Legislature(2011 - 2012)BELTZ 105 (TSBldg)

01/27/2012 01:30 PM JUDICIARY

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Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 89(JUD) Out of Committee
        SB 135-CONTINUANCES IN CRIMINAL TRIALS; VICTIMS                                                                     
1:44:26 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 135.                                                                             
LILA HOBBS, Staff to Senator French, introduced SB 135 as                                                                       
     When Alaska's  Constitution was amended in  1994 to add                                                                    
     section 24 to article 1,  entitled the "Rights of Crime                                                                    
     Victims,"  the state  established important  groundwork                                                                    
     to provide  greater equity within our  judicial system.                                                                    
     I would like  to read two of the  eight provisions that                                                                    
     are enumerated in section 24.                                                                                              
     Crime  victims,  as  defined by  law,  shall  have  the                                                                    
     following rights  as provided by  law: the right  to be                                                                    
     treated with dignity, respect,  and fairness during all                                                                    
     phases of  the criminal  and juvenile  justice process;                                                                    
     in  addition, crime  victims shall  have  the right  to                                                                    
     timely disposition of the case  following the arrest of                                                                    
     the accused.                                                                                                               
     While  both of  these  provisions are  vital steps  for                                                                    
     strengthening victims'  rights, there are  currently no                                                                    
     statutes in  place requiring their  implementation. The                                                                    
     minor changes  to statutes  and court  rules in  SB 135                                                                    
     would  provide  a  means   to  enforce  these  critical                                                                    
     Repeated   delays   prevent   victims   from   reaching                                                                    
     emotional,  physical, and  financial  closure from  the                                                                    
     trauma  that they  suffered as  a result  of the  crime                                                                    
     perpetrated  against them.  Delays  in prosecution  can                                                                    
     also affect  the availability of witnesses,  a victim's                                                                    
     ability  to  recall  important details,  and  they  can                                                                    
     create other impediments to a successful trial.                                                                            
     What is particularly important about  SB 135 is that it                                                                    
     gives  victims   the  right  to  be   notified  of  any                                                                    
     substantial  delays,  and  also allows  them  to  voice                                                                    
     their position  on a motion  for the delay.  Before the                                                                    
     motion has been  ruled on, the judge  must consider the                                                                    
     victims'  position  and  how they  would  be  affected.                                                                    
     Therefore, this bill addresses  the fair and respectful                                                                    
     treatment  of  crime  victims  while  ensuring  a  more                                                                    
     timely  disposition  of   their  case.  Clearly,  these                                                                    
     additions    will     enhance    the    accountability,                                                                    
     transparency, and equity of our judicial system.                                                                           
MS HOBBS provided the following sectional analysis:                                                                             
Section 1 amends AS 12.61.010(a)(2)  by adding a provision to the                                                               
rights of crime  victims, providing that a victim has  a right to                                                               
be  notified by  the appropriate  law enforcement  agency or  the                                                               
prosecuting attorney  of any request  for a continuance  that may                                                               
substantially delay the prosecution.                                                                                            
Section 2  amends AS  12.61.015(a) by modifying  the duties  of a                                                               
prosecuting attorney to include the  duty to inform the victim of                                                               
a pending  motion that may  substantially delay  the prosecution,                                                               
and inform  the court of the  victim's position on the  motion to                                                               
Section  3  amends  Criminal  Rule   45(d)(2),  relating  to  the                                                               
authority  to  grant  a  continuance in  a  criminal  case.  This                                                               
section  adds  a  provision  that requires  that  a  court,  when                                                               
considering  a motion  to grant  a  continuance, may  do so  only                                                               
after considering the victim's interest  in a ruling by the court                                                               
on  the  motion to  continue.  This  section references  the  new                                                               
section of Criminal Rule 45 added in Section 4.                                                                                 
Section 4  amends Criminal  Rule 45, by  adding a  new subsection                                                               
(h)  entitled   "Victim's  Interest   in  Ruling  on   Motion  to                                                               
Continue."  It  provides  that  before  ruling  on  a  motion  to                                                               
continue in  a case involving a  victim of crime, the  court must                                                               
consider the  victim's position  on the  motion to  continue, and                                                               
the effect that a continuance would have on the victim                                                                          
1:49:55 PM                                                                                                                    
SENATOR COGHILL asked for the  practical meaning of "consider the                                                               
victim's position."                                                                                                             
CHAIR FRENCH  said he  would defer  to the  court representative,                                                               
but his  expectation was  that the judge  will pause  to formally                                                               
consider the effect on a victim.                                                                                                
SENATOR COGHILL  said he'd also  like to hear about  the protocol                                                               
for notification.                                                                                                               
CHAIR FRENCH responded  that the folks who work in  this area can                                                               
address the  question, but the  process does  not come to  a halt                                                               
when a victim cannot be notified.                                                                                               
1:51:37 PM                                                                                                                    
LISA  MARIOTTI,  Policy  Director,  Alaska  Network  on  Domestic                                                               
Violence  and Sexual  Assault (ANDVSA),  stated that  the saying,                                                               
"Justice  delayed  is justice  denied."  is  especially true  for                                                               
victims  of  domestic  violence  and  sexual  assault.  It  takes                                                               
tremendous courage, faith,  and belief for a  survivor to prepare                                                               
to confront their  perpetrator in court, and all  too often their                                                               
courage  and  hopes  are  dashed by  endless  delays  in  seeking                                                               
justice. This  can lead to a  loss of hope and  disappointment in                                                               
the criminal justice process.                                                                                                   
SB 135 will  ensure that victims' voices are heard,  and that the                                                               
impact  of   substantial  delays  in  seeking   justice  will  be                                                               
considered.  Equally  important,  it  will give  full  force  and                                                               
effect to  the constitutional  rights of all  crime victims  to a                                                               
speedy trial.                                                                                                                   
1:53:48 PM                                                                                                                    
VICTOR KESTER, Executive Director,  Alaska Office Victims' Rights                                                               
(OVR),  stated that  SB 135  furthers  the spirit  of the  Alaska                                                               
State Constitution, which mandates  crime victims be treated with                                                               
dignity,   respect,  and   fairness.   It   also  clarifies   the                                                               
constitutional  right   to  a  timely  disposition   of  a  case.                                                               
Fundamentally, SB  135 amplifies the crime  victim's voice before                                                               
the  court regarding  a delay  in the  criminal justice  process.                                                               
This will improve the administration  of justice and help victims                                                               
realize dignity,  respect, and fairness  in the  criminal justice                                                               
system.  It  stands to  eliminate  unnecessary  delay that  often                                                               
results in  undue hardship or  injury to crime victims  trying to                                                               
cope with the lengthy prosecution of a criminal case.                                                                           
MR.  KESTER  said   the  OVR  stands  ready  to   work  with  the                                                               
Legislature  and   criminal  justice  agencies  to   promote  the                                                               
interests  of  justice and  further  the  principles of  dignity,                                                               
respect, and fairness for Alaska crime victims.                                                                                 
CHAIR FRENCH  stated that  before moving the  bill he'd  like the                                                               
committee to hear from Nancy  Meade who was reviewing the average                                                               
period  of  time it  takes  to  get a  felony  case  to trial  in                                                               
1:57:50 PM                                                                                                                    
SUSAN SULLIVAN,  Executive Director, Victims for  Justice, stated                                                               
that  SB 135  improves  the standards  of  notification to  crime                                                               
victims  in  requests  for   continuance,  and  reinforces  their                                                               
constitutional  rights to  be present  at proceedings  to address                                                               
the court and see timely  disposition of their case. By requiring                                                               
the court to consider the  victim's perspective, the bill creates                                                               
a mechanism through  which these rights can  be more consistently                                                               
She explained that  Victims for Justice advocates  for victims of                                                               
violent crimes,  including surviving  family members  of homicide                                                               
victims.  In  this role  they've  seen  continuances provided  to                                                               
defendants  in  criminal  cases for  insufficient  and  sometimes                                                               
disingenuous  reasons,   with  no  consideration  given   to  the                                                               
victims. Some cases have taken more  than a decade to go to trial                                                               
because of  the number  of continuances  that were  granted. Such                                                               
long delays  can work to  the unjust  benefit of the  accused and                                                               
the serious disadvantage  of victims. These are  clearly cases of                                                               
"Justice delayed is justice denied."                                                                                            
For many victims  the end of the trial is  a landmark after which                                                               
they  can begin  to  recover, and  unnecessary continuances  only                                                               
delay  the healing  process. It's  appropriate for  the court  to                                                               
extend  the benefit  of the  doubt  to defendants  because it  is                                                               
their liberty  that is at  stake. However, the court  often fails                                                               
to take  into consideration the constitutional  rights of victims                                                               
in these  situations. SB 135 puts  the victim in the  picture and                                                               
supports  the  judge  who  considers  the  victim  when  deciding                                                               
whether or not to grant a  continuance. SB 135 is a modest change                                                               
to existing  statutes and  court rules, but  in a  very important                                                               
way it brings balance to the justice system.                                                                                    
CHAIR FRENCH thanked  Ms. Sullivan for talking  about the tension                                                               
between this  bill and the  defendant's presumption  of innocence                                                               
and right to a speedy trial.                                                                                                    
2:02:01 PM                                                                                                                    
NANCY HAAG,  Executive Director,  Standing Together  Against Rape                                                               
(STAR), stated  strong support  for SB 135  as it  recognizes the                                                               
rights  of crime  victims.  She explained  that  STAR works  with                                                               
victims  of sexual  assault,  and  has a  front-row  seat to  the                                                               
anguish  a victim  feels  as  they prepare  to  testify in  court                                                               
against the person  who assaulted them. Many victims  do not feel                                                               
as though  they are a  survivor until the  trial is over  and the                                                               
person who assaulted them is  sentenced. The build-up to trial is                                                               
emotionally traumatizing, and the victim  pays the toll each time                                                               
a hearing is continued.                                                                                                         
SB 135 may help shorten  the time between arrest, conviction, and                                                               
sentencing, but more importantly it  will place the victim at the                                                               
center  of the  criminal justice  effort. Victims  call on  their                                                               
civic duty  when they report, and  the favor must be  returned by                                                               
offering  a  timely  disposition  of the  case.  This  will  help                                                               
victims to finally  put the assault behind  them, knowing justice                                                               
has been achieved.  At that point, a deeper depth  of healing may                                                               
finally begin.                                                                                                                  
2:04:50 PM                                                                                                                    
TRACEY  WOLLENBERG, Deputy  Director, Appellate  Division, Public                                                               
Defender  Agency, Department  of  Administration (DOA)  expressed                                                               
concern with the  compulsory language in SB  135, particularly in                                                               
sections 3 and  4 regarding Criminal Rule 45. If  the language is                                                               
strictly construed and  the victim is unavailable,  the court may                                                               
be  required to  grant  the  very continuance  that  the bill  is                                                               
designed to prohibit  so it can ascertain  the victim's position.                                                               
As  has  been  noted,  the courts  are  already  constitutionally                                                               
required  to  take  into  account   the  victim's  interest,  the                                                               
victim's  right to  be  treated  with dignity,  and  to a  timely                                                               
disposition. The language compelling  the courts to ascertain the                                                               
victim's position will potentially undermine these concerns.                                                                    
SENATOR  PASKVAN  asked if  this  could  back  the court  into  a                                                               
procedural corner;  if the  judge can't  grant a  continuance, it                                                               
would increase the likelihood that he  or she would have to grant                                                               
a dismissal.                                                                                                                    
MS.  WOLLENBERG   replied  that  was  one   potential  unintended                                                               
consequence,  and another  was  increased post-conviction  relief                                                               
litigation if  the defendant wasn't given  sufficient opportunity                                                               
to litigate issues.                                                                                                             
CHAIR  FRENCH suggested  she  keep in  mind  that the  procedural                                                               
posture is that defendant is trying  to push the trial date back.                                                               
The provision would go into  effect after the defendant has asked                                                               
for a continuance, after which  the judge would decide whether or                                                               
not to  grant the  continuance. He added  that a  provision would                                                               
probably be added  to the bill to address the  problem of what to                                                               
do when a victim can't be contacted.                                                                                            
2:10:49 PM                                                                                                                    
KAREN FOSTER,  victim advocate, described  the tragedy  of having                                                               
her  18-year-old  daughter,  Bonnie  Craig,  brutally  raped  and                                                               
murdered.  The  family waited  12  years  for  the killer  to  be                                                               
identified, and  was then re-victimized  by the State  of Alaska.                                                               
The killer  was identified by a  DNA match in November  2006, and                                                               
was convicted and  sentenced almost 5 years later  on October 31,                                                               
2011. The first  trial date was set for September  2008 to ensure                                                               
adequate  time to  prepare, and  to  eliminate any  reason for  a                                                               
continuance. Very  late in  the process  the defense  requested a                                                               
continuance, and  the judge set a  new date for January  5, 2009.                                                               
The defense couldn't  meet that date either, and  the judge again                                                               
granted a  continuance to May 11,  2009. Before the case  came to                                                               
trial  a  new  defense  attorney was  appointed  causing  further                                                               
delay. The  judge knew the  first defense attorney  was incapable                                                               
of handling the  case, but had no effective means  to control the                                                               
SB  135  will help  identify  problems  earlier and  help  judges                                                               
determine if  a continuance is  actually unavoidable.  Alaska law                                                               
needs to  be changed so  that the constitutional rights  of crime                                                               
victims  are respected  and there  is timely  disposition of  the                                                               
case. Delays re-victimize  the victims. It's time  to balance the                                                               
scales of justice, she stated.                                                                                                  
2:18:50 PM                                                                                                                    
ANNIE CARPENETTI,  Attorney V,  Criminal Division,  Department of                                                               
Law  (DOL), said  it's hard  to  disagree with  what's been  said                                                               
today but  criminal prosecutions  can be  problematic and  take a                                                               
long time. Judges generally take  into account the victim's point                                                               
of view in  granting continuances, but they have  to balance that                                                               
against the  possibility of sending  somebody to trial  who isn't                                                               
ready. A conviction  under that circumstance would  be subject to                                                               
appeal, and that isn't good for anybody.                                                                                        
MS. CARPENETI said she had  practical concerns with Section 1. It                                                               
gives  crime victims  the right  to  notice of  a continuance  in                                                               
appeals  [that  may  substantially  delay  the  prosecution].  On                                                               
average a brief on appeal takes  270 days, so nearly every appeal                                                               
would be  considered a substantial  delay. Crime victims  are not                                                               
currently notified  when there's a  request for a  continuance in                                                               
an appellate  matter, and the  Office of Special  Prosecution and                                                               
Appeals  does  not  have paralegals  to  do  notifications.  This                                                               
provision  would mean  giving  notice when  it  is not  currently                                                               
given, by an  office that doesn't have people who  give notice in                                                               
the appellate arena.                                                                                                            
She stated  agreement with the  defense bar that there  should be                                                               
an escape valve  to accommodate those victims who do  not want to                                                               
be notified.  She offered to  work with the committee  to develop                                                               
solutions to make the bill  more practical. "On the whole though,                                                               
we've always  agreed that  victims have the  right to  be treated                                                               
with dignity," Ms. Carpeneti concluded.                                                                                         
CHAIR FRENCH said  there's generally some period  of time between                                                               
when the defense attorney is ready  and the case actually goes to                                                               
trial, and this measure ratchets down  on that leeway. He said he                                                               
recognizes that  there have  to be some  escape hatches  and he's                                                               
sensitive  that it  will fall  on  the prosecutor  to notify  the                                                               
victim and find their position.                                                                                                 
MS. CARPENETI responded that DOL  does notify the victim when the                                                               
trial date is set and when it's changed.                                                                                        
CHAIR  FRENCH  commented that  this  is  just one  more  message,                                                               
although  continuances  tend to  happen  more  frequently than  a                                                               
sentencing or trial date.                                                                                                       
MS.  CARPENETI reiterated  concern with  the practical  matter of                                                               
giving notice on appeals.                                                                                                       
CHAIR FRENCH said  there may be a way to  exempt it altogether or                                                               
express it differently.                                                                                                         
2:24:40 PM                                                                                                                    
{KEVIN HIGGINS, Attorney, Juneau,  AK, expressed concern with the                                                               
unintended consequences  of the  compulsory language in  SB 135,{                                                               
and the potential for an  ineffective assistance of counsel claim                                                               
if  a  request  for  continuance   was  denied.  He  opined  that                                                               
continuances  increase the  pain tenfold  to the  victim and  the                                                               
increase  costs as  well, particularly  to  the indigent  defense                                                               
bar. He  said Court  Rule 45(d)(2) has  language that  allows the                                                               
victim to be heard and takes  into account the public interest in                                                               
prompt disposition of  criminal offenses, and he  had never heard                                                               
a judge say he or she didn't want  to hear from a victim that was                                                               
in the courtroom, or deny a  continuance in a bail hearing if the                                                               
prosecution wanted more time to notify a victim.                                                                                
2:28:26 PM                                                                                                                    
CHAIR  FRENCH  closed  public  testimony   and  held  SB  135  in                                                               

Document Name Date/Time Subjects
SB 140 Sponsor Statement v.B.pdf SJUD 1/27/2012 1:30:00 PM
SB 140
SB 140 Letter of Support MOA.pdf SJUD 1/27/2012 1:30:00 PM
SB 140
SB 140 Letter of Support ABADA AMHB.pdf SJUD 1/27/2012 1:30:00 PM
SB 140
SB 135 Sullivan, Susan - Letter of Support.pdf SJUD 1/27/2012 1:30:00 PM
SB 135
SB 135 Brown, Peggy - Letter of Support.pdf SJUD 1/27/2012 1:30:00 PM
SB 135
SB 135 Foster, Karen - Letter of Support.pdf SJUD 1/27/2012 1:30:00 PM
SB 135
SB 135 Haag, Nancy - Letter of Support.pdf SJUD 1/27/2012 1:30:00 PM
SB 135
SB 135 Kester, Victor - Letter of Support.pdf SJUD 1/27/2012 1:30:00 PM
SB 135
SB 135 Sponsor Statement.pdf SJUD 1/27/2012 1:30:00 PM
SB 135
SB 135 Sectional Analysis.pdf SJUD 1/27/2012 1:30:00 PM
SB 135
SB 140 Support Article ADN 01.24.11.pdf SJUD 1/27/2012 1:30:00 PM
SB 140
SB 140 Support Article ADN 11.15.11.pdf SJUD 1/27/2012 1:30:00 PM
SB 140
SB 140 Support Article Alaska Dispatch 11.07.11.pdf SJUD 1/27/2012 1:30:00 PM
SB 140