Legislature(2007 - 2008)BELTZ 211
01/31/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s)|| Select Committee on Ethics Legislative | |
| SB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 5 | TELECONFERENCED | |
SB 5-FAILURE TO REPORT CRIMES
2:01:41 PM
CHAIR FRENCH announced the consideration of SB 5 and said the
first order of business is to adopt the committee substitute
(CS), Version \M.
SENATOR HUGGINS moved CSSB 5, labeled 25-LS0097\M, as the
working document. There was no objection.
CHAIR FRENCH noted the proposed amendments that were discussed
during the previous hearing.
SENATOR McGUIRE made a motion to adopt Amendment 1, labeled 25-
LS0097\M.2.
Amendment 1
Page 2, line 11:
Delete "in a timely manner"
Insert "as soon as reasonably practicable [IN A
TIMELY MANNER]"
CHAIR FRENCH found no objection and announced that Amendment 1
was adopted.
2:04:40 PM
SENATOR McGUIRE made a motion to adopt Amendment 2, labeled 25-
LS0097\M.1.
Amendment 2
Page 1, line 7, following "victim":
Insert "or a coconspirator or accomplice of
another person who commits the crime listed in (1)(A)
- (D) of this subsection"
CHAIR FRENCH objected for discussion purposes.
SENATOR McGUIRE explained that it addresses a concern the
Department of Law (DOL) expressed about forcing a person to
self-incriminate. She emphasized that the right to not self-
incriminate supersedes any statutory right regardless, but the
amendment would clarify that a coconspirator or accomplice to an
underlying crime would not be expected to report the crime.
CHAIR FRENCH restated that in no case would someone who is
involved in the commission of a crime ever be charged with
failure to report. He or she would be charged with the
underlying crime or not charged at all.
SENATOR McGUIRE said yes.
2:06:28 PM
SENATOR THERRIAULT recalled a national case involving a young
girl who was lured into a casino bathroom. A friend of the
perpetrator had knowledge of the incident. He asked if there is
a bright line at the point where a person becomes an accomplice
or coconspirator.
SENATOR McGUIRE said the statutes defining an accomplice or
coconspirator are clear. In fact, former Senator Pearce's
original misprision law [failure to report a felony] was
designed to respond to that case. The target of this bill is the
person who did not conspire or participate in the crime, but has
knowledge of the crime and could possibly save the victim's
life.
2:07:48 PM
SENATOR WIELECHOWSKI posed a situation whereby a witness helped
the attacker escape instead of reporting the crime. This
provision would exempt that bad act. He suggested leaving well
enough alone since there is a constitutional protection against
self-incrimination.
SENATOR McGUIRE said, first, a person who takes the step to
become an accomplice would be charged with the more serious
crime. The intention here is to simply get innocent bystanders
involved. Second, the concern DOL expressed has some founding.
When the Exxon Valdez fetched up on Bligh Reef, Captain
Hazelwood reported the incident. A creative defense lawyer
motioned to strike that call from evidence. The argument was
that reporting was mandatory under spill laws so he was
essentially forced to self-incriminate. The point of this
amendment is to make sure that a defense attorney can't use that
creative argument to get the charge thrown out.
SENATOR THERRIAULT mentioned the issue of charge stacking and
cutting a deal with prosecutors.
CHAIR FRENCH said that relates to the memo from DOL. The
committee could discuss the issue now or hold it for subsequent
discussion.
2:13:59 PM
SENATOR McGUIRE withdrew Amendment 2.
CHAIR FRENCH announced that without objection, Amendment 2 is
withdrawn.
SENATOR WIELECHOWSKI asked or if there is a requirement to give
your name when reporting a crime or could a report be anonymous.
CHAIR FRENCH solicited a response. Finding none he said that
question would be given consideration.
CHAIR FRENCH made a motion to adopt Amendment 3, labeled 25-
LS0097\C.1 and objected for discussion purposes.
Amendment 3
Page 2, line 12 [15]:
Delete "class A misdemeanor"
Insert new material to read:
"(1) class C felony if the crime not
reported is an unclassified felony; or
(2) class A misdemeanor if the crime not
reported is other than an unclassified felony."
CHAIR FRENCH noted that the amendment pertains to an earlier
version of the bill. Thus it requires amendment.
CHAIR FRENCH made a motion to amend Amendment 3 as follows:
On line 2 delete "class A misdemeanor" and insert "a
class C felony". [Reference is to page 2, line 15 of
Version M.]
CHAIR FRENCH explained that failure to report an unclassified
felony would be a class C felony. That includes: murder in the
first degree, murder in the second degree, sexual assault in the
first degree, sex abuse of a minor in the first degree, and
kidnapping. It would be a misdemeanor to not report lesser
crimes such as: sex assault, sex abuse, and assault causing
serious physical injury. Thus it is more serious not to report a
horrific murder than to not report what may be a bar fight,
which is captured by subparagraph (D).
SENATOR THERRIAULT asked for and received clarification. He said
he had no objection.
CHAIR FRENCH removed his objection.
2:18:19 PM
SENATOR WIELECHOWSKI asked what the punishment is for a class C
felony and a class A misdemeanor.
CHAIR FRENCH relayed that the penalty for a class C felony is 0
to 5 years in prison and a $50,000 fine. The penalty for a class
A misdemeanor is 0 to 1 year in prison and a $10,000 fine. A
suspended imposition of sentence (SIS) could pertain to either
crime. Upon completion of some probationary terms, a judge could
suspend the sentence.
SENATOR THERRIAULT asked is the crime for not reporting would be
the same as the crime itself.
CHAIR FRENCH said no; failure to report an unclassified felony
would be a class C felony.
SENATOR THERRIAULT asked what the penalty is for an unclassified
felony.
CHAIR FRENCH said it's up to 99 years in prison. For murder 1
the penalty is 20 to 99 years, for murder 2 the penalty is 10 to
99 years. He noted that sex assault and sex abuse penalties have
recently been seriously increased.
SENATOR THERRIAULT asked what the crime classification is for
murder.
CHAIR FRENCH said it's an unclassified felony. Class A felony is
the least serious followed by class B then class C. An
unclassified felony is the most serious.
2:20:07 PM
SENATOR THERRIAULT stated no objection to Amendment 3, but noted
it requires a technical fix. The reference should be to page 2,
line 15.
CHAIR FRENCH said the discrepancy is noted; the reference is
from the earlier version.
CHAIR FRENCH announced Amendment 3, as amended, is adopted
without objection.
2:20:40 PM
SENATOR WIELECHOWSKI made a motion to adopt Amendment 4, labeled
25-LS0097\C.1.
Amendment 4
Page 2, following line 12:
Insert a new bill section to read:
"* Sec. 3. AS 11.56.765(b) is amended to read:
(b) In a prosecution under this section, it is
an affirmative defense that the defendant
(1) did not report in a timely manner
because the defendant reasonably believed that doing
so would have exposed the defendant or others to a
substantial risk of physical injury; [OR]
(2) acted to stop the commission of the
crime and stopped
(A) the commission of the crime; or
(B) the completion of the crime being
attempted; or
(3) reasonably believed that the crime had
already been reported to a peace officer or law
enforcement agency."
Renumber the following bill section accordingly.
CHAIR FRENCH objected for discussion purposes.
SENATOR WIELECHOWSKI said the amendment would add an affirmative
defense for a witness who reasonably believes that the crime has
already been reported to authorities.
SENATOR McGUIRE said she would rather err on the side of
multiple reporting. Anyone could use this defense so it would
take the teeth out of the bill. For example the three men that
witnessed the Kiva Friedman crime testified to the fact that
Jerry McClain told them he would call 911. Another example is
the 1962 Kitty Genovese case in Boston. She was outside her
apartment and thirty some people witnessed her being stabbed
over 35 times. One purpose of the bill is to increase civic
responsibility. That affirmative defense sets the threshold so
low that anyone could throw out a good defense for that, she
said.
2:23:43 PM
SENATOR WIELECHOWSKI acknowledged that the points are good and
that they are well taken. He brought the issue up for discussion
because someone who witnesses a car accident and doesn't call in
would potentially go to jail.
CHAIR FRENCH commented on the Kitty Genovese and Kiva Friedman
examples. In the '60s it wasn't reasonable to believe that
someone would use a cell phone at the scene of a crime.
Reporting was more difficult because a witness would have to
take an affirmative step to find a telephone. But in a case like
Kiva's he questions whether it is reasonable to expect that a
perpetrator would turn himself in. A jury might buy that
defense, but it could probably be convinced otherwise.
He said Senator Wielechowski is on to something because of the
prevalence of cell phones as well as the concern that a 911
center could be overloaded.
SENATOR HUGGINS expressed the view that the amendment would take
the teeth out of the bill.
2:26:14 PM
SENATOR THERRIAULT said he would be voting no on the amendment.
He is comfortable relying on prosecutorial discretion.
2:26:38 PM
SENATOR WIELECHOWSKI withdrew Amendment 4.
CHAIR FRENCH announced that without objection, Amendment 4 is
withdrawn.
2:27:04 PM
SENATOR THERRIAULT reported that his staff contacted Senator
McGuire's staff to relay his long-standing desire to keep
statutes as clean as possible. He noted that the impact of
Section 1 is to name a section of statute in the statutes. Over
the years he has tried to avoid doing that because it's
difficult to know where to draw the line.
SENATOR THERRIAULT moved Amendment 5 to delete Section 1.
2:28:50 PM
SENATOR McGUIRE objected. She said the precedential value of the
argument is well taken, but on the other hand naming a law as a
result of some egregious event ensures that the story is retold.
Keeping Kiva's Law in the bill reminds people of the story and
illustrates the need for the law.
2:30:28 PM
SENATOR HUGGINS stated support for the amendment and noted that
Senator Therriault has been very consistent in the effort to
keep names out of statute.
CHAIR FRENCH expressed the view that this will forever be known
as Kiva's Law with or without the line in statute.
A roll call was taken on Amendment 5. Senator Therriault,
Senator Huggins and Chair French voted in favor and Senator
McGuire and Senator Wielechowski voted against; therefore,
Amendment 5 carried.
2:31:46 PM
CHAIR FRENCH directed attention to a memorandum from Chief
Assistant Attorney General, Rick Svobodny. It consists of three
pages of legal argument with an attached memorandum to Mr.
Svobodny thru Doug Kossler from Blair Christensen.
He said it should come as no surprise that the Department of Law
has a great number of concerns about this bill. In the second
memorandum Ms. Christensen cites Ohio v. Wardlow [484,
N.E.2d246(Ohio App. 1985]. Chair French said that case jumped
out at him because that fact pattern is seen very frequently in
criminal law.
The fact pattern is a 13-year-old girl who is repeatedly raped
by her mother's boyfriend. In the course of uncovering the
crime, the mother was charged with failure to report and child
endangerment. The State of Ohio Court of Appeals tossed one of
the convictions because of the Fifth Amendment right against
self-incrimination.
CHAIR FRENCH announced his intention to carry the bill over to
allow time to review the memorandum and the facts of the case.
SENATOR WIELECHOWSKI noted that Ms. Christensen's memorandum
also says that "if the statute does not require the reporter to
give their name and some other pertinent information, then the
statute would be difficult to enforce.". He said he raised that
question earlier and the committee might want to give that more
thought.
CHAIR FRENCH asked Mr. Svobodny and Commissioner Monegan if they
would like to present their views.
2:34:40 PM
RICHARD SVOBODNY, Chief Attorney General, Criminal Division,
Department of Law, noted that the packets also contain an email
from Ms. Christensen to Ms. Carpeneti summarizing Kiva's case
from the prosecutor's perspective.
He recapped that the three witnesses did not report the crime,
but if SB 5 had been in effect prosecution would have been
substantially more difficult. By virtue of not reporting the
crime the three witnesses would have committed a C felony
offense and that would give them a Fifth Amendment right not to
testify in the underlying murder trial. Simply admitting to the
judge that they were present at the scene of the crime is a link
in the chain that could result in a conviction.
There are statutory provisions for granting immunity but there
are associated problems. To begin with the witness has probably
been advised not to talk to the police, so the state really
doesn't know what the witness will testify to at trial. If
immunity is granted, the defense has two built-in arguments to
weaken the witness's credibility. On cross examination the
defense will argue that the witness struck a deal with the state
and got immunity. In Alaska immunity is transactional meaning
that the witness has immunity from anything he or she says about
the underlying case and any other case. In closing argument the
defense further challenges the witness's credibility by pointing
out that the state went through the extraordinary process of
granting immunity. He summarized that this will limit the people
who are willing to talk to the police and it will put the state
at a tactical disadvantage at trial.
MR. SVOBODNY said Hazelwood v. State is an example of immunity
for an abettor, a coconspirator, or a perpetrator who reports an
offense. A federal statute required Captain Hazelwood to report
that the Exxon Valdez was aground and leaking oil. The statute
he was relying on had a provision that said he would receive
use, derivative use immunity - anything he said or anything that
flowed from his statement could not be used.
Captain Hazelwood argued that his call triggered the
investigation of the spill and so his call and all the
information found after the call should not be used against him
at trial. In a 3 to 0 ruling the Alaska Court of Appeals agreed.
Therefore, the only thing the state could present was something
that happened before he made the call saying that the Exxon
Valdez was aground.
In a 3 to 1 decision the Alaska Supreme Court overturned the
Alaska Court of Appeals decision saying that Captain Hazelwood's
statement could not be used, but that the spill would have
inevitably been discovered independent of the call. Thus the
state could move forward in the prosecution of the case. He
relayed that two teams of lawyers worked on the case. The first
team worked on the trial while the second worked to ensure that
information that was directly related to Captain Hazelwood's
statement was never transmitted to the first team.
Mr. Svobodny reiterated that the fact that Alaska has
transactional immunity is part of DOL's underlying concern with
SB 5.
2:42:37 PM
CHAIR FRENCH noted that this law that pertains to children has
been on the books for a number of years. At the heart of the
matter is a family member, friend or neighbor who is aware of an
abuse and doesn't make a report until they hear that a criminal
case is evolving. He suggested that the highlighted concern has
played out numerous times in the past few years but it doesn't
appear to have been a problem. He asked if it's correct that it
has not been a problem and if so, why hasn't it been a problem.
MR. SVOBODNY replied it hasn't been a problem because no one has
been prosecuted under that statute.
CHAIR FRENCH questioned why the immunity issue hasn't been
identified as a continuing problem to getting testimony from a
family member, neighbor or other witness.
MR. SVOBODNY relayed that he has been the Attorney General's
immunity designee for seven months and those immunity decisions
have been among the most difficult he has made in 30 years as a
prosecutor. They are best judgment decisions based on the judge
telling him that the witness may have a Fifth Amendment
privilege and the crime for which there may be a privilege is a
misdemeanor, a felony, or a serious felony. If the judge says
the crime is a serious felony, I might think the witness is the
perpetrator, he said.
CHAIR FRENCH asked him to explain the difference between a
felony and a serious felony.
MR. SVOBODNY said under the immunity statute the most serious
are the unclassified felony offenses. Class A felony offenses
might be included, but B felonies are not. An example of a B
felony is perjury under oath.
SENATOR McGUIRE said the argument is waning. If there were to be
a problem then the same argument would apply as the material
witness law, which is a statutory construct that has played out
successfully in other states. The notion is that someone who has
committed a serious crime, or is an accomplice, or a
coconspirator is going to report the crime they committed so
that they can get off.
She suggested that it's not logical to argue that criminals in
Alaska will begin calling to report the gruesome details of
their crimes, but if that were to happen perhaps it's not a bad
goal.
SENATOR McGUIRE pressed Mr. Svobodny to say why having this law
on the books would be potentially dangerous if the mandatory
reporting requirement for serious crimes against children hasn't
been used in the last six years.
MR. SVOBODNY said the concern relates to the fact that a person
who didn't report a murder in a timely manner is guilty of a C
felony offense. Now they have a Fifth Amendment right not to
testify at trial. He noted that although prosecutors might tell
a witness not to worry about being charged with a felony for not
reporting, a defense attorney would tell a client not to talk to
the police.
CHAIR FRENCH stated that his advice would be "tough luck fess
up," which is why he is not in the defense bar.
SENATOR McGUIRE argued that granting immunity would at least get
the witness to the table. Also, she speculated that there was
some ability to threaten the three witnesses in the Kiva case to
force them to testify. With or without this law there will
always be a carrot and a stick, she said.
MR. SVOBODNY reiterated that under SB 5 a witness who doesn't
report would have a Fifth Amendment right not to testify at
trial and he or she probably won't talk to the police.
SENATOR McGUIRE asked if the three witnesses [to Kiva's torture
and abuse] were threatened with some type of crime to force them
to testify.
2:52:44 PM
MR. SVOBODNY said he did not have first-hand knowledge, but the
email strongly suggests that there was no threat.
SENATOR McGUIRE said having this law on the books could open a
conversation about avoiding prosecution for a misdemeanor or
felony in exchange for stepping up to testify and help prove a
charge of torture and brutal murder.
MR. SVOBODNY responded that the problem is that the prosecutor
doesn't know what a witness will say.
CHAIR FRENCH said the problem is that the state can grant
immunity for what it believes is just the failure to report, but
Alaska courts interpret that to be an open grant of immunity. It
would apply to anything that the witness confessions to while on
the stand. He said it's a prosecutor's nightmare and he could
appreciate the strain Mr. Svobodny is under when he makes those
decisions.
2:54:34 PM
SENATOR WIELECHOWSKI asked if anyone has used the current
statute to refuse to give information on the grounds that it may
be self-incriminating.
MR. SVOBODNY replied not under the statute that pertains to
children. He qualified that it may be because prosecutors
haven't enlightened the less culpable bystanders to the fact
that consulting an attorney would be a good idea.
2:56:05 PM
SENATOR HUGGINS commented that this is pushing him further
outside his comfort zone, but he does realize that societal
norms are changing.
MR. SVOBODNY described the material witness law and said it's
not the same thing as SB 5.
SENATOR THERRIAULT brought up the issue of establishing an age
limit regarding the duty to report.
SENATOR McGUIRE said the general rule is the age of majority.
SENATOR McGUIRE encouraged Mr. Svobodny to rethink the
similarity between the material witness law and SB 5. She looks
forward to constructive suggestions from Mr. Svobodny; so far
he's just shot holes in the bill. She referenced the issue of
changing norms and comfort levels and said all changes aren't
necessarily right. Statutes reflect the moral fabric of a
community and lawmakers have a responsibility to think about
that, she said. Finally, she asked if the Department of Law
would like to repeal the current law pertaining to children.
MR. SVOBODNY relayed that footnotes 2 and 4 from his memorandum
have statutory references to hindering prosecution, immunity and
making a false report all of which may reach the same goal as
this bill. Yes, he said, the DOL would like the current law to
be repealed. "We'd probably be better off without it."
CHAIR FRENCH held SB 5 in committee.
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