Legislature(2009 - 2010)BELTZ 105 (TSBldg)

02/24/2010 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
= SJR 21 CONST. AM: INCREASE NUMBER OF LEGISLATORS
Moved SJR 21 Out of Committee
= SB 265 2010 REVISOR'S BILL
Moved CSSB 265(JUD) Out of Committee
= SB 252 FAILURE TO APPEAR; RELEASE PROCEDURES
Heard & Held
= SB 241 POST-CONVICTION DNA TESTING; EVIDENCE
Heard & Held
+ SB 209 STATE COUNCIL ON THE ARTS; REGULATIONS TELECONFERENCED
<Bill Hearing Postponed>
*+ SB 239 IGNITION INTERLOCK DEVICES/DUI/CHEM. TEST TELECONFERENCED
<Bill Hearing Postponed>
+ SB 244 GOVERNOR'S DUTY STATION/TRAVEL ALLOWANCES TELECONFERENCED
<Bill Hearing Postponed>
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 257 YOUTH COURTS AND CRIMINAL FINES
Moved SB 257 Out of Committee
= HB 186 AK FIREARMS EXEMPT FROM FED. REGULATION
Moved CSHB 186(FIN) am Out of Committee
          SB 241-POST-CONVICTION DNA TESTING; EVIDENCE                                                                      
                                                                                                                                
2:41:20 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 241.                                                                             
                                                                                                                                
ANNE  CARPENETI,  Attorney  representing the  Criminal  Division,                                                               
Department of Law (DOL), related  that the governor wanted SB 241                                                               
to include two parts. It  reprises much of the evidence retention                                                               
bill from  last year  and it  establishes procedures  for dealing                                                             
with requests for  post conviction DNA testing that  are based on                                                               
federal  law.  The  intent  is  to achieve  a  balance  to  allow                                                               
somebody who is  innocent to bring a request  for post conviction                                                               
DNA testing because nobody wants  an innocent person to remain in                                                               
jail.                                                                                                                           
                                                                                                                                
2:44:28 PM                                                                                                                    
MS. CARPENETI described the following differences between SB 110                                                                
- the evidence preservation bill - and SB 241:                                                                                  
                                                                                                                                
   · SB 241 clarifies that evidence that is not biological                                                                      
      material must be kept until the end of all possible                                                                       
     litigation in the particular case.                                                                                         
     SB  110   provides  that  evidence  that   is  not                                                                         
     biological material should be  kept until the case                                                                         
     is solved. This would work  but it would depend on                                                                         
     the meaning of "solved."                                                                                                   
   · SB 241 provides that for crimes of sexual assault                                                                          
     in the  first degree and  sexual abuse of  a minor                                                                         
     in the  first degree, the biological  material has                                                                         
     to  be saved  until the  person is  off probation,                                                                         
     parole,   or   any   other  condition   of   their                                                                         
     conviction. It  does not extend  to the  time that                                                                         
     they have to register as a sex offender.                                                                                   
     SB  110 provides  that biological  material should                                                                         
     be kept for the period  of time that the person is                                                                         
     required  to register  as a  sex offender.  People                                                                         
     convicted of  sexual assault  in the  first degree                                                                         
     and sexual  abuse of a  minor in the  first degree                                                                         
     were required to register for their entire life.                                                                           
   · SB 241 and SB 110 have similar remedies but SB
     241  provides  that  a  court  cannot  reverse  or                                                                         
     vacate  a conviction  solely on  the basis  that a                                                                         
     police   department    has   not    followed   the                                                                         
     requirements  of this  new section.  The rationale                                                                         
     is  that  this  is  a   new  burden  and  a  court                                                                         
     shouldn't vacate  a conviction because  the police                                                                         
     department didn't get it right.                                                                                            
   · SB 241 envisions the task force as a group of                                                                              
     people who would adopt  standards of procedure for                                                                         
     the  safe storage  and  retention  of evidence  so                                                                         
     that it  is available for  post-conviction relief.                                                                         
     A  member  of  the  court is  on  the  task  force                                                                         
     because the court sometimes keeps evidence.                                                                                
                                                                                                                                
CHAIR FRENCH asked Ms. Carpeneti to start with Section 6 and                                                                    
walk through the new DNA testing procedure.                                                                                     
                                                                                                                                
2:48:58 PM                                                                                                                    
MS. CARPENETI explained that the current post-conviction relief                                                                 
statutes are amended to say that a person seeking post-                                                                         
conviction DNA testing because of new evidence must proceed                                                                     
under  the new  chapter AS  12.73 rather  than under  the current                                                               
law, AS 12.72.                                                                                                                  
                                                                                                                                
Section 6 provides the following:                                                                                               
   · A person convicted of a felony against a person who has not                                                                
     been unconditionally  discharged may  apply to  the superior                                                               
     court for  DNA testing.  Unconditional discharge  is defined                                                               
     in the bill  as the release from disability  arising under a                                                               
     sentence,  including  probation  and  parole,  but  not  sex                                                               
     offender registration.                                                                                                     
   · A person who wants to make application for post-conviction                                                                 
    relief must submit to the court an affidavit attesting:                                                                     
        · He or she did not commit the offense for which                                                                        
          they were convicted or a lesser included offense.                                                                     
        · He or she did not solicit another person, or aid                                                                      
          and  abet the  commission  of the  offense or  any                                                                    
          lesser  included  offense.   She  noted  that  the                                                                    
          purpose  of the  bill  is to  allow  relief for  a                                                                    
          person who has been mistakenly convicted.                                                                             
        · He or she did not admit or concede guilt in                                                                           
          any official proceeding for the offense that                                                                          
          was the basis of the conviction.                                                                                      
                                                                                                                                
MS CARPENETI suggested  the committee amend the bill  to say that                                                               
a  guilty plea  or  nolo  contendere plea  by  itself  is not  an                                                               
admission  or concession  of  guilt. But  if  someone has  stated                                                               
under  oath to  a parole  board that  he or  she was  guilty that                                                               
should  preclude  the  person from  getting  post-conviction  DNA                                                               
testing. She cited  the Osborne case when that  happened and said                                                               
that  DOL thinks  that people  need  to be  held responsible  for                                                               
things they say under oath in a court of law.                                                                                   
                                                                                                                                
2:53:40 PM                                                                                                                    
Section 6 further provides:                                                                                                     
   · The applicant must try to get an affidavit from his or her                                                                 
     attorney  explaining  the  reasons  for  not  obtaining  DNA                                                               
     testing initially.  She noted  that DOL looks  at this  as a                                                               
     way to encourage  defendants to get DNA testing  at the time                                                               
     that they are charged.                                                                                                     
   · Post-conviction DNA testing would be permanently waived if                                                                 
     a person  made a tactical  decision at trial not  to proceed                                                               
     with  DNA testing.  This requirement  is similar  to federal                                                               
     law.  Other post-conviction  remedies would  continue to  be                                                               
     available.                                                                                                                 
                                                                                                                                
MS. CARPENETI  described the findings  required for the  court to                                                               
order post-conviction DNA testing.                                                                                              
   · The evidence to be tested must be subject to a chain of                                                                    
     custody and retained in a way that ensures that it hasn't                                                                  
     been tampered with and is reliable.                                                                                        
   · The testing must be reasonable and use accepted scientific                                                                 
     practices.                                                                                                                 
   · The applicant must identify a theory of defense to                                                                         
     establish their innocence that is not inconsistent with the                                                                
     theory pursued at trial.                                                                                                   
   · The applicant was convicted and the identity of the                                                                        
     perpetrator was an issue in the trial. She noted that this                                                                 
     is related to the requirement that the theory the applicant                                                                
     is requesting is not inconsistent with the trial defense.                                                                  
   · There is a reasonable probability, in light of the                                                                         
     evidence, that the requested DNA testing could conclusively                                                                
     establish that the person is innocent.                                                                                     
                                                                                                                                
MS.  CARPENETI  said  the  bill   also  specifically  allows  the                                                               
prosecution and defendant to agree  to post-conviction testing if                                                               
it's reasonable.                                                                                                                
                                                                                                                                
2:58:23 PM                                                                                                                    
MS. CARPENETI directed  attention to page 10,  Sec. 12.73.040, on                                                               
timeliness.  There  is  a presumption  that  the  application  is                                                               
timely if  it is  brought within three  years of  the conviction.                                                               
This may be  rebutted if there has been  previous application for                                                               
post-conviction  DNA  testing. There  is  also  a presumption  of                                                               
untimeliness  if the  application is  brought after  three years.                                                               
This   presumption  can   be  rebutted   if  the   applicant  was                                                               
incompetent  and that  contributed  to the  delay  in filing  the                                                               
application, or  for other good  cause. She noted that  the House                                                               
bill says that the presumption can be rebutted for a good cause.                                                                
                                                                                                                                
CHAIR FRENCH said the committee would take the suggestion.                                                                      
                                                                                                                                
MS.  CARPENETI  said the  Innocence  Project  disagrees, but  DOL                                                               
continues to believe  that there is a good reason  for making the                                                               
application  sooner   rather  than   later  if   it's  reasonably                                                               
possible.                                                                                                                       
                                                                                                                                
She  said that  the bill  also amends  AS 44.41.035(b),  the data                                                               
bank.  The  suggestions came  primarily  from  the Department  of                                                               
Public Safety; some is clarifying  language. For example, current                                                               
statutes do not  specifically provide that a person  who has been                                                               
found innocent can get their DNA  removed from the data bank. The                                                               
federal government has said that change must be made.                                                                           
                                                                                                                                
MS.  CARPENETI   reiterated  that   the  taskforce   is  somewhat                                                               
different  than in  SB 110  because  the focus  was on  technical                                                               
issues rather than broader policy issues.                                                                                       
                                                                                                                                
She concluded  saying that  it's a balancing  act to  ensure that                                                               
innocent people  aren't in jail  and at  the same time  make sure                                                               
that  people don't  get another  bite at  the apple  and continue                                                               
recreational litigation.                                                                                                        
                                                                                                                                
CHAIR  FRENCH announced  he would  hold SB  241 in  committee for                                                               
further work.                                                                                                                   
                                                                                                                                
3:01:38 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair French adjourned the meeting at 3:01 p.m.                                                                                 

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