Legislature(2009 - 2010)HOUSE FINANCE 519
03/31/2010 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB316 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 316 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
March 31, 2010
1:44 p.m.
1:44:14 PM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 1:44 p.m.
MEMBERS PRESENT
Representative Mike Hawker, Co-Chair
Representative Bill Stoltze, Co-Chair
Representative Bill Thomas Jr., Vice-Chair
Representative Allan Austerman
Representative Mike Doogan
Representative Anna Fairclough
Representative Neal Foster
Representative Les Gara
Representative Mike Kelly
Representative Woodie Salmon
MEMBERS ABSENT
Representative Reggie Joule
ALSO PRESENT
Quinlan Steiner, Director, Public Defender Agency,
Department of Administration; Anne Carpeneti, Assistant
Attorney General, Legal Services Section, Criminal
Division, Department of Law; Richard Svobodny, Deputy
Attorney General, Criminal Division, Department of Law;
Orin Dym, Manager, Forensic Laboratory, Alaska Crime
Laboratory, Department of Public Safety.
PRESENT VIA TELECONFERENCE
Robert Bundy, Attorney, Anchorage; Barbara Brink,
Anchorage; Bill Oberly, Executive Director, Alaska
Innocence Project, Anchorage; Jeffrey Mittman, Executive
Director, American Civil Liberties Union-Alaska.
SUMMARY
HB 316 POST-CONVICTION DNA TESTING; EVIDENCE
HB 316 was HEARD and HELD in Committee for
further consideration.
HOUSE BILL NO. 316
"An Act relating to post-conviction DNA testing, to
the preservation of certain evidence, and to the DNA
identification registration system; relating to post-
conviction relief procedures; relating to
representation by the public defender; amending Rule
35.1, Alaska Rules of Criminal Procedure; and
providing for an effective date."
1:45:21 PM RECESSED
1:46:27 PM RECONVENED
Vice-Chair Thomas invited public testimony.
QUINLAN STEINER, DIRECTOR, PUBLIC DEFENDER AGENCY,
DEPARTMENT OF ADMINISTRATION, spoke to agency concerns
regarding HB 316. He listed items he thought were
vulnerable to interpretation and which could have a larger
impact on the agency. The first concern was on page 9, line
5, a subsection of the bill requiring the petitioner to
establish that the evidence had been obtained in the
prosecution or investigation. He believed the section could
be interpreted as meaning the investigation of the
particular case; there are cases where evidence sought to
be tested could be obtained from another investigation or
from a third-party suspect.
Representative Gara believed that each item represented
something that someone had to give approval for in order to
get DNA testing. He queried possible circumstances under
which an innocent person would not be able to get DNA
testing under the provision. Mr. Steiner replied that the
section (containing "the evidence sought to be tested was
obtained as part of an investigation or prosecution
described in subsection (1)") could potentially be
interpreted to mean that the evidence sought to be tested
had to be obtained in the particular investigation for
which the person was convicted. He maintained that there
are circumstances in which evidence obtained in other
prosecutions might establish someone's innocence; a person
could be barred from obtaining it under a strict
interpretation of the language. He continued that it is
possible that the language could be interpreted as applying
to anything, because later in the statute, the judge has
authority to order testing from third-party suspects. For
example, another prosecution could occur later in time that
has the same modus operandi as the crime for which the
person was convicted; that might bring in the relevance of
the other person and the other case.
Representative Gara asked for an example of evidence that
could be found in a different investigation that might
prove a person's innocence. Mr. Steiner described a
possible scenario with evidence connected to DNA samples
(such as cigarette butts) in the original prosecution that
was not tested for reasons of relevance; a third person
could become a suspect in the original case, but there
might not be a DNA sample from that person or from the
other crime. Evidence would need to be obtained and tested
from the other case and person to establish the innocence
of the original case being petitioned for.
Representative Gara asked how the problem could be
corrected in the legislation. Mr. Steiner opined that the
section could be deleted without damaging the bill, or
something could be added to the effect that the evidence
sought to be tested would be relevant to the prosecution
described in Section 1.
1:51:10 PM
Mr. Steiner addressed the agency's second concern: Page 9,
lines 20 and 23 have a requirement of identifying a theory
of defense that is not inconsistent with one presented at
trial and also where identity was a contested issue at
trial. He stated that the impact of the provision to the
agency would involve the attorney's discretionary decisions
with regard to what defense to select. He believed it was
possible to have a situation in which self defense was
selected rather than identity even though a client claimed
they were not present. The decision would be considered a
reasonable one by the attorney, and one for which the
client would have no authority to insist upon; the person's
opportunity to claim innocence would be foreclosed through
no fault of their own. The attorney would then be placed in
an ethical dilemma about whether to elect an identity
defense according to the client's wishes or to go with a
viable defense at trial in favor of protecting a later
post-conviction relief application. He was not sure how the
issue would resolve at trial, but the attorney would be put
into a dilemma that does not exist currently in statute.
Representative Gara summarized that an attorney, according
to line 20, could proceed with a defense that turned out
not to be accurate because of DNA evidence showing a
person's innocence, but the evidence could not be used
because of the defense chosen. He did not understand the
concern regarding line 23. Mr. Steiner responded that line
23 says that the applicant was convicted after trial and
the identity of the perpetrator was disputed. An attorney
might run self defense and never dispute identity, even
though it could potentially be contested. He pointed out
that it was somewhat inconsistent to claim self-defense and
also claim not to be there; many attorneys do not want to
run conflicting defenses at the same time.
Mr. Steiner added as a technical matter that the beginning
of the sentence on line 23 had deleted the word "if" from a
prior section. He stated that the word "if" is necessary to
ensure that relief could be obtained following a guilty or
no contest plea. He believed the error was simply a
drafting error.
Mr. Steiner turned to the agency's third concern, related
to page 9, line 25; the standard by which the court would
conclude whether or not the evidence would be helpful. He
opined that it should be interpreted as if the evidence
(the testing) were favorable, then it would support a
theory of defense described in Section 8 that could
establish innocence. He believed the language could be
interpreted as saying that there is a reasonable
probability of a favorable result; this could substantially
increase litigations of post-conviction relief to no
productive end. The cases involved are typically strong
circumstantially, which is why the case is there in the
first place. He noted that a correct reading, however,
would have the potential to be ambiguous. He suggested a
statement of legislative intent. He offered to work on
language that could correct the situation without changing
the substance of the section.
1:55:51 PM
Mr. Steiner informed the committee that the fourth agency
concern about potential interpretation of the statute was
on page 9, line 1, related to admissions of guilt in
official proceedings. He argued that it was possible for an
innocent individual to admit guilt. He referred to studies
related to false confessions; the language would foreclose
the possibility of relief under those circumstances.
Mr. Steiner concluded with the agency's final concern,
found on page 9, line 15, regarding the level of the chain
of custody. The language could be interpreted as requiring
an absolutely secure chain of custody as a prerequisite.
Typically, chain of custody goes to the weight of evidence;
with a somewhat compromised chain of custody, a judge might
be able to sort out whether it was so compromised that the
evidence was made irrelevant. The language could be
interpreted in a manner that could eliminate the
possibility of relief.
Representative Gara asked for Mr. Steiner's recommendation
for addressing contaminated or altered DNA evidence. Mr.
Steiner suggested that one fix could be to delete the
language; the concept could be could be subsumed in line
25, subsection (10) related to supporting an established
defense. The requirement would not be established with
evidence that was compromised to the point of irrelevance.
He did not have language ready for the adjustment, but
offered to think about how to separate the item from
Section 10 and still achieve the same effect of ensuring
the veracity of the evidence.
Representative Gara questioned leaving the substance of the
subsection and cutting out the middle part. He suggested
the language: "the evidence has been substituted,
contaminated, or altered in any manner material to the
proposed DNA testing." Mr. Steiner replied that he would
have to think about it.
Mr. Steiner pointed to a minor technical correction needed
on page 4, line 11, related to required notice before the
destruction of evidence. He detailed that there could be a
series of lawyers involved in a case, and that the trial
attorney could be the least appropriate person to give
notice to. The language could be interpreted as just
requiring notice to the one attorney. He suggesting making
the language plural to include any attorneys involved in
the case. The defendant would be ensured of being provided
notice before destruction of the evidence, so that the most
recent person involved in the case would have access.
2:00:23 PM
ROBERT BUNDY, ATTORNEY, ANCHORAGE (via teleconference),
spoke to concerns regarding the legislation. He reported
that he had been one of the attorneys of record for William
Osborne in a case brought before the U.S. Supreme Court the
previous year. He had experience with and interest in the
topic that he thought could be helpful to the committee. He
noted that he had practiced law for 38 years in Alaska and
that he had been a prosecutor for about half that time.
Mr. Bundy pointed out that sometimes things go wrong for
various reasons. He thought the bill intended to serve
justice through preventing unusual occurrences, but that it
had procedural problems that could make it much more
difficult for someone who has been wrongfully convicted to
demonstrate that fact. He stressed that the bill could make
it almost impossible to rectify the situation.
Mr. Bundy opined that the three-year timeliness requirement
contained in Section 12.73.020, subsection (8) was a
problem. He believed that most of the time the issue would
not be found out right away but years later. People who
know right away take appropriate steps. In the Osborne
case, the technology was not available at the time of the
conviction; the short tandem repeat (STR) DNA testing used
is now known as the "gold standard" of DNA testing.
Mr. Bundy's second concern related to the issue of the
defense being inconsistent with that presented at the
trial. He reported experience in Alaskan cases in which the
defendant claimed not to remember what happened because of
severe intoxication or other reasons. Someone still had to
decide what defense to use. He referred to Mr. Steiner's
statement about deciding self defense when the real issue
was identity. He argued that in cases where the defendant
does not remember, the lawyer might legitimately decide
that self-defense was the right choice. Later on,
biological evidence might emerge that could not be tested
for DNA at the time but that could prove that someone else
committed the crime. Under HB 316, the person whose lawyer
claimed self-defense could never get relief. He did not
think the legislation intended the outcome.
2:05:22 PM
Mr. Bundy opined that the procedural roadblocks being
proposed were based on the idea that people would take
advantage of the system. He referred to experience with the
Osborne case. He did not believe the issue would be people
trying to take advantage of the system. He argued that
people should have a legitimate way to prove innocence
using the gold standard of STR DNA testing. He urged the
committee to look carefully at procedural roadblocks. He
thought the courts could deal with the issues without the
procedural and temporal roadblocks.
BARBARA BRINK, ANCHORAGE (via teleconference), spoke to
concerns about HB 316. She informed the committee that she
had previously been a public defender in Alaska and was
currently an investigator for the federal public defender.
She believed that it was essential to help people who are
factually innocent but wrongly convicted.
Ms. Brink agreed with Mr. Bundy that the legislation had
hurdles that could preclude an innocent person from
obtaining DNA testing rather than helping them to prove
innocence. She opined that some of the roadblocks in the
bill would be more likely to keep an innocent person in
jail. She noted that the state's record is not good: In the
50 years that Alaska has been a state, not one convicted
person has been able to access post-conviction DNA for
testing.
Ms. Brink stated that the first hurdle in the bill was
requiring lawyers at trial to have pre-knowledge about what
technologies might emerge in the future. The requirement of
the theory of defense at trial is not inconsistent with
what is currently being asserted or that the identity of
the perpetrator was disputed at trial requires perfection.
She referred to a recent Illinois study showing that in 21
percent of cases where a conviction was reversed (an
actually innocent person was convicted and then let go),
the cause was ineffective representation. She pointed out
that 90 percent of criminal cases in Alaska are handled by
appointed lawyers because the clients are poor. She
commended the lawyers "in the trenches" who do the work,
but argued that the resources of the system are stacked
against those lawyers. An overworked attorney might fail to
investigate some avenue, find a witness, or they might make
an erroneous judgment under pressure at trial. Convictions
have been reversed in other states after lawyers were found
sleeping or were disbarred after failing to investigate
properly.
2:10:26 PM
Ms. Brink did not want to expect anyone in the system to be
perfect, including eyewitnesses, police, prosecutors,
judges, and juries who have to make decisions months and
sometimes years after the occurrence. She suggested
removing the timeliness hurdle, arguing that there is no
connection between timeliness and innocence.
Ms. Brink suggested striking the section that prohibits
individuals who admit guilt. She noted that in 25 percent
of wrongful convictions, the defendants confess to things
they did not do for a variety of reasons.
Ms. Brink also wanted to remove the burden of placing the
costs of procuring the evidence and doing the initial
testing from the person making the request. She did not
think evidence gathered in an investigation belonged to one
side or the other. She believed there was no basis to show
that a person who can afford testing is more likely to be
guilty.
Ms. Brink voiced concerns about the preservation of
evidence requirements; page 3, line 16 does not require
preservation when it is "impractical." She thought the term
was too broad and vague and not appropriate for rural
Alaska. Further, the language could allow for the
destruction of evidence challenged and filed in federal
district court. "Direct review" is defined in a limited way
on page 9, lines 24 to 29 and could result in no obligation
to save evidence.
2:14:55 PM
Ms. Brink summarized that the whole premise of the hurdles
and roadblocks was the assumption that there are no
innocent people in jail. She reported that 251 people in
the U.S. had been exonerated by DNA testing, including
people who were sentenced to death. The average sentence
served by a person who was exonerated by DNA is 13 years;
by the time the process works, the actual perpetrator has
been free to commit other crimes. She reminded the
committee that 70 percent of exonerated defendants are
members of minority groups. In 40 percent of the exonerated
cases, the perpetrator was identified by DNA testing. There
have been exonerations in 34 states and Washington D.C.;
she looked forward to one in Alaska.
Representative Gara queried the number of people
exonerated. Ms. Brink replied 251.
Representative Gara asked for proposed language to correct
the three issues she had addressed (the word "impractical,"
the issue of attorneys of record, and judicial review). Ms.
Brink answered that she would provide the committee with
language. She noted that all of her concerns related to the
preservation part of the bill.
Vice-Chair Thomas asked her to send the suggestions to Co-
Chair Stoltze's office. Ms. Brink agreed to do so. (March
31, 2010 letter, copy on file.)
Representative Gara queried the size of her case-loads as
public defender. Ms. Brink responded that when she was a
public defender, Alaska exceeded the National Legal Aid and
Defender Association case-load standards in every category,
even though the standards were high (an attorney was not
supposed to handle more than 150 felony cases per year).
2:18:42 PM
BILL OBERLY, EXECUTIVE DIRECTOR, ALASKA INNOCENCE PROJECT,
ANCHORAGE (via teleconference), testified that there were
three areas of great concern to his organization. He
thought a number of the issues could be addressed by the
task force that would be formed by the legislation. He
underlined the importance of dealing with the issues sooner
rather than later.
Mr. Oberly reported the first concern with the timeliness
requirement, which he called "nonsensical." He stressed
that an innocent person will bring a claim as soon as they
have the information and can prepare. He underlined that
DNA evidence is still reliable as time goes by, but that
preparing the cases takes a lot of time.
Mr. Oberly continued that the second major concern of the
Alaska Innocence Project was the section discussing the
admission or confession of guilt as a basis of conviction
in official proceedings. The issue was clarified somewhat
in the House Judiciary Committee, but he felt false
confessions were still not addressed. His organization
wanted the section deleted entirely; if not, there should
be clarification that false confessions are not included in
the restriction. He believed the practical effect would be
to prevent people from bringing claims rather than
balancing claims.
2:22:55 PM
Mr. Oberly turned to the organization's third major
concern. He referred to a March 25, 2010 memo sent to the
co-chair's office from the Alaska Innocence Project (copy
on file). He directed attention to page 9, lines 25 to 30
of HB 316. He disagreed with Mr. Steiner's testimony that
the language could be interpreted in a way that worked. He
believed the language would put a judge in the untenable
position of trying to guess the outcome. He referred to
language that he had sent that was taken from other states
with better language. The concept was that a judge making a
determination would assume that the results would be
favorable to the claimant (the standards set in the
statute, such as a reasonable probability that they would
not have been prosecuted or convicted). The language would
be clearer and has been shown in other states to be a
workable standard.
Mr. Oberly concluded that both nationally and locally there
was not a threat of many cases if the right is given to
some people to show innocence through the use of DNA
testing. None of the states with the statute have
experienced a "floodgate opening" of cases. He agreed with
Mr. Bundy that the flood would have happened in Alaska when
the federal court ruled that everyone has a constitutional
right to have their DNA tested; that did not happen.
Representative Gara referenced the language on page 9,
lines 25 through 30, and queried language used by other
states. Mr. Oberly referred to language he had sent from
the Kentucky statute. He had gone through every post-
conviction DNA testing statute in the country; 18 states
listed have language taking out lines 25 through 31 (page
9) and lines 1 and 2 (page 10) and replacing it with:
"claimant must show a reasonable probability exists that
the petitioner would not have been prosecuted or convicted
if exculpatory results had been obtained through DNA
testing." He believed the language had been working in the
states listed.
2:28:01 PM
Representative Gara encouraged resolution of the language.
JEFFREY MITTMAN, EXECUTIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION-ALASKA (via teleconference), testified that
he agreed with comments by Mr. Oberly of the Alaska
Innocence Project. He stated that for constitutional
reasons, it is important that defendants have the right to
appropriately defend themselves. The concerns of ACLU-
Alaska are also that there are improper obstacles in the
bill as currently drafted; they did not believe costs for
retrieval of samples, improper presumptions of timeliness,
and issues as to whether or not tactical decisions were
made at trial should be obstacles to an individual being
able to prove innocence.
Mr. Mittman spoke in support of including the Alaska
Innocence Project on the task force that would be formed by
the legislation.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW, suggested
looking at the big picture. She informed the committee that
DNA testing is a new procedure used for the purpose of
establishing identity. She stated that wanted to use HB 316
to balance allowing an innocent person bringing a claim for
post-conviction DNA testing against a person who is not
innocent bringing a cause of action because there is
nothing left to do in their case. She assured the committee
that guilty people would make claims for DNA testing.
Ms. Carpeneti noted that the department had worked with the
Public Defender Office, the Office of Public Advocacy, and
the Alaska Innocence Project, and had made many
compromises.
2:33:09 PM
Ms. Carpeneti addressed the issue of timeliness. She
reported that HB 316 did not have a statute of limitations,
which is a date beyond which a claim cannot be made. She
described timeliness as a presumption to encourage people
to bring a claim as early as possible. She did not think an
innocent person should spend any time in jail if they can
bring an application for post-conviction testing. She
stressed that a person bringing an application would not
get an automatic release from jail if the testing was
awarded. The remedy may be a new trial; the victim would
have to go through the trial again, and the whole criminal
justice system would not work as well because of the
passage of time. She defended the standard of expecting an
early claim and pointed out that for any good reason, the
bill would allow the claim to be brought after the three-
year period. She acknowledged that the bar was low, but
argued that there was good reason.
Representative Gara asserted that there would not
automatically be a trial. There would only be a trial if
the DNA evidence requested showed what was claimed. Ms.
Carpeneti agreed. She emphasized the need to get the
evidence and make application as soon as possible, so that
whatever remedy was decided (including immediate release)
could be applied. She underlined that the provision was
just a presumption that could be overcome for any good
reason.
Representative Gara argued that a standard requiring good
cause for not bringing the request earlier could go against
innocent people. He questioned why someone could be denied
for waiting. Ms. Carpeneti replied that other people would
be affected by the claim. She stressed that guilty people
would bring claims; the idea was to bring a claim as soon
as the person knows about it. The person in the scenario
described would have good cause.
2:38:16 PM
Ms. Carpeneti addressed concerns regarding the concession
of guilt. She noted that the House Judiciary Committee had
specified that the entry of a plea of guilty or no contest
at the trial level should not be considered an admission or
concession of guilt. The bill would provide that a person
admitting or conceding guilt in an official proceeding
would be barred from bringing the application for DNA
testing. She stressed that the provision did not apply to
confessions to police or interrogators or to a plea, but to
admissions made in official proceedings, defined by statute
as proceedings in front of the legislature or a court. She
suggested tightening the language by stipulating admissions
or confessions made under oath at an official proceeding.
She believed that at a certain point, people have to be
made responsible for things they say in official
proceedings. She believed Mr. Osborne had conceded guilt to
the parole board; she opined that allowing a person in that
situation to proceed with application would make a mockery
of the whole parole system.
Representative Kelly queried the cost to a guilty person
making the request and abusing the system. Ms. Carpeneti
replied that the bill would require an applicant to file an
affidavit statement under oath that he or she is innocent
of the convicted crime.
Representative Kelly asked whether the state would have to
pay for the proceedings. Ms. Carpeneti responded that most
people in the circumstance described would be represented
by the Public Defender Agency; the vast majority will be
public lawyers. The bill provides that a person who can
afford to pay for gathering the evidence would pay for
that, but the costs are generally negligible.
Representative Kelly expressed concerns.
2:43:05 PM
Representative Gara agreed that it should not be free for
someone to abuse the system, but he did not want to prevent
innocent people from getting evidence because of that. He
suggested penalizing people who falsely file an
application; the problem is that the person is probably
already in jail for life. Ms. Carpeneti agreed; a perjury
prosecution for someone in prison for life would not be
discouraging.
Ms. Carpeneti referred to the test or standards found on
page 9, lines 25 through 30. She reported that the
standards were taken from federal law. In the Osborne case
argument before the Supreme Court, the Innocence Project
conceded that the federal law is the gold standard which
states should aspire to in passing state legislation
addressing post-conviction DNA testing. Other states such
as Kentucky have different tests. She stated that the
language on page 9, lines 25 through 30 means that a
reasonable probability of new evidence that could establish
innocence would be considered.
Ms. Carpeneti differentiated between speculation that
courts do every day and Mr. Oberly's suggestion that other
states have better laws. She maintained that determining
whether a person would have been prosecuted or convicted
was also a speculation. She stated that the department had
chosen the test in HB 316 because it is a better test and
follows the federal test.
Ms. Carpeneti responded to concerns about the
impracticality of the evidence retention provisions in the
bill. She stated that the provisions would represent new
responsibility for workers in Alaska, including taking
samples out of big pieces of evidence. She asserted that a
small police department does not have space to adequately
save a car, for example. Smaller communities would need to
adopt written procedures in order to correctly preserve
samples of evidence.
2:48:55 PM
Representative Fairclough asked whether there could be an
alternative approach related to property being taken away
from a person when doing so would create hardship. Ms.
Carpeneti referred to legislation requiring police
departments to notify parties about property they are
holding at the request of the owners of the property. She
thought it made sense to give police departments some
ability to apply to the parties involved. She added that
the provision requires personal notification, not just a
letter, and allows the return of the evidence if it cannot
be stored.
Ms. Carpeneti agreed with Mr. Steiner that the bill should
say "attorneys" rather than "attorney" so that all the
attorneys that represented a person would be notified.
Representative Fairclough relayed a story about a person
who had property in the form of a vehicle taken away as
evidence for a very long time. The person had to buy
another vehicle that they could not afford. She wanted
hardship to be considered.
Ms. Carpeneti addressed comments about tactical decisions,
stating that the bill originally provided that a person
could not obtain an order for post-conviction DNA testing
if an attorney had made a tactical decision not to test;
the House Judiciary Committee had removed the requirement.
Ms. Carpeneti agreed that lawyers are not perfect, but
asserted that there were other means of post-conviction
relief available for a claim of ineffective counsel. She
pointed out that Alaska's laws allow attorneys at public
expense to present an ineffective defense claim.
Representative Kelly asked whether the measure would be
temporary.
2:53:19 PM
RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, responded that he had hoped
with the bill to get to a point where either the state or
the defense would routinely ask for DNA testing before
trial. He thought that removing the tactical decision issue
would weaken the position because there would be no
incentive; there is an incentive for not asking for the
testing. He did not know the timeline; the faster and
sooner DNA can be done, the sooner one side or the other
would ask before trial. He could not speculate how long
that would take.
Representative Kelly referred to previous discussion
regarding a goal. He asked whether all questions had been
considered and the department was holding the course. Ms.
Carpeneti provided the example of timeliness. The original
bill had two provisions regarding timeliness; it would have
been presumed timely if brought within three years, except
if the applicant was incompetent at a certain stage of the
proceedings, or for good cause. She noted that Mr. Oberly
had objected to the incompetence and the order because
having the good cause following competence inferred too
high a bar. The department took the provision out and said
instead that any good cause could satisfy the presumption
that the request is untimely after three years.
Representative Kelly asked whether the department had
compromised where it wished to and was satisfied with the
bill. Ms. Carpeneti responded that she and Mr. Svobodny had
agreed [with Mr. Steiner] that page 9, lines 5 through 6
(regarding evidence sought being part of an investigation
or prosecution) could be eliminated because the provision
was covered in the chain of custody. They also agreed that
all attorneys that represented a person should be notified
(page 4, line 11). They also agreed that page 9, line 23
should read "if the applicant was convicted after a trial
the identity of the perpetrator was disputed."
Ms. Carpeneti stated that aside from the issues listed, the
department thought the bill was fair.
2:58:22 PM
Vice-Chair Thomas led a discussion clarifying the locations
of the recommended changes in the legislation.
Representative Doogan asked what percentage of cases
involved DNA that could be tested.
ORIN DYM, MANAGER, FORENSIC LABORATORY, ALASKA CRIME
LABORATORY, DEPARTMENT OF PUBLIC SAFETY, responded that
probably every case has biological evidence, although it
may not be detected or the information obtained useful.
3:03:12 PM
Representative Doogan asked what percentage of cases would
have evidence that was important to the case and would be
affected by HB 316. Mr. Svobodny responded that given the
the most liberal application of the legislation, every
possible piece of evidence could apply; any DNA tested
could result in establishing innocence.
Mr. Svobodny recalled that the Innocence Project has said
that 250 people have been exonerated in the past 20 years
throughout the country.
Representative Doogan wanted to know the costs of the
legislation for the bill as it stood before the changes and
the bill after the proposed changes. Mr. Svobodny answered
that he could not give a number, but he could say that 46
states and the federal government have gone through the
same process; every legislature has opted for a balance.
For example: One state only allows post-conviction DNA
testing in capital (death penalty homicide) cases and the
federal government (or California) limits the testing to
felonies where the person is incarcerated in another
jurisdiction or still under the supervision of the courts
by being on probation.
Mr. Svobodny continued that currently, since Alaska does
not have statutes on the matter, the state is open [to
claims] on cases ranging from minor consuming to homicides.
The bill would reduce the universe affected down to crimes
against people. He reported that he had had a case of minor
consuming where the jury wanted to know where the DNA was
from the beer cans the kid had used. He emphasized that
without legislation, the range of cases could be very
broad.
Representative Doogan summarized that currently the state
has a large universe of cases that the issue could apply to
and that the department was trying to limit the universe by
stipulating the kinds of cases post-conviction DNA testing
would apply to, how long [after conviction] application
could be made, and who would pay. He stated concerns. He
thought the problem was that some of the procedural matters
proposed in the bill would restrict people who might be
innocence from proving the fact. He asked how to prevent
restrictions from penalizing innocent people.
3:08:22 PM
Mr. Svobodny replied that currently the state does not have
a procedural process that the legislature has reviewed for
the courts. In one respect, to do nothing would be to keep
the system wide open. He agreed that listing procedural
requirements could restrict the ability of people to apply,
but he thought the proposal in HB 316 represented a fair
balance. He emphasized that legislators create perimeters
in every piece of legislation.
Representative Doogan argued that there were few tests that
provided scientifically accurate results like DNA testing.
He did not think the state should put barriers in the way
of such tests. He believed much of the testimony on the
legislation was related to ways to write the law to prevent
barriers. He expressed frustration.
Mr. Svobodny pointed out that prosecutors want to do their
job and convict guilty people of crimes, not innocent
people. He believed convicting innocent people of crime
resulted in three tragedies: first, to the person
convicted; second, to the victim; and third, to society, as
the guilty person would still be at large. He agreed that
the department was suggesting that procedures be put in
place to make the system work in balance. He argued the
system would not work if anyone who asked could get post-
conviction DNA testing for any crime, including drunk
driving.
Mr. Svobodny stressed that context is everything in a DNA
case; the fact that there was a murder in a room and a
person's DNA was found in the same room does not mean the
person was the murderer.
3:12:34 PM
Representative Gara believed the most important part of the
bill was on page 9, line 10, regarding having to show that
the DNA evidence is meaningful and could prove innocence;
the problem was roughly 15 other roadblocks to go through
before getting the right to do that. He wanted language
that worked to show innocence without a person going
through all the "hoops." He was offended by talk about the
victim; he did not believe any victim wanted innocent
people in jail.
Ms. Carpeneti responded that many of the hoops were
procedural, such as filing papers. She thought it did make
sense to require a person to file an affidavit stating
their innocence. She argued that a person in the situation
had had many opportunities while going through the process
of the trial, and appeal, and beyond. She maintained that
there are many protections in Alaska law to make sure a
person is convicted of the right crime. She asked why
society should spend resources if a person was not willing
to swear that they were innocent. She detailed that
paragraph 4 was removed, and paragraph 5 was changed by the
House Judiciary Committee, so there were not a lot of
standards. She defended the other standards as reasonable.
3:17:35 PM
Representative Gara stated that he would work on amendments
because he felt some of the standards were unreasonable.
For example (page 9), he protested the need for an
appropriate chain of custody for evidence that was valid
and had not been altered or contaminated. Ms. Carpeneti
responded that a chain of custody evidence requirement is
necessary because evidence unconnected to the crime could
be brought in. She thought the word "ensure" could be
changed to "show" to make it less difficult, but she
stressed that there had to be some way to demonstrate that
evidence came from the crime and was preserved in a way
that made it relevant.
Representative Gara disagreed. New DNA evidence could show
up that could prove innocence, but could be made irrelevant
by a bad chain of evidence; the evidence itself would still
be good. Ms. Carpeneti responded that there would be chain
of custody if there were testimony showing how the evidence
was obtained.
Representative Gara asked whether there was a way to write
the "reasonable probability" section (page 9, line 25)
better. Ms. Carpeneti responded that she would think about
it.
HB 316 was HEARD and HELD in Committee for further
consideration.
3:21:06 PM
ADJOURNMENT
The meeting was adjourned at 3:21 PM.
| Document Name | Date/Time | Subjects |
|---|---|---|
| FINANCECOMMITTEESTANDARD.doc |
HFIN 3/31/2010 1:30:00 PM |
HB 316 |
| HB 316 Gov.Trasmittal Letter.pdf |
HFIN 3/31/2010 1:30:00 PM |
HB 316 |
| HB 316 AK Innocence Project ELETTER.doc |
HFIN 3/31/2010 1:30:00 PM |
HB 316 |
| HB 316 Sectional.pdf |
HFIN 3/31/2010 1:30:00 PM |
HB 316 |
| HB 316 Amendments (5) Gara.pdf |
HFIN 3/31/2010 1:30:00 PM |
HB 316 |
| HB 316 Letter.pdf |
HFIN 3/31/2010 1:30:00 PM |
HB 316 |