Legislature(1995 - 1996)

03/20/1996 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
       HB 370 LEGAL SERVICES PROVIDED AT PUBLIC EXPENSE                       
 DEAN GUANELI, Assistant Attorney General, addressed a question               
 raised at a previous committee hearing on when and how indigent               
 people are granted public defender services.  That question arose             
 in the context of several murder investigations, particularly in              
 the Anchorage area, where police were investigating a certain                 
 person.  In the middle of the investigation, before the suspect was           
 charged with a crime, the public defender took on the defense of              
 the suspect and told police not to speak to him.  Several members             
 of the law enforcement community proposed changing the way public             
 defenders are allowed to appoint themselves to represent people               
 charged with criminal offenses.  HB 370 is an attempt to provide a            
 more uniform process for appointing legal representation by                   
 designating the judge to determine whether the person has adequate            
 funds to hire an attorney.  If the police want to talk to a person            
 before that person is charged with a crime, the police can either             
 stop questioning the person, or they can ask the judge to appoint             
 an attorney at that point.                                                    
 Number 444                                                                    
 SENATOR TAYLOR noted Section 3 not only prohibits the agency from             
 self appointing, but also removes the ability of law officers to              
 notify the court or agency of the need for representation. He                 
 questioned why that ability should be removed from police officers.           
 MR. GUANELI stated under current law the question of whether a                
 person has a right to representation depends on a judicial                    
 determination of whether the person is indigent.  Second, this                
 situation often occurs in the middle of the night, and as a                   
 practical matter, to require police officers to call the agency at            
 that time will not likely result in representation until the next             
 day at the arraignment.                                                       
 SENATOR ADAMS questioned whether HB 370 violates art. 1, sec. 11 of           
 the Alaska Constitution, as well as Criminal Rule 5B.                         
 MR. GUANELI replied the constitutional right to counsel has been              
 interpreted to attach when charges have been filed.  HB 370                   
 reflects that constitutional standard.  Criminal Rule 5B provides             
 for the right to immediately communicate with an attorney or a                
 friend after arrest.  That right is also contained in Alaska                  
 statute.  HB 370 does not deprive anyone of that right because it             
 does not prevent anyone from calling an attorney.                             
 Number 398                                                                    
 SENATOR ADAMS commented the cost of finding and hiring an attorney            
 in rural Alaska is very high, especially when the Republican                  
 Majority is trying to cut out Alaska Legal Services.                          
 SENATOR TAYLOR referred to a memo written by the drafter, Jerry               
 Luckhaupt, to Representative Porter, indicating there are a few               
 unique pre-arraignment situations that the Supreme Court has                  
 recognized as a critical stage at which point counsel would have to           
 be provided.  One is a post-arrest line-up situation.  The Supreme            
 Court has decided if the line-up is very close in time to when the            
 criminal event occurred, one would not be allowed counsel, because            
 of the exigent circumstances.  If a line-up was not temporally                
 proximate to the event, the person would have to have counsel                 
 appointed and available.  That differs from the arraignment stage             
 which could be one or two days later.                                         
 MR. GUANELI agreed that is a valid point, and is another example of           
 a situation where, if the police want to undertake that procedure,            
 they would have to request a judge to assign an attorney.  It's               
 similar to a situation when the police might want to take a                   
 statement prior to an arraignment and the person refuses until                
 he/she has spoken to an attorney.  The police have the choice of              
 either foregoing the procedure or asking a judge to make an                   
 SENATOR TAYLOR stated that was the reason for his original question           
 about removing that ability from police officers in Section 3.                
 MR. GUANELI referred to Section 2 and explained the police officer            
 would have to request the district attorney make application to a             
 judge for the appointment for a public defender.                              
 SENATOR TAYLOR replied that in at least two of the communities he             
 represents, the police officer would have to contact the district             
 attorney via a long distance phone call, and the district attorney            
 might have to request a judge in a different town.   Under current            
 conditions, the police officer could ask the local magistrate.                
 MR. GUANELI indicated from a logistical standpoint, he sees no                
 problem in allowing the police to request a local magistrate.  The            
 main emphasis of HB 370 is that the determination of indigence be             
 SENATOR TAYLOR stated it is the procedural aspect he is concerned             
 about.  When the investigation has focussed on a particular                   
 individual and the critical stages of the investigation is reached,           
 all of the decisions about whether or not counsel should be                   
 appointed for the defendant are being made by the people                      
 prosecuting the defendant.  This places a very high ethical burden            
 upon the officer to make certain that critical evidence is being              
 obtained, while simultaneously protecting the individual's                    
 constitutional right to representation.                                       
 MR. GUANELI felt that to be a legitimate point but repeated the               
 police have a choice and can either stop talking to the person, not           
 do a line-up, or get the person an attorney.  If that procedure is            
 not followed, the police officer risks the ability to use evidence            
 that is driving the investigation.                                            
 SENATOR TAYLOR asked Representative Porter if he would object to              
 reinstating the words "law enforcement officers" back into Section            
 REPRESENTATIVE PORTER did not object, and noted he drafted the bill           
 from an urban perspective.                                                    
 Number 306                                                                    
 SENATOR ELLIS pointed out that the co-sponsor of HB 370 presented             
 the measure as a money saving device which followed the                       
 recommendations of the Legislative Budget and Audit Committee, and            
 asked Representative Porter if he agreed with that representation.            
 REPRESENTATIVE PORTER replied he did and that is why the                      
 legislation has joint sponsorship.  A section of the bill requires            
 that the basis of the determination by the court of indigence be              
 put on record.  The problem found by the Budget and Audit Committee           
 is that there is a differential application of the court rule on              
 indigence throughout the state.  In some areas the appointment of             
 a public defender was automatic, regardless of qualifications, and            
 in other areas it is very difficult.  The opinion of the auditors             
 was that there were more people being afforded public defenders               
 than should be.  Putting the basis for the appointment on the                 
 record would provide accountability.                                          
 SENATOR TAYLOR added an earlier provision in the bill required the            
 entire determination be placed on the record, now the bill only               
 requires the court to put the basis for the determination on the              
 record which eliminates recording the full findings and facts.                
 REPRESENTATIVE PORTER stated the court system was opposed to                  
 recording the full determination because it would require the                 
 equivalent of a full extra hearing.                                           
 SENATOR ELLIS asked if savings would result from fewer public                 
 defenders being appointed, or from being appointed later in the               
 REPRESENTATIVE PORTER estimated the number of public defenders                
 appointed when police are desiring an interrogation would not                 
 change considerably.  He hoped a more appropriate determination               
 would be made by the judge at the first formal appearance.                    
 SENATOR ELLIS asked Representative Porter if he agrees with Mr.               
 Salemi's assessment that public defenders self appoint only in rare           
 REPRESENTATIVE PORTER stated from personal experience, he saw                 
 public defenders self appoint often enough to be of concern, and              
 two officers he spoke with in Anchorage said the number of self               
 appointments has increased.                                                   
 SENATOR ELLIS questioned whether Representative Porter was                    
 concerned that if HB 370 is enacted, legal counsel for indigent               
 people at the time of interrogation might not be available.                   
 REPRESENTATIVE PORTER answered the critical stages that appear                
 before the appearance in court where a prime suspect is entitled to           
 counsel are well documented and, for years, law enforcement has had           
 the ability to get an attorney or not proceed.  If an attorney is             
 not available, police officers may not proceed.  If they do, they             
 will lose whatever evidence they have gained as the result of that            
 action, as well as anything they subsequently determine because of            
 that evidence.                                                                
 SENATOR ELLIS contended that by removing the law enforcement                  
 officer's ability to notify a public defender the interrogation               
 comes to a halt, and confession cannot be obtained at the time the            
 suspect is under the most stress.                                             
 REPRESENTATIVE PORTER did not think that the suggestion for change            
 was that the police officer appoint, it is that the police officer            
 may ask the court to appoint, as the court is responsible for that            
 SENATOR TAYLOR surmised the police officers' frustration is caused            
 by the agency's aggressive style of self appointment and by the               
 fact that the public defender agency has self appointed to                    
 represent a previous client on a second offense committed several             
 years later.                                                                  
 REPRESENTATIVE PORTER felt there was no doubt the public defender             
 has an adequate method of getting policy throughout his offices,              
 and if this bill becomes law, it would be known that they could not           
 represent a person merely on the basis that person had been                   
 represented in the past.                                                      
 Number 200                                                                    
 SENATOR ELLIS submitted that HB 370 is based on the assumption that           
 self appointment by the public defenders' office is a common                  
 occurrence, despite testimony both ways.  He asked the committee to           
 get an accurate number of those cases.                                        
 SENATOR TAYLOR moved to amend page 2, line 9, to reinstate the                
 words "the law enforcement officers concerned, upon commencement of           
 detention," thereby deleting "the agency or" only.                            
 REPRESENTATIVE PORTER felt that language refers to more than just             
 advising of rights.  He suggested changing page 2, line 4, to read,           
 "...when the prosecuting attorney or a law enforcement officer                
 requests the court...."                                                       
 SENATOR TAYLOR modified the amendment to include on page 2, line 4,           
 the words, "or a law enforcement officer."   SENATOR ADAMS asked              
 for clarification.  SENATOR TAYLOR stated that change is both on              
 line 4 and on line 10.  There being no objection, the motion                  
 SENATOR ELLIS asked the Chairman to request the number of self                
 appointments from the Public Defenders' Agency.  SENATOR TAYLOR               
 agreed to do so and announced the bill would be held until Friday.            
 SENATOR ADAMS asked if the sponsor recognizes that the only law               
 enforcement officers in rural Alaska are VPSOs.  The sponsor said             

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