Legislature(2005 - 2006)
04/10/2006 02:19 PM House JUD
| Audio | Topic |
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| Start | |
| HB258 | |
| HB413 | |
| HB325 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 325 - POST-CONVICTION DNA TESTING 3:39:45 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." [Before the committee was the proposed committee substitute (CS) for HB 325, Version 24-LS1222\I, Mischel/Luckhaupt, 4/5/06, which had been adopted as the work draft and assigned to a subcommittee on 4/5/06; also included in members' packets was the proposed committee substitute (CS) for HB 325, Version 24-LS1222\S, Luckhaupt, 4/10/06.] REPRESENTATIVE KOTT, speaking as chair of the subcommittee, relayed that the proposed committee substitute (CS) for HB 325, Version 24-LS1222\S, Luckhaupt, 4/10/06, captures most of the concerns that could be addressed within the scope of the legislation. 3:43:00 PM REPRESENTATIVE COGHILL moved to adopt the proposed CS for HB 325, Version 24-LS1222\S, Luckhaupt, 4/10/06, as the work draft. There being no objection, Version S was before the committee. 3:43:14 PM KIMBERLY WALLACE, Staff to Representative Gabrielle LeDoux, House Special Committee on Fisheries, Alaska State Legislature, spoke on behalf of the sponsor, Representative LeDoux. Ms. Wallace expressed the hope that the changes encompassed in Version S will garner the committee's support for Version S. She then informed the committee that throughout the legislation the term "petitioner" and "defendant" was replaced with "applicant". Page 1, line 9-10, of Version S now contains the language, "The applicant shall serve a copy of the application on the attorney general". On page 2, line 6-7, language was inserted such that the sentence now reads: "Stating that the applicant was innocent of the crimes for which the applicant was convicted and any lesser included offense". MS. WALLACE explained that there is now language on page 2, line 8, that reads: "(3) an affidavit from trial counsel stating the reasons DNA testing, or more discriminating DNA testing, was not sought before trial, or a statement by the applicant explaining why this affidavit was not obtained". Also in Version S, proposed AS 12.72.200(c) no longer includes the language, "The court may deny a second or subsequent application requesting relief under this section". The language, "under (c) of this section" was added to page 2, lines 15-16, in order to provide some clarity. Proposed AS 12.72.200(d) of Version S no longer includes the language, "The court shall forward a copy of the application for DNA testing to the attorney general". On page 2, line 24, of Version S, the time limit was increased from 30 days to 45 days per the request of the Department of Law (DOL). REPRESENTATIVE GRUENBERG recalled that the question was whether the time allowed for the attorney general to respond to the application should be 30 days or 60 days. He further recalled that Ms. Carpeneti was going to review that matter. He expressed concern that 45 days might not be enough, given the attorney general's schedule. 3:46:53 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said she had suggested 60 days, but hadn't had a chance to further research that issue. MS. WALLACE continued reviewing the changes encompassed in Version S. She informed the committee that Version S no longer includes a subsection (h) in proposed AS 12.72.200. On page 2, line 28, of Version S, the title of AS 12.72.210 has been changed to read "Standards for DNA testing." Furthermore, it now stipulates a standard of clear and convincing evidence. REPRESENTATIVE COGHILL noted the abundant use of the word, "reasonable" in proposed AS 12.72.210(1). He asked how that provision will work. MS. WALLACE explained that the sponsor didn't want to make the hurdle too high for the applicant, though this seemed to engender disagreement from interested parties. REPRESENTATIVE COGHILL asked about the tension between the "clear and convincing" language and the "reasonable" language in proposed AS 12.72.210(1). REPRESENTATIVE GRUENBERG acknowledged that a clear and convincing evidence standard could seem to be at odds with the reasonable language, but pointed out that one can never really show much more than that because of the speculative nature of the evidence. The question, he surmised, is: "If we allow this testing, is it going to make a difference." He highlighted that at this point all that is being asked is whether to allow the testing. In further response to Representative Coghill, Representative Gruenberg reminded members that this standard would apply even if the testing is not ordered. 3:55:45 PM MS. WALLACE continued with her review by noting that Version S no longer contains the word "reliable" in proposed AS 12.72.210(2), because the [subcommittee and sponsor] don't want the judge to decide whether the DNA was reliable or not. Furthermore, in Version S, proposed AS 12.72.210(3) no longer contains the language, "conclusive DNA test results were not available before the petitioner's conviction", and proposed AS 12.72.230(a) no longer contains the language "Collection of". Also, proposed AS 12.72.230(a) now says in part, "DNA samples shall be tested at a laboratory operated or approved by the Department of Public Safety", rather than, "Testing of the samples shall be performed at a laboratory operated or approved by the Department of Public Safety". She then pointed out that proposed AS 12.72.230(a) of Version S now contains the language "other than samples collected under (a) of this section,". MS. WALLACE relayed that Version S no longer contains a definition of the term, "actual innocence", and that the definition of the word, "incarcerated" was changed to read simply, "'incarcerated' means physically housed in a correctional facility following a felony conviction." She noted that the aforementioned change was requested by the Division of Juvenile Justice. Ms. Wallace then informed the committee that this morning there was discussion regarding the notion that those who are proven innocent shouldn't have their DNA placed in a database. She noted that the committee has been provided with an amendment to address the aforementioned. Ms. Wallace also noted that the committee may want to address the issue of preservation of evidence. 3:59:18 PM REPRESENTATIVE GARA referred to page 2, lines 6-7, and offered his understanding that it specifies that DNA evidence can't be used if it shows that the individual is innocent of the crime that he/she was convicted of but doesn't also show that he/she is innocent of lesser included offenses. Offering a hypothetical example, he asked whether the language, "any lesser included offense" is really necessary. MS. WALLACE noted that Representative Gara's concern was debated [in the subcommittee]. She relayed that although Legislative Legal and Research Services didn't feel that language was necessary, the DOL felt strongly that it should be included. REPRESENTATIVE GABRIELLE LeDOUX, Alaska State Legislature, sponsor, explained that the DOL requested that language because it didn't believe that HB 325 should be about fine-tuning legal convictions. She further explained that HB 325 should target an individual who hadn't been involved at all in a crime and it was simply a case of mistaken identity. Representative LeDoux said that the DOL made an excellent argument and thus she agreed to include that language in the bill. She said that she is most concerned about an individual who wasn't present when the crime was committed, rather than an individual who should be in jail for 25 years but was instead sentenced to 35 years. REPRESENTATIVE GARA questioned whether there are lesser included offenses that may justify a small sentence while the broader included offense - that the individual didn't commit - would result in a long sentence. Although a couple of years of difference in the sentence is wrong, he said that it's of less concern than situations in which an individual is sentenced for twice as long as he/she should have been. REPRESENTATIVE COGHILL opined that this could be a matter of degree of guilt. He expressed his frustration with the ability of an offender to plea bargain, because the victims are always left on the short end. He said that he shares a bit of the DOL's concern, so although he struggles with the possibility of an innocent individual not having an opportunity [to prove himself innocent], the reality of the system as he perceives it makes him comfortable with the language. REPRESENTATIVE GRUENBERG said that he isn't entirely satisfied that the language, "and any lesser included offense" should be included. He asked that Ms. Carpeneti be allowed to comment on this issue. CHAIR McGUIRE passed the gavel to Representative Wilson. 4:05:42 PM MARY ANNE HENRY, Director, Office of Victims' Rights (OVR), Alaska State Legislature, specified that her major concern is with regard to why another system is being created when there is already a post-conviction relief (PCR) system that was put in place 10 years ago. She asked why a request for a DNA sample can't simply be part of a PCR request. Without finality, victims will continue to be traumatized and closure will be disrupted. Ms. Henry highlighted that HB 325 doesn't seem to include a time limit like there is for a PCR request, and that she would like it to. MS. HENRY expressed the same concern with regard to the burden of proof - the clear and convincing [evidence provision] - and the references to "reasonable". She questioned why the same standard isn't being used for both DNA sample requests and PCR requests. Ms. Henry suggested that when counsel is appointed, he/she should be required to submit additional information as well as a document stating that there are no meritorious claims. REPRESENTATIVE GRUENBERG suggested that proposed AS 12.72.210 only raises the question of whether one can get a test and whether the DNA could exculpate the defendant. That is why a lesser standard is used. With regard to whether the new counsel could file a brief stating that there is no meritorious claim, Representative Gruenberg offered his understanding that the language on page 2, lines 18-22, of Version S covers this matter. REPRESENTATIVE KOTT highlighted that the committee seems to be wrestling with the same language that the subcommittee did. MS. CARPENETI, in response to the issue raised by Representative Gruenberg, said that the DOL prefers to include the language, "any lesser included offense" because an individual who makes an application for further testing has been convicted beyond a reasonable doubt, has had an appeal that has been overturned, and is now in jail. Therefore, the aforementioned individual has had several chances to litigate the validity of the crimes for which he/she has been convicted. She offered her understanding that the procedure being established in HB 325 is meant to provide a wrongfully accused and convicted individual with another chance in a case where there has been a huge mistake. The department doesn't view such a procedure as being a fine-tuning of whatever sentence the convicted individual received. She indicated that the language, "and lesser included offense" is meant to clarify that this proposed statute should be used only in cases of misidentification. REPRESENTATIVE GARA indicated that he has two concerns with regard to DOL's position. He said the entire point of DNA evidence is that it could show that the jury made a huge mistake and that the individual [being convicted] didn't do what he/she is being charged with. Therefore, if DNA testing shows that an individual is innocent, the [DNA sample] should be able to be used. By included the language "any lesser included offense", there could be a situation in which two people assault an individual in order to rob that individual. One of the assailants assaults the individual to the point of murdering or raping the individual, and yet it is the other assailant who is convicted of that crime. He again highlighted that the advantage of DNA testing is that the individual who really committed the murder/rape is charged rather than the individual who didn't. Representative Gara specified that by including the language that an individual can't use DNA testing if the individual does some lesser included offense than he/she is convicted of, then the true perpetrator is let free and another has been wrongfully convicted. [Representative Wilson returned the gavel to Chair McGuire.] MS. CARPENETI reminded the committee that in such a case the defendant has already been sentenced and has had the opportunity to bring out such arguments and have them be considered. Furthermore, in the example provided earlier, the individual who did not actually commit the murder is an aider and abettor and thus is responsible under current law for the harm to the victim. Ms. Carpeneti opined that the post-conviction DNA testing procedures are really for those who are truly innocent and not participating at all, and that [the committee] should leave the sentencing considerations [as is]. She noted that there is a defense to felony murder for the individual who didn't actually [commit the murder] that can be brought to the court. Situations in which a person participates in a robbery but whose co-defendant went far beyond that are not what this bill should address. REPRESENTATIVE LeDOUX recalled that this matter was extensively discussed in the subcommittee, but the subcommittee couldn't come up with anything to address members' concerns. REPRESENTATIVE GARA posed a hypothetical situation in which two individuals attempt to rob someone, but one of the assailants decides to rape the victim while the other assailant attempts to stop the rape, but fails to do so. He further posed that the wrong individual is convicted of each crime. In such a situation, it doesn't make sense that the assailant who didn't commit the rape should sit in jail for the crime he/she didn't commit. 4:24:52 PM STEPHEN SALOOM, Policy Director, Innocence Project, stressed the importance of allowing the courts the ability to review convictions, especially in cases wherein DNA evidence testing was in its infancy, in order to determine if such testing was utilized correctly. With regard to why there should be a new avenue for DNA testing after trial as opposed to other new evidence after trial, the laws are not set up to tell the court whether it's acceptable to test evidence for a new reason that can be probative in a case. He highlighted that 40 other states have adopted similar legislation, and surmised that they did so because it's important to review such cases with DNA evidence so as not wrongly victimize someone else. MR. SALOOM then noted his agreement with [Representative Gara]. Furthermore, in 175 DNA exonerations, the jury had initially found an individual guilty beyond a reasonable doubt on every element of the crime despite the fact that the individual was actually innocent. Clearly, in those cases the prosecutor was able to convince the jury that the individual committed the crime when he/she hadn't. The question [this legislation is addressing] is whether [the DNA] evidence should even be reviewed to discover something that might be very probative. Here again, Mr. Saloom opined, the prosecutor can make a very good argument to the judge, based on the results of the initial case, to disallow testing, and this is of great concern. REPRESENTATIVE GRUENBERG asked if any other states include the language, "any other lesser included offense". MS. CARPENETI said she believes the backup material provided to members' indicates that other states do include such language. 4:31:44 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to change "45" to "60" on page 2, line 24. There being no objection, Amendment 1 was adopted. REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual Amendment 2, which read [original punctuation provided]: The investigating law enforcement agency shall preserve any biological material identified during the investigation of a crime or crimes for which any person may file a petition for DNA testing under this section. The identified biological material shall be preserved for the period of time that any person is incarcerated in connection with that case. REPRESENTATIVE GRUENBERG indicated that this language comes from Michigan law. CHAIR McGUIRE asked whether there were any objections to Conceptual Amendment 2. There being none, Conceptual Amendment 2 was adopted. 4:34:08 PM REPRESENTATIVE KOTT made a motion to adopt Amendment 3, which read: Page 4, lines 9-11 (b) The testing laboratory shall not make the results of a DNA test ordered under AS 12.72.200 available to the DNA identification registration system under AS 44.41.035 [and] or to any other law enforcement DNA databases unless the DNA test results identify the applicant as the source of the DNA evidence for which testing was sought. REPRESENTATIVE COGHILL objected for the purpose of discussion. REPRESENTATIVE KOTT explained that under Amendment 3, once the judge has allowed a DNA test to be performed and that test exonerates the individual, then that DNA test result won't be included in the DNA databank. However, Amendment 3 doesn't address the swab taken when the individual was first brought into custody or entered the correctional facility. MS. CARPENETI pointed out that AS 44.41.035(i) already includes a procedure to expunge DNA samples of an individual whose conviction has been overturned. REPRESENTATIVE COGHILL surmised that Amendment 3 addresses the DNA sample for the particular crime [for which the conviction was overturned]. CHAIR McGUIRE recalled that some states allow DNA swabbing at the time of arrest. Although the aforementioned can be controversial, states that have done so have actually found links to other crimes. Chair McGuire stated that she isn't comfortable with Amendment 3. MS. CARPENETI opined that the drafting of Amendment 3 is problematic. For example, in the Alaska Court of Appeals case, Osborne V. State, the defendant sought to test the condom that was found in the area of the crime 26 hours after the crime was committed; this area happened to be a common area for romantic trysts. Whether or not the semen in the condom was the defendant's wasn't dispositive of the case because the other evidence was overwhelming, and so the conviction would not have been overturned. Therefore, in that case, for example, the defendant's DNA shouldn't be taken out of the DNA databank, she opined. She reiterated that current law allows for DNA samples to be removed from the databank when the defendant has been found not guilty or when the conviction has be overturned upon appeal. REPRESENTATIVE KOTT withdrew Amendment 3 with the intention of working further on this issue as the legislation moves through the process. 4:39:12 PM REPRESENTATIVE GARA made a motion to adopt Amendment 4, to delete from page 2, line 7, the language, "and any lesser included offense". REPRESENTATIVE COGHILL objected. REPRESENTATIVE GARA suggested that committee members think about a situation in which a family member committed a crime that justifies a 10 year sentence but he/she is instead sentenced to a far longer period of time for a different crime, and 25 years into the much longer sentence the DNA evidence shows that the family member didn't commit that particular crime. That individual will sit in jail for the rest of his/her life unless he/she is able to use DNA evidence to show that he/she didn't commit the crime for which he/she was sentenced. Representative Gara asked committee members to think about how they would feel if the law didn't allow the DNA evidence to illustrate that one of their family members was wrongly convicted. REPRESENTATIVE GRUENBERG commented that he, too, is troubled with regard to this aspect of the legislation. He said he couldn't find any reason why someone who might have committed a lesser included offense should be disqualified from being tested. He highlighted that [the DNA evidence] may significantly shorten the sentence. MS. CARPENETI characterized it as a special procedure to challenge a conviction that for all other reasons has been upheld by the appellate courts. The purpose [of the language "any lesser included offense"] is to address a mistakenly identified perpetrator - not an individual who feels that he/she should've been convicted of sexual assault in the second degree rather that sexual assault in the first degree, for example. This language, she further opined, is for the extraordinary case in which the individual is factually innocent. 4:42:44 PM REPRESENTATIVE GARA relayed his belief that between now and the time he dies there will be at least one injustice done under this language, one injustice which is one too many. He pointed out that the law is written to reflect the notion that there are criminals with a conscience. In fact, there are instances in which the defendant is sentenced less if he/she attempts to prevent the continuation of the crime he/she had initially engaged in. He opined that there will be circumstances in which a perpetrator will be convicted of a murder when he/she simply assaulted someone and then tried to stop the murder. 4:43:55 PM A roll call vote was taken. Representatives Gruenberg, Gara, and Kott voted in favor of Amendment 4. Representatives McGuire, Coghill, and Anderson voted against it. Therefore, Amendment 4 failed by a vote of 3-3. MS. CARPENETI returned attention to proposed AS 12.72.210(1), and opined that it's unclear because, among other things, it should instead provide that if the results of the DNA test are as the claimant asserts, then no reasonable trier of fact would find the individual guilty. She characterized the language in proposed AS 12.72.210(1) as allowing a "fishing expedition" because it will allow those in jail to bring applications for post-conviction DNA testing on very slim grounds. She relayed her understanding that if the testing comes out as the applicant asserts, then it will be almost dispositive and therefore decide the case. The DOL has a major concern with the test and with the fact that no due diligence is required. This provision allows an individual to bring it up at any time, whereas the PCR applications have limits in which to bring them forth, and although there are exceptions for cases with newly discovered evidence, the individual must establish that he/she proceeded with due diligence. CHAIR McGUIRE asked why the subcommittee decided not to adopt a due diligence standard. REPRESENTATIVE GRUENBERG said he didn't know. CHAIR McGUIRE said that she would be inclined to offer an amendment to adopt a due diligence standard. REPRESENTATIVE GRUENBERG asked if there is a standard specifying a time limit. MS. CARPENETI pointed out that the PCR statutes specify limits of either one year from when an appeal has been decided or two years from trial if there's no appeal. Those statutes further specify that under exceptional circumstances and in the interest of justice, there are circumstances that are envisioned for PCR, such as newly discovered evidence being brought after the aforementioned time period. REPRESENTATIVE LeDOUX offered her recollection that the due diligence standard wasn't included because if DNA testing can actually prove someone's innocence, then no matter how much time has passed, [it should be allowed]. 4:48:16 PM CHAIR McGUIRE surmised that Ms. Carpeneti's concern is that there will be individuals making this claims all the time and thus it will be cumbersome. MS. CARPENETI acknowledged that's one of the DOL's concerns. She then pointed out that the further away from the crime [the evidence is brought forward], the greater the likelihood that the victims will have passed away and that the other evidence will have been scattered. Therefore, it's in the interest of everyone to resolve cases as soon as possible. She noted that most PCR applications require that persons, even those who don't meet the statutory deadlines, act with due diligence. REPRESENTATIVE COGHILL relayed his belief that under proposed AS 12.72.210(1), there seems to be a "fairly decent vetting." Although he acknowledged that the continual use of the term "reasonable" makes it difficult to "nail it down," it still has to be clear and convincing. He said that the aforementioned is the reason he is willing to retain the language, "any lesser included offense". Furthermore, couldn't the court say that an individual's time to obtain DNA testing had expired because he/she already had multiple opportunities to do so? Also, isn't there a motivation to seek [DNA testing] earlier rather than later? [Chair McGuire turned the gavel over to Representative Anderson.] MS. CARPENETI replied yes, except that language on page 4, lines 4-5, says that the judge doesn't have to worry about the timeliness of the request. MS. CARPENETI, in response to a question, suggested deleting the language on page 4, lines 4-5, which says, "Notwithstanding any law or rule of procedure that bars an application for post- conviction relief as untimely,". The hope, she opined, is that this change would negate the provision in Version S that takes away all requirements for due diligence for PCR applications. REPRESENTATIVE ANDERSON [made a motion to adopt] Ms. Carpeneti's suggestion as Amendment 5, to delete from page 4, lines 4-5, the words, "Notwithstanding any law or rule of procedure that bars an application for post-conviction relief as untimely, an" and insert the word, "An". 4:52:07 PM REPRESENTATIVE LeDOUX questioned how one could expect the typical prisoner to know whether he/she has a claim for relief via the use of DNA testing if the law is written such that he/she will be barred from relief because of a lack of due diligence. REPRESENTATIVE ANDERSON opined that the public defenders are very competent and informed on such matters. REPRESENTATIVE LeDOUX pointed out, though, that once an individual is convicted and is in jail, he/she no longer has the services of the public defender. REPRESENTATIVE ANDERSON reiterated his belief that the public defender would still inform the [jailed person]. MS. CARPENETI clarified that it depends on the circumstance. She noted that the individual would be represented through appeals and PCR remedies. She also noted that determining whether there was due diligence depends on the circumstances; for example, when did the [evidence] come to light and how long did the individual wait after finding out about it. Therefore, if the individual [uncovered evidence] 20 years later, the court could find that the individual acted with due diligence because he/she proceeded without delay once that new evidence was discovered. REPRESENTATIVE GARA expressed his hope that Representative Anderson would consider withdrawing the amendment. Drawing on his experience as an attorney, he relayed that it is the innocent person who will fight for his/her innocence the least while it is the guilty person who will fight the most to get released. When there is DNA evidence that shows someone's innocence, and the innocent person decides not to act on it immediately because he/she don't know what DNA is or he/she has lost all hope, that's the type of person that DNA evidence is supposed to protect. REPRESENTATIVE GARA opined that the fact that the innocent individual didn't act on the evidence immediately is almost a testament to that individual's character, and yet those innocent individuals are being punished for having that character. He said that the reality is that DNA evidence exonerates innocent people, and so it would be very wrong to leave an innocent person in jail because he/she didn't act as quickly as the government specifies. Therefore, he opined, there is every reason not to impose this additional standard. [Representative Anderson returned the gavel to Chair McGuire.] MS. CARPENETI, in response to a question, explained that once an applicant is tested, the process returns to that used for PCR under AS 12.72.010 through AS 12.72.040, which include the timeliness provisions. CHAIR McGUIRE suggested that the committee move the legislation and members work further on it as it continues through the process. REPRESENTATIVE GRUENBERG recalled testimony that the language of proposed AS 12.72.210(1) is confusing. Therefore, he suggested simplifying that language by deleting the words, "reasonable probability that a reasonable trier of fact would have a". CHAIR McGUIRE asked if the aforementioned would defeat any compromises made in the subcommittee. REPRESENTATIVE LeDOUX opined that there was no compromise reached on that particular language. REPRESENTATIVE KOTT said that suggested change would probably work. However, in order to put this in the proper context, one must review what other states have done. He relayed that most other states use a reasonable probability standard. 5:00:43 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 6, to delete from proposed AS 12.72.210(1) the words, "reasonable probability that a reasonable trier of fact would have a". There being no objection, Amendment 6 was adopted. 5:01:03 PM CHAIR McGUIRE turned the committee's attention back to Amendment 5 [text provided previously]. A roll call vote was taken. Representatives Anderson, Coghill, and McGuire voted in favor of Amendment 5. Representatives Kott, Gara, Gruenberg, and Wilson voted against it. Therefore, Amendment 5 failed by a vote of 3-4. 5:02:27 PM REPRESENTATIVE ANDERSON moved to report the proposed CS for HB 325, Version 24-LS1222\S, Luckhaupt, 4/10/06, as amended, out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, CSHB 325(JUD) was reported from the House Judiciary Standing Committee.
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