set out to do. Thank you again for the opportunity to testify before you today. I know there are others who wish to testify on-line and in the audience. This concludes my presentation. 3:09:18 PM CLIFF STONE, Special Assistant, Office of the Commissioner, Department of Public Safety (DPS), relayed that the department [did have] a concern with [the original language of] proposed AS 12.72.230 - located on page 3 - because the drafter inadvertently stated that the deoxyribonucleic acid (DNA) testing itself would be performed at a law enforcement or correctional facility when, in fact, it's only the collection of samples for DNA testing that would be performed at these facilities. He noted that the language in proposed AS 12.72.240 and proposed AS 12.72.250 refers to the contracted, accredited laboratories where the DNA is actually tested. In response to a question from Chair McGuire, he said he is comfortable with the language currently in Version I. REPRESENTATIVE GRUENBERG offered his understanding that the DNA collection would be performed at the correctional or law enforcement facilities and the testing done elsewhere. He then referred to [page 3], line 23, and suggested that using the word "done" instead of the word "performed" would more accurately describe the DNA sample collection process. MR. STONE agreed. In response to further questions, he explained that the only other laboratory approved by the DPS to process DNA [samples] is a Washington State accredited laboratory, and suggested that someone else might be better able to answer questions regarding payment. 3:13:28 PM STEPHEN SALOOM, Policy Director, Innocence Project, expressed his thanks to those involved in sponsoring and hearing the bill. He highlighted that court review of DNA evidence has proven the innocence 175 people incarcerated for serious crimes and that freeing [those falsely accused] has allowed the pursuit of the actual perpetrators of those crimes. He referred to Representative Anderson's work and support of using DNA sampling to "enhance the accuracy and effectiveness of the criminal justice system," and opined that [HB 325] would offer the same opportunity. He relayed that President George W. Bush; U.S. Senator Frist, President of the Senate; and U.S. Representative Hastert, Speaker of the House, also demonstrated their support of post-conviction DNA testing through passage of the congressional Justice for All Act of 2004, [H.R. 5107], which [provides financial incentives to those states] that allow the testing. MR. SALOOM said, "The Innocence Project is extremely pleased to know that Alaska is considering legislation to join the other 40 states that have created statutory avenue for consideration of DNA evidence after a conviction." He expressed his belief that such legislation ensures public confidence in criminal conviction, public safety, and justice itself. No one benefits when an innocent person is convicted of a crime - not the victim, the police, the prosecutor, the legal system, or the public. The only person who wins is the real perpetrator who's protected from prosecution by the mistaken focus on an innocent person; HB 325 is a fantastic step towards providing exactly the justice that Alaska deserves and that is being adopted around the country, he remarked. MR. SALOOM relayed, however, that whereas the Innocence Project endorses this bill, there is concern regarding the language used on page 4, lines 13-14, which says: (1) "actual innocence" means clear and convincing evidence such that no reasonable juror would have convicted the defendant; MR. SALOOM opined that this provision could provide "a fatal flaw" to the bill, and recommended that it be changed to say, "'actual innocence' means that no reasonable jury would have convicted the defendant". However, he characterized even this suggested change as a "slight compromise." He relayed that most of the other states use a more ideal standard which takes into account that a jury, within "reasonable probability," might have provided a different verdict had they been able to consider [DNA] evidence. He explained that the issue is not about setting someone free but rather whether to test evidence that might then indicate that either a new trial should be granted or some other form of release be considered. 3:19:09 PM REPRESENTATIVE GRUENBERG sought confirmation that Mr. Saloom was suggesting that the words, "clear and convincing evidence" be deleted from page 4, line 13. MR. SALOOM concurred, and referred to the first mention of "actual innocence" found in proposed AS 12.72.210, which says in part: A court may not order DNA testing unless the petitioner shows, by a preponderance of the evidence, that (1) favorable results of the DNA testing could demonstrate the petitioner's actual innocence; MR. SALOOM explained that "preponderance" already sets one standard and so adding another standard of "clear and convincing evidence" would not be [ideal]. REPRESENTATIVE GRUENBERG asked why "preponderance of the evidence" should be used as the standard. MR. SALOOM relayed that the Innocence Project believes that "preponderance of the evidence" is the best standard to use at "this" point. He referred to the aforementioned 175 DNA exonerations and noted that a jury had already found those people guilty beyond a reasonable doubt on all elements of the crime. He explained that once new evidence is obtained [through DNA testing], it is possible [though unintentional] to over- estimate the other, previously considered evidence. REPRESENTATIVE GRUENBERG opined that this issue should be considered further. 3:26:06 PM HILLIARD H. "TRES" LEWIS, III, Private Investigator, Mendenhall Investigations, Inc., provided some historical background of DNA testing in an effort to explain the importance of HB 325. He relayed that much of the collected evidence - such as a hair without a root from an arm - is not suitable for any kind of testing other than for mitochondrial DNA, which is DNA through the mother's side. He sited a former case of his where the individual was convicted though might not have been had this statute and mitochondrial DNA testing been available. He then referred to the earlier discussion of the dual standard [present in Version I] and opined that the "preponderance of the evidence" standard is more appropriate. MR. LEWIS relayed that there are still hurdles convicted individuals must face before the biological samples can be tested, and that a somewhat lower standard would be appropriate in providing those convicted with the opportunity to prove their innocence through the DNA testing process. In researching test prices, he said he found the costs to be anywhere from $125 to $1,500 - with some tests going so far as to determine the eye color of the individual from which the biological sample originated. He expressed his belief that the state should consider these costs to be insignificant [compared to the benefit provided]. REPRESENTATIVE COGHILL asked Mr. Lewis whether he felt the science of DNA testing has become more reliable or whether bigger questions have simply been raised. MR. LEWIS explained that advances in DNA testing have been made from the first-time testing through Restriction Fragment Length Polymorphisms (RFLP) - DNA fingerprinting - to Polymerase Chain Reaction (PCR), which now tests up to 13 positions of the DNA. He opined that DNA testing is becoming more discrete, more precise. He referred to the science of relying on matching the lead content in bullets to determine whether someone was guilty or not - a science since determined to be unreliable by the National Academy of Science and no longer used by the Federal Bureau of Investigation (FBI). He expressed his belief that "the science involved in the early development of DNA testing was very fundamentally sound." Furthermore, he opined, DNA testing is reliable for both the conviction as well as the release of the innocent and has become more important in determining "who was present and who was not present [at the crime scene]." 3:34:21 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), informed the committee that whereas the [department] agrees with Representative LeDoux that this is an important issue and bill, the DOL still has serious reservations about the substantive provisions of the bill in its present form. In noting that the bill would establish circumstances where a person convicted of a crime could obtain post-conviction DNA testing with the goal of undermining the conviction, she relayed that two important principles were involved. The first, she explained, deals with the importance of the finality of criminal convictions when the person asking for this testing was convicted by a jury "beyond a reasonable doubt," had the automatic right to an appeal, and had the conviction affirmed following the appeal. MS. CARPENETI explained that the second principle pertains to the victim of a crime who is trying to put closure on the experience and move on. She informed the committee that the Alaska State Constitution now gives victims of a crime the right to timely disposition of the case following the arrest of the defendant, and therefore reopening the case for post-conviction procedures is hard on victims. Furthermore, she highlighted that the U.S. Supreme Court has found that finality in criminal convictions is essential to the operation of the criminal justice system because without finality, criminal law is deprived of much of its deterrent effect. MS. CARPENETI, in noting that there are rare cases of truly innocent persons being wrongly convicted, posed the question of how the statute should be written to catch the truly innocent person without allowing a [convicted] defendant who should be serving his/her time from bringing repetitive requests for DNA [testing]. She also said that the "burden of proof" [in Version I] is not clear and that [the department's] position, unlike that of the Innocence Project, is that a person should prove, by clear and convincing evidence, that post-conviction testing is appropriate. REPRESENTATIVE GRUENBERG opined that there are two aspects to "burden of proof": the burden of going forward, which pertains to "who carries it," and the burden of persuasion, which refers to the level at which it must be proved. He said that although he recognizes the importance of not having a victim repeat the court experience, his belief is that this is far less important than determining whether someone is guilty or innocent. MS. CARPENETI reiterated her earlier comments regarding those who've been convicted and said that at a certain point, one has to say that a person has had his/her chances [to prove innocence], and so if he/she wants to challenge a perfectly valid conviction, then he/she ought to bear a pretty high burden of proof to show that it's appropriate to challenge the conviction at that point in time. She highlighted that current Alaska statutes require "clear and convincing evidence" as the burden of proof for factual matters for all other post- conviction release cases, and therefore this should apply equally to those petitioning for DNA testing, which is merely another form of post-conviction release case. 3:40:42 PM REPRESENTATIVE GRUENBERG referred to language on page 3, lines 6-10 - proposed AS 12.72.210(3) - which read in part: (3) conclusive DNA test results were not available before the petitioner's conviction, and the petitioner did not secure DNA testing before the petitioner's conviction because DNA testing was not reasonably available or for reasons that constitute justifiable excuse, ineffective assistance of counsel, or excusable neglect; REPRESENTATIVE GRUENBERG suggested that this might be sufficient justification for not requiring "clear and convincing evidence." He expressed his belief that if DNA testing was not available, then a "preponderance of the evidence" should be sufficient. MS. CARPENETI remarked that it is difficult to discuss these situations in a vacuum, and noted that there were very few cases in Alaska for which [DNA testing] was not available and this might be due to the fact that Alaska is a fairly new state. She highlighted that many of those convicted submit applications requesting different or more sophisticated DNA testing than was available at the time of their conviction or they claim that their attorneys did not ask for the testing at the time of the trial when in fact there may have been a very good reason for not doing so. REPRESENTATIVE GRUENBERG said such latter instances might come under the heading of "ineffective assistance of counsel," which is another matter. MS. CARPENETI agreed. 3:42:46 PM CHAIR McGUIRE announced that HB 325 would be assigned to a subcommittee made up of Representatives Gruenberg, Anderson, and Kott, with Representative Kott being chair of the subcommittee. REPRESENTATIVE GRUENBERG, referring to page 3, noted that language on line 6 says, "results were not available", whereas language on line 8 says, "not reasonably available." MS. CARPENETI agreed that this difference in language raises the issue of clarity, and relayed she would provide the subcommittee with a list of anything else in the bill that raises that same issue. REPRESENTATIVE GRUENBERG then referred to page 3, lines 25-29, regarding payment of the cost, and requested that Mr. Saloom be available to provide the subcommittee with input regarding the language New York used in addressing this topic. MS. CARPENETI relayed that one of the DOL's suggestions incorporated into Version I was the suggestion requiring that applicants for post-conviction DNA testing submit an affidavit swearing that they are "factually innocent" of the crimes for which they were convicted as well as of any lesser included offenses. REPRESENTATIVE GRUENBERG opined that this process should provide for additional penalties to [be added to existing sentences] if applicants are found guilty of perjury. MS. CARPENETI remarked that there ought to be some risk associated with filling out the affidavits. She explained that the purpose for wanting an affidavit of factual innocence is to have on record that a defendant is claiming true, "actual innocence." She then noted that the Alaska Court of Appeals case, Osborne v. State, provides a good example of a defendant who should not be allowed post-conviction DNA testing, someone who at the time of the hearing admitted, both verbally and in writing, to participating in the crime. Because of those admissions, she relayed, the DOL's belief is that the defendant should not be allowed post-conviction DNA testing. She said she is aware of the belief held by the Innocence Project that factually innocent people do, under some circumstances, confess guilt; however, under those circumstances, there should be no reason why those convicted should not be willing to make an affidavit claiming they are factually innocent of the crime and explain why their prior admissions of guilt should not be believed. 3:53:06 PM MR. SALOOM interjected to opine that the term "factual innocence" raises a separate issue than does the term "factually innocent of that or any lesser included crime." REPRESENTATIVE GRUENBERG returned attention to the language on page 4, lines 13-14, referring to "would have convicted the defendant" and suggested that the subcommittee draft more specific language such as, "would have convicted the defendant of the crime for which the DNA sample is sought." CHAIR McGUIRE concurred, and relayed her understanding of the challenges the DOL faces on this issue. She noted that [the DOL] also suggests that the bill include language requiring a defendant's attorney to submit an affidavit explaining his/her reasons for the particular "approach to DNA testing [chosen] at the trial level." She again referred to the Osborne case as an example, and surmised that the defendant's attorney made the tactical decision to not pursue "more sophisticated DNA testing at trial," even though it was available at that time, so as to not further implicate [his] client. REPRESENTATIVE GRUENBERG remarked that all of the circumstances [of a case] should be known. He suggested that [Ms. Carpeneti] and Mr. Saloom each provide [the subcommittee] with more [information] on this issue so that both sides are represented. MR. SALOOM agreed to do so. MS. CARPENETI relayed that the biggest concern [the DOL] has with Version I pertains to the language of proposed AS 12.2.210 that reads: (1) favorable results of the DNA testing could demonstrate the petitioner's actual innocence; MS. CARPENETI opined that the meaning of "could demonstrate" is not clear enough because [the DOL] believes that the petitioner requesting DNA testing should have to "conclusively prove" that he/she is innocent. 3:57:24 PM REPRESENTATIVE COGHILL commented that changing the wording to "will [conclusively prove a person's innocence]" might be too "conclusive the other way." He suggested possibly "ratcheting up" [the standard to] "preponderance of the evidence." He then referred to the language on page 3, line 6, regarding test results not being available and opined that this could be a "technical snafu" as well. REPRESENTATIVE GRUENBERG, referring to page 3, line 1, said he might support the word "could" because ultimately at trial, the prosecution has the burden of proving a fact beyond a reasonable doubt, yet [language in the bill] pertains to a civil action, and therefore the burden of persuasion shifts to the defendant to prove a fact by a preponderance of the evidence. MS. CARPENETI concluded by saying that the DOL's stand is that the applicant for post-conviction testing should exercise due diligence in bringing forward his/her claim. CHAIR McGUIRE concurred. REPRESENTATIVE GRUENBERG sought confirmation regarding whether Alaska Rules of Civil Procedure Rule 35(b)(1) already contains a due diligence standard. MS. CARPENETI explained that there are existing statutes that address "due diligence" and specify other requirements and exceptions regarding post-conviction requests (PCR). CHAIR McGUIRE said that it is in everybody's interest to have certainty one way or the other. CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 325, reiterated that HB 325 [Version I] has been assigned to a subcommittee, and remarked on possibly hearing the bill again next week.
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