Legislature(2007 - 2008)BUTROVICH 205

02/08/2007 03:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 64 DISCLOSURES & ETHICS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 69 NOTIFY CRIME VICTIM OF EXECUTIVE CLEMENCY TELECONFERENCED
Moved SCS CSHB 69(JUD) Out of Committee
+= SB 45 PEACE OFFICER CONVICTED OF MURDER TELECONFERENCED
Moved CSSB 45(JUD) Out of Committee
+= SB 69 CIVIL LEGAL SERVICES FUND TELECONFERENCED
Heard & Held
+= SB 5 FAILURE TO REPORT CRIMES TELECONFERENCED
Scheduled But Not Heard
            SB  45-PEACE OFFICER CONVICTED OF MURDER                                                                        
                                                                                                                              
4:10:44 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 45. [CSSB 45(STA)                                                               
was before the committee.]                                                                                                      
                                                                                                                                
SENATOR  DONALD   OLSON,  sponsor  of  SB   45,  paraphrased  the                                                               
following sponsor statement:                                                                                                    
                                                                                                                                
     SB 45  mandates the  maximum sentence  for first-degree                                                                    
     murder when committed by an on-duty peace officer.                                                                         
                                                                                                                                
     This legislation derives from  the Nome murder of Sonya                                                                    
     Ivanoff, a well-known and well-liked  young girl in the                                                                    
     Bering   Straits   region.    The   investigation   and                                                                    
     subsequent   conviction    of   the    police   officer                                                                    
     responsible  for the  murder  caused  much anguish  and                                                                    
     consternation  for  both  the Ivanoff  family  and  the                                                                    
     region's population in general.                                                                                            
                                                                                                                                
     At the  police officer's  sentencing, the  judge agreed                                                                    
     with  the state  prosecutor's  recommendation that  the                                                                    
     maximum penalty  should be  imposed. His  rationale was                                                                    
     that while state law mandates  the maximum penalty when                                                                    
     a peace  officer is murdered  while acting in  the line                                                                    
     of duty [AS 12.55.125(a)(1)],  first-degree murder by a                                                                    
     peace officer acting in a  position of trust and public                                                                    
     protection was equally egregious.                                                                                          
                                                                                                                                
     SB 45 provides sentencing  parity for the protection of                                                                    
     our  guardians  of civil  law  and  order and  for  the                                                                    
     public trust in their activities and responsibilities.                                                                     
                                                                                                                                
4:12:28 PM                                                                                                                    
CHAIR FRENCH said  he understands that the  concerns that several                                                               
law  enforcement  agencies  expressed during  the  state  affairs                                                               
hearing   were  addressed   through  amendments   made  in   that                                                               
committee.                                                                                                                      
                                                                                                                                
SENATOR  OLSON said  that is  correct. The  state affairs  CS has                                                               
support  from the  Department of  Law, the  Alaska Federation  of                                                               
Natives,   Kawerak,  Inc.,   and   the   Bering  Straits   Native                                                               
Corporation.  Also,  the  Department  of  Public  Safety  has  no                                                               
objection to the amended version.                                                                                               
                                                                                                                                
SENATOR  THERRIAULT  asked  if  police  officers  who  use  their                                                               
position  of  authority to  commit  other  crimes face  increased                                                               
penalties for those crimes as well.                                                                                             
                                                                                                                                
SENATOR OLSON said he did not know.                                                                                             
                                                                                                                                
4:13:47 PM                                                                                                                    
LORETTA BULLARD, President, Kawerak,  Inc., said she assumes that                                                               
CSSB 45(STA) seeks  to ensure that on-duty peace  officers do not                                                               
have to  second-guess using deadly  force when it's  necessary to                                                               
protect the  public or  themselves. She  testified in  support of                                                               
the  concept encompassed  in the  bill, but  she questioned  what                                                               
constitutes clear  and convincing  evidence that a  peace officer                                                               
used his  or her  authority to facilitate  a murder.  Perhaps Mr.                                                               
Svobodny could provide information on that, she said.                                                                           
                                                                                                                                
MS. BULLARD recommended that any  police officer who is convicted                                                               
of premeditated  first-degree murder  should receive  a mandatory                                                               
99-year  sentence   without  possibility  for  parole   or  early                                                               
release. By  virtue of their  position in society and  the public                                                               
trust, police  officers should  be held  to the  highest possible                                                               
standard. If the public trust and  the oath to protect the public                                                               
is  violated,  the  sentence  ought to  be  commensurate  to  the                                                               
violation.                                                                                                                      
                                                                                                                                
4:16:23 PM                                                                                                                    
CHAIR  FRENCH closed  public testimony  and opened  the bill  for                                                               
discussion and amendment from the committee members.                                                                            
                                                                                                                                
SENATOR THERRIAULT  asked if the bill  differentiates between on-                                                               
duty and off-duty.                                                                                                              
                                                                                                                                
CHAIR  FRENCH noted  that there  was  good testimony  on that  in                                                               
state  affairs.  He   asked  Mr.  Svobodny  to   give  that  same                                                               
information.                                                                                                                    
                                                                                                                                
4:17:12 PM                                                                                                                    
RICHARD  SVOBODNY,  Chief  Assistant Attorney  General,  Criminal                                                               
Division,  Department of  Law (DOL),  said in  the Sonya  Ivanoff                                                               
case the conduct was both  on-duty and off-duty. The new language                                                               
includes both  as long as the  peace officer is using  his or her                                                               
authority.                                                                                                                      
                                                                                                                                
CHAIR  FRENCH recapped  a distinction  Mr.  Svobodny drew  before                                                               
about a hypothetical  instance where a police  officer was having                                                               
a  domestic dispute  with his  wife. The  wife took  the couple's                                                               
child  to  the police  station  to  do  a custody  transfer  and,                                                               
totally outside  his role  as a police  officer, he  murdered his                                                               
wife. Although  that would  be a horrible  crime and  the officer                                                               
would be punished, SB 45 does  not address that sort of instance.                                                               
The intent is to get at  the officer who uses the official badge,                                                               
car, or uniform  to facilitate the commission of  murder. That is                                                               
what brings the 99-year sentence to bear, he stated.                                                                            
                                                                                                                                
MR. SVOBODNY responded to an  earlier question and said Mr. Owens                                                               
was  also  charged  with  official  misconduct,  which  is  an  A                                                               
misdemeanor offense. The  court severed that charge  and found no                                                               
need to go  forward with that prosecution after  he was sentenced                                                               
for the murder.                                                                                                                 
                                                                                                                                
SENATOR THERRIAULT asked what would  happen if the police officer                                                               
used his  authority to  gain information  about someone,  but did                                                               
not use  the information until  he was  off duty. "Would  that be                                                               
swept in under this?" he asked.                                                                                                 
                                                                                                                                
MR. SVOBODNY said  a judge would need to be  convinced with clear                                                               
and convincing  evidence that  the officer  used his  position of                                                               
authority to gain  that information. Given that  example it could                                                               
go either way, he said.                                                                                                         
                                                                                                                                
CHAIR FRENCH  asked Mr. Svobodny  to remind the committee  of the                                                               
various standards of proof.                                                                                                     
                                                                                                                                
MR.  SVOBODNY  relayed that  in  criminal  cases there  are  four                                                               
standards of  proof. 1) Probable  cause is  the standard  that is                                                               
something less  than 50 percent  and is  used to obtain  a search                                                               
warrant.  2) Preponderance of  the  evidence means  more than  50                                                               
percent  and  is   the  standard  that  would  be   used  for  an                                                               
evidentiary   call.   3) Clear   and   convincing   evidence   is                                                               
substantially  greater than  preponderance  and is  more than  50                                                               
percent.   It  firmly   establishes  a   position.  4) Beyond   a                                                               
reasonable doubt  is the standard  that would cause  a reasonable                                                               
person to hesitate in the important affairs of life.                                                                            
                                                                                                                                
4:21:34 PM                                                                                                                    
SENATOR HUGGINS stated  for the record that he is  an advocate of                                                               
the death  sentence. From  his perspective  the bill  falls short                                                               
because "singling  out different agencies  of people is a  road I                                                               
would prefer we don't go down too often."                                                                                       
                                                                                                                                
CHAIR  FRENCH  asked  if the  committee  members  had  questions,                                                               
comments or amendments to offer.                                                                                                
                                                                                                                                
SENATOR  THERRIAULT made  a  motion to  delete  Section 1,  which                                                               
names a section in statute.                                                                                                     
                                                                                                                                
SENATOR McGUIRE objected.                                                                                                       
                                                                                                                                
A roll call was  taken on the motion to delete  Section 1 from SB
45. Senators Therriault, Huggins and  Chair French voted in favor                                                               
and Senators  Wielechowski and  McGuire voted  against. Therefore                                                               
Amendment 1 carried.                                                                                                            
                                                                                                                                
CHAIR FRENCH  found no further  amendments and asked the  will of                                                               
the committee.                                                                                                                  
                                                                                                                                
SENATOR  THERRIAULT made  a motion  to report  CSSB 45(JUD)  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s). There being no objection, it was so ordered.                                                                           
                                                                                                                                

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