Legislature(1995 - 1996)
03/20/1996 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 appointment. 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 judicial. 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 3(a). 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 process. 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 instances. 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 determination. 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 carried. 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 yes.