Legislature(1995 - 1996)

01/24/1996 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        January 24, 1996                                       
                           1:10 p.m.                                           
 MEMBERS PRESENT                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
 MEMBERS ABSENT                                                                
 Representative Bettye Davis                                                   
 COMMITTEE CALENDAR                                                            
 *HOUSE BILL 255                                                               
 "An Act creating the crime of negligent vehicular homicide."                  
  - WITHDRAWN BY SPONSOR                                                       
 *HOUSE BILL 370                                                               
 "An Act relating to the provision of legal services to criminal               
  - PASSED OUT OF COMMITTEE                                                    
 (* First public hearing)                                                      
 WITNESS REGISTER                                                              
 LT. CHRIS STOCKARD                                                            
 Planning and Research Division                                                
 Department of Public Safety                                                   
 450 Whittier Street                                                           
 Juneau, Alaska  99811-1200                                                    
 Telephone:  (907) 465-4322                                                    
 POSITION STATEMENT:  Testified in Support of HB 370                           
 RANDY WELKER, Legislative Auditor                                             
 Legislative Audit Division                                                    
 P.O. Box 113300                                                               
 Juneau, Alaska  99811-3300                                                    
 Telephone:  (907) 465-3830                                                    
 POSITION STATEMENT:  Provided information about HB 370                        
 ART SNOWDEN, II, Administrative Director                                      
 Alaska Court System                                                           
 303 K Street                                                                  
 Anchorage, Alaska  99501-2084                                                 
 Telephone:  (907) 264-0547                                                    
 POSITION STATEMENT:  Provided information about HB 370                        
 JOHN SALEMI, Public Defender                                                  
 900 West Fifth Avenue, Suite 200                                              
 Anchorage, Alaska  99501-2090                                                 
 Telephone:  (907) 269-5476                                                    
 POSITION STATEMENT:  Testified against HB 370                                 
 MIKE KORKEL, President                                                        
 Alaska Peace Officers Association                                             
 1979 Peger Road                                                               
 Fairbanks, Alaska  99709                                                      
 Telephone:  (907) 451-5316                                                    
 POSITION STATEMENT:  Testified in support of HB 370                           
 DEAN GUANELI, Chief Assistant Attorney General                                
 Criminal Division                                                             
 Department of Law                                                             
 Room 717, Dimond Courthouse                                                   
 Juneau, Alaska  998111-0300                                                   
 Telephone:  (907) 465-4043                                                    
 POSITION STATEMENT:  Provided information about HB 370                        
 PREVIOUS ACTION                                                               
 BILL:  HB 255                                                               
 SHORT TITLE: NEGLIGENT HOMICIDE BY AUTOMOBILE                                 
 SPONSOR(S): REPRESENTATIVE(S) OGAN, Kohring, Bunde                            
 JRN-DATE     JRN-PG             ACTION                                        
 03/15/95       742    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 03/15/95       742    (H)   JUDICIARY, FINANCE                                
 04/05/95      1039    (H)   COSPONSOR(S): KOHRING, BUNDE                      
 04/12/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 04/12/95              (H)   MINUTE(JUD)                                       
 04/21/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 04/21/95              (H)   MINUTE(JUD)                                       
 04/22/95              (H)   JUD AT 11:00 AM CAPITOL 120                       
 04/22/95              (H)   MINUTE(JUD)                                       
 01/24/96              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB 370                                                               
 SPONSOR(S):  REPRESENTATIVE(S)  MARTIN, Porter, Toohey                        
 JRN-DATE     JRN-PG             ACTION                                        
 12/29/95      2363    (H)   PREFILE RELEASED                                  
 01/08/96      2363    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/08/96      2363    (H)   JUDICIARY, FINANCE                                
 01/24/96              (H)   JUD AT 01:00 PM CAPITOL 120                       
 01/24/96      2528    (H)   COSPONSOR(S):  TOOHEY                             
 ACTION NARRATIVE                                                              
 TAPE 96-7, SIDE A                                                             
 Number 000                                                                    
 CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting            
 to order at 1:10 p.m.   Members present at the call to order were             
 Representatives Joseph Green, Con Bunde, and Cynthia Toohey.                  
 Members absent were Al Vezey and David Finkelstein.  Representative           
 Finkelstein arrived at 1:16 p.m. and Al Vezey arrived at 1:30 p.m.            
 HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE                                   
 CHAIRMAN PORTER announced that there were two bills scheduled to be           
 heard by the committee, HB 255, concerning negligent homicide was             
 withdrawn by the sponsor and HB 370, a provision for legal services           
 for criminal defendants was to be addressed.                                  
 HB 370 - LEGAL COUNSEL FOR ACCUSED CRIMINALS                                
 CHAIRMAN PORTER, Co-Prime Sponsor gave a short synopsis of HB 370,            
 which provides for legal services through Office of Public Advocacy           
 (OPA) and the public defender by appointment of the court.                    
 Number 130                                                                    
 LT. CHRIS STOCKARD, Planning and Research Division, Department of             
 Public Safety, testified that he was asked by Deputy Commissioner             
 Dell Smith to address the committee and express that Public Safety            
 supported this legislation.  He stated that there had been problems           
 in the past with self-appointment of the public defender to                   
 criminal suspects.  Lt. Stockard cited an extreme example of a                
 defendant who while in the course of a felony act was self-                   
 appointed by the public defender's office and asked that the police           
 not question the this person.  He pointed out that the public                 
 defender could not have determined at that time whether the suspect           
 was even indigent and unable to afford an attorney.                           
 Lt. Stockard said the department was looking for more balance in              
 the appointment of attorneys than what currently exists.                      
 Number 256                                                                    
 REPRESENTATIVE CON BUNDE asked for clarification that the self-               
 appointment Lt. Stockard referred to was conducted by the public              
 defender's office without the judicial system's involvement.                  
 LT. STOCKARD said that this was what he meant.                                
 REPRESENTATIVE CYNTHIA TOOHEY asked if there was a specific time              
 frame an attorney would need to be appointed before a defendant is            
 deemed indigent.  How long does it take to verify that someone is             
 unable to afford representation?                                              
 LT. STOCKARD said from his interpretation of the bill that an                 
 investigation is not required, but a finding by the court as to               
 whether or not they believe a defendant under oath cannot afford an           
 attorney.  They could require an additional investigation if they             
 were unable to initially determine someone as indigent.  He thought           
 perhaps this was something Art Snowden could speak to.                        
 Number 360                                                                    
 RANDY WELKER, Legislative Auditor, Legislative Audit Division,                
 stated that an audit was conducted on the appointment process of              
 public defenders and OPA.  They concluded that there were no set              
 guidelines or consistency in the appointment of public defenders in           
 the court system.  They found that different methods were used to             
 determine eligibility from district to district, within districts,            
 between judges, et cetera.  The auditor's department recommended              
 that there be more standardization of guidelines and criteria                 
 established regarding who is eligible for public defender services            
 and who is not.                                                               
 MR. WELKER said that the court system has a pre-trial service in              
 Anchorage and Fairbanks, albeit Mr. Welker added, they are not                
 staffed adequately, but the service in Fairbanks specifically does            
 interview people before they enter the court system.  Outside of              
 Fairbanks and Anchorage an interview by the judge at arraignment is           
 conducted and there are no standardized guidelines to determine               
 someone's indigence.  Because of this and the lack of follow up, it           
 can't be said with certainty that the public defender's services              
 are provided to only indigent defendants.  There are no controls in           
 place to support this system.                                                 
 MR. WELKER suggested that the courts conduct a more deliberate and            
 formal process of reviewing a defendant's financial situation on a            
 case by case basis.                                                           
 Number 585                                                                    
 REPRESENTATIVE JOE GREEN asked if there were any suggestions for a            
 reasonably low cost method to establish this consistency and                  
 MR. WELKER stated that the department, at the request of                      
 Representative Martin, was still looking at how other states                  
 conduct their eligibility interviews.  He pointed out that some               
 states have a stronger determination system.  The state of                    
 Washington, for example, has a two tier determination system in               
 statute where a person is deemed indigent automatically if they               
 receive AFDC (Aid to Families with Dependent Children).   The                 
 second tier allowed for a determination that if a person was                  
 indigent, they might still be capable of contributing to their                
 legal fees.  He cautioned that if standardized criteria was spelled           
 out, it would not necessarily apply to all areas of the state.                
 For instance, a judge could determine that a commercial fishing               
 permit was an asset and other courts might not.                               
 REPRESENTATIVE GREEN asked if there was a federal guideline which             
 determines a poverty level.  He said that this may not be a cure              
 all, but it could be defensible.                                              
 MR. WELKER believed that some of these standards would be good                
 starting points and perhaps legislation or the courts providing for           
 exceptions to income could work.  The more criteria created, the              
 more intense the effort to document income becomes.  He didn't know           
 if these criteria could be required of a judge.  He again pointed             
 out that there were four people combined in pre-trial services in             
 Anchorage and Fairbanks who specifically are responsible to make              
 eligibility determinations.  The Fairbanks' staff appear to be                
 busier than the one in Anchorage.  It takes resources to                      
 accommodate the criteria established in a pre-trial eligibility               
 Number 890                                                                    
 ART SNOWDEN, II, Administrative Director, Alaska Court System,                
 stated that Mr. Welker and his department did a good job in their             
 auditing efforts.  Not all of the defendants' records were made               
 available due to confidentiality, but if Mr. Welker wished to                 
 review these records, Mr. Snowden would clear them for him.  He               
 added that the auditors did the best they could with anecdotal                
 MR. SNOWDEN said the court system has only four people statewide to           
 conduct eligibility screenings.  They do check all available                  
 information.  Sometimes people will sign affidavits under oath.               
 This is about all they can do as a requirement.  Most of the people           
 assigned to the public defender's office are indigent.  If some of            
 these individuals as financially capable slip through the cracks,             
 the department is not perfect.                                                
 MR. SNOWDEN added that it's mandated by rule that the public                  
 defender must reassign someone who is not indigent.  There is also            
 a rule which states that if someone is not indigent, but because              
 the trial, is advanced and a reassignment could interfere with the            
 trial the defender can continue with the case.  But, it is required           
 that the defendant pay for full compensation of legal services.               
 MR. SNOWDEN said there are no standards to determine someone's                
 indigence.  For example, in Barrow; There are no attorneys and if             
 someone got arrested, even for a minor crime, how much money would            
 it cost to fly an attorney in from Anchorage?  Almost anyone in               
 Barrow, under this standard, could be considered indigent.                    
 Indigence is a floating concept, for example, someone may not be              
 indigent for a shoplifting charge, since the fees would probably be           
 minimal.  But, if someone murdered an individual, they might not be           
 able to afford representation under these circumstances.                      
 MR. SNOWDEN said he would concede that 400 people might slip                  
 through the system as indigent who really aren't, although he                 
 didn't think this was true.  What would happen if these 400 people            
 were removed from the public defender's over-worked staff, nothing.           
 The same number of public defenders are needed, the budget couldn't           
 be cut, et cetera.  Beyond this, if a defendant was not appointed             
 and they came in pro-per it would take this individual forever to             
 get through the system.  Eventually, the public defender would have           
 to protect their constitutional rights, which would cost time and             
 MR. SNOWDEN submitted to the committee that the municipalities in             
 the state are costing the tax payers more than the public                     
 defender's office by representing non-indigent defendants.  For               
 example, Anchorage and Juneau pay for their own public defenders              
 Any other place in the state does not want to pay for their                   
 municipal prosecutor.  They charge everyone under state statutes              
 and make the district attorney (DA) do it, therefore, the statewide           
 public defender has to defend cases.  He stated that this is not              
 fair.  If these laws are passed, putting the burden back on the               
 municipalities for misdemeanors, more money would be saved as                 
 versus stepping up the screening process for indigent defendants.             
 MR. SNOWDEN referred to Section 5 of the bill, more specifically              
 the language, "The determination shall be made by the court on the            
 record and shall set out the basis for the finding that the person            
 is indigent."  It was determined that the committee substitute (CS)           
 had yet to be adopted.                                                        
 Number 1158                                                                   
 REPRESENTATIVE TOOHEY moved to adopt CS work draft 9LS1352-C                  
 1/19/96.  There being no objection, CSHB 370(JUD) was adopted.                
 Number 1188                                                                   
 MR. SNOWDEN suggested for argument sake, that this examination on             
 the record regarding indigence, could take fifteen minutes.                   
 Presently, in Anchorage, the DA is arraigning 22,000 cases a year             
 and in Fairbanks close to 10,000 a year.  If someone took 15                  
 minutes per arraignment when processing 80 cases per day, he                  
 suggested that the legislature should probably give the court                 
 system ten more judgeships.  He added that this indigence test can            
 be applied in rural settings, but he would like to see a related              
 amendment, in writing, that a judge would approve of this                     
 procedure.  Mr. Snowden thought that there was no way an additional           
 fifteen minutes per arraignment could be added in Anchorage, per              
 CHAIRMAN PORTER stated that in discussing this legislation he                 
 recognized the complexity of the general issue of adding an                   
 additional burden to the judges by requiring a standardized                   
 screening procedure.  The intent of this legislation was to point             
 out to the court that they could do a better job of screening with            
 the resources that they have.  Within this context, Chairman Porter           
 asked Mr. Snowden to work with Mr. Stockard to come up with a few             
 words to enhance the language regarding the written procedure of              
 screening while also recognizing the impetus of the entire bill.              
 MR. SNOWDEN pointed out that people do sign affidavits, their                 
 incomes are researched, et cetera, by people outside of the judge's           
 position.  In response to the audit, he suggested that a year long            
 study be undertaken to look at each defendant appointment and                 
 create some chronology to reflect how the system works.  He said              
 that if they came up with additional suggestions on how things                
 could be done differently, they would.                                        
 Number 1342                                                                   
 REPRESENTATIVE TOOHEY asked if permanent fund checks were secured             
 in instances of indigence.                                                    
 MR. SNOWDEN said that everyone who is appointed to a public                   
 defender by a supreme court rule and statute, has their permanent             
 fund taken.  A recommendation was made in the audit, which says               
 everyone should forfeit their permanent fund check whether or not             
 they're found guilty.  In the original bill which established this            
 system of taking permanent fund checks, the legislature chose to              
 only seize permanent fund checks if that person was found guilty.             
 The court system does think that everyone should have to forfeit              
 their permanent fund check regardless, since any representation               
 costs money regardless of the verdict.  He suggested that the                 
 legislature revisit this issue.                                               
 REPRESENTATIVE TOOHEY suggested that maybe an amendment addressing            
 the permanent fund takings could be incorporated into this present            
 Number 1395                                                                   
 REPRESENTATIVE BUNDE said he understood Mr. Snowden's concerns and            
 practicality regarding this indigence procedure, the appearance of            
 fairness is very important.  He felt as though 20 people slipping             
 through the cracks was too many, much less the 400 estimate which             
 Mr. Snowden outlined previously.  Representative Bunde pointed out            
 that tightening the standards for this indigence review was not               
 going to balance the budget, but the whole system of justice is               
 predicated on the appearance of fairness.                                     
 MR. SNOWDEN  wished to make it very clear that he threw out the               
 number of 400 because it was the highest number he could think of.            
 There are not 400 people who slip through the system.                         
 REPRESENTATIVE BUNDE understood that this number was just a                   
 hypothetical number and that they really don't know how many people           
 slip through, but even this fact undermines the confidence in the             
 system.  He referred to the information Mr. Snowden outlined as the           
 standard procedure in statute when it was determined someone really           
 wasn't indigent and asked how often this happens.                             
 MR. SNOWDEN said Representative Bunde would probably need to ask              
 the public defender's office, but he said he had not heard of                 
 anyone re-assigning a case, which in his view meant that there are            
 not many people slipping through the cracks.  Mr. Snowden asked,              
 why it would be in the best interest for the public defender or               
 OPA, who are already overworked, to defend people they don't have             
 to defend.  This reassignment of a non-indigent individual is                 
 mandated by rule that requires the public defender to return any              
 case where they find an individual is not indigent.                           
 Number 1553                                                                   
 REPRESENTATIVE AL VEZEY asked that Mr. Snowden clarify for the                
 committee the difference in the duties of the public defender as              
 versus the duties performed by Public Advocacy.                               
 MR. SNOWDEN generally qualified the overall differences between the           
 two agencies.  In the past, there was always a public defender in             
 the Executive Branch.  Any time there were multiple defendants,               
 they would defend the first one, then the court would have to find            
 attorneys to defend the others.  This remedied any conflict                   
 problems.  The legislature created the office of public advocacy to           
 take all of these surplus defendants in order to represent them               
 personally through this office or to contract out the defendants to           
 private attorneys.  The public advocacy office represent children's           
 cases and other indigent types of cases.                                      
 Number 1620                                                                   
 JOHN SALEMI, Public Defender, when called upon to testify, defined            
 what he saw as a problem with the bill, more specifically self-               
 appointment of the public defender.  Of the 18,000 cases which                
 Anchorage processes, 99.9 percent of these individuals are                    
 appointed by the court system.  The number of individuals who are             
 non-indigent make up a very small fraction of this case load.  He             
 wished to point out that the example used by Mr. Stockard was                 
 inaccurate.  The facts were not entirely correct as stated.                   
 MR. SALEMI understood that the intent of this legislation was that            
 when the public defender self-appoints themselves, this potentially           
 creates problems for the police, which is inconsistent with good              
 public safety, policy and practice.  He frankly told the committee.           
 There were instances where he had informed people before being                
 appointed by the court about their constitutional right not to                
 cooperate with the police for self-incriminating reasons.  This was           
 only in instances where it seemed these people had been involved in           
 some criminal activities.  He pointed that was obligated to this as           
 a lawyer.                                                                     
 The perception that the public defender's stock advise is that                
 these individuals should just keep their mouth shut and go about              
 their business is dead wrong.  Mr. Salemi pointed out that this               
 would be unethical, not good advise and possibly considered                   
 MR. SALEMI added that this bill in all instances would eliminate a            
 public defender from self-appointing themselves.  The effect of               
 this is would be the denial of people of modest or little means               
 access to lawyers when they have a legal question regarding the               
 criminal system.  The only other time these individuals could get             
 an answer to their questions would be after they've already been              
 charged, which might be too late for them.  A prosecutor or a                 
 police office may not always be in a good position to know that               
 somebody needs a lawyer, as well.                                             
 MR. SALEMI further stated that by passing this law, people who can            
 afford a lawyer would not be affected.  To some extent, a two tier            
 system of justice will be created where poor people are denied                
 access to legal services and people who have means still go out and           
 get good advise from lawyers.  This bill would create a greater               
 divide between poor people and people of means.  Two kinds of                 
 justice would result.  Besides this philosophical or policy                   
 argument, Mr. Salemi wished to discuss the practical impact of this           
 MR. SALEMI said there is a practical benefit to having public                 
 defender attorneys involved early on through a self-appointment               
 process.  He said he gets lots of calls from people who have not              
 been appointed.  Some of these people will never have cases, but              
 need legal advise.  Mr. Salemi refers lots of people to the police            
 and tells them to take a polygraph test where it has been                     
 suggested.  He also gets calls from people who are out of state and           
 want to turn themselves in, but don't know how to go about it.  He            
 also gets lots of calls from victims and refers them to the                   
 district attorney's office or the police.  When people come to his            
 office he doesn't know what their problem is and if he's unable to            
 self-appoint he'll never know what their problem is.                          
 MR. SALEMI has helped people to turn state's evidence.  He cited              
 the example of multi-cultural people who are intimidated by the               
 system.  These people are reluctant to go to law enforcement,                 
 unless they are given some assurance, that this is how the system             
 works.  The public defender facilitates these people to the justice           
 system and to the law enforcement community.                                  
 Number 2150                                                                   
 MR. SALEMI gets numerous calls from people who vaguely think they             
 might be involved with a criminal situation.  They want not to be             
 involved with the criminal justice system, but think they have                
 information they should provide.  If he explains to them the                  
 concept of accomplice liability and it turns out they aren't                  
 accomplices, then he has given them the freedom to walk into a                
 police station to translate what they know about a criminal                   
 situation.  It's less likely that these individuals will come                 
 forward if they believe they can be implicated somehow.                       
 MR. SALEMI used the example of a woman with children who had a bad            
 crack habit.  She was afraid her children would be taken away if              
 she looked into treatment.  After Mr. Salemi explained that she               
 wouldn't go to prison for ten years because she had no prior                  
 criminal convictions and that there was a possibility if she went             
 for resident treatment that this could count towards her jail time.           
 This person indicated to Mr. Salemi that she was much relieved and            
 that she thought she could face all the requirements ahead of her             
 for treatment.                                                                
 Number 2294                                                                   
 MR. SALEMI pointed out that the public defender provides a service            
 to individuals, not all of whom are criminals who deserve to be in            
 prison.  There are distinct benefits to law enforcement and                   
 prosecution as well.  He also didn't know if this was an                      
 unconstitutional bill in it's present form.  He pointed out that it           
 might generate constitutional attacks on fifth amendment grounds,             
 Miranda grounds, sixth amendment grounds and on equal protection.             
 MR. SALEMI noted that there are other practical problems with this            
 legislation.  The public defender has a 24-hour answering service,            
 most times for Driving While Intoxicated (DWI) offenses.  These DWI           
 individuals are entitled to consult an attorney before they blow              
 into a Breathalyzer.  The police officer will read a suspect a                
 complied consent before they do so, and if the suspect chooses not            
 to blow into this Breathalyzer, they could loose their license and            
 they can be charged criminally for refusal.  If they have doubts              
 about this procedure, this consent allows them the option of                  
 calling an attorney first.                                                    
 Number 2460                                                                   
 MR. SALEMI cited the Alaska Criminal Rule 5, section (b) which                
 says, "Immediately after arrest the prisoner shall have the right             
 forthwith to telephone or otherwise to communicate with both an               
 attorney and any relative or friend."  He pointed out that the                
 committee with this new legislation is attempting to amend this               
 Rule 5.                                                                       
 MR. SALEMI added as a final point that an attorney has a right                
 based on professional canons, to provide this type of referral                
 service even though a court, prosecutor, or a law enforcement                 
 officer doesn't necessarily think an individual needs a lawyer.  He           
 then read from a commentary from the Alaska Rules of Professional             
 Conduct for Lawyers, Rule 6.1, "The rights and responsibilities of            
 individuals and organizations in the United States are increasingly           
 defined in legal terms.  As a consequence, legal assistance in                
 coping with the web of statutes, rules and regulations is                     
 imperative for persons of modest and limited means as well as for             
 the relatively well to do."                                                   
 MR. SALEMI stated that this is a provision of the professional                
 canons where lawyers are encouraged to provide legal services to              
 people who don't have the money to afford them.  There is no way              
 that an average person would have the time or know how to                     
 understand the complexities of the legal system.  It makes sense              
 that people are trained to interpret the system and extend                    
 themselves to provide help to people.  He noted that this legal               
 access must be maintained.                                                    
 TAPE 96-7, SIDE B                                                             
 Number 052                                                                    
 REPRESENTATIVE GREEN asked if there might be a simple fix to this.            
 He referred to line 25, page 2, of the CS and he suggested dropping           
 the language, "on the record."  He wondered if this would simplify            
 or help eliminate some of the problems.                                       
 CHAIRMAN PORTER responded that this edit would address the problems           
 which Mr. Snowden discussed, put suggested that they wrap up the              
 testimony first.                                                              
 Number 071                                                                    
 REPRESENTATIVE DAVID FINKELSTEIN asked Mr. Salemi about the                   
 circumstance where someone admits their guilt and the fact that Mr.           
 Salemi is required to tell them to avoid cooperation in this                  
 situation.  Representative Finkelstein asked that if someone said             
 they were innocent, would he encourage them to cooperate.                     
 MR. SALEMI answered certainly, especially if the police have been             
 soliciting them and they're getting calls from law enforcement.  If           
 a police or law enforcement officer wishes to contact someone, this           
 is when this someone usually calls him.  Once he's assured that               
 there is no liability in this person talking to the police, he will           
 encourage them to make contact.  If it looks like there will be               
 some exposure, sometimes he will contact the police himself and               
 explain the elements of this vulnerability.  In some instances, an            
 agreement will be forged in return for the information this person            
 might have.                                                                   
 REPRESENTATIVE FINKELSTEIN added that it was his impression, if               
 this same person contacted a private attorney, this attorney would            
 more than likely tell them not to speak to law enforcement                    
 officials without an attorney present.  He thought it would be more           
 common for a private attorney to encourage a person not to talk               
 unless counsel present and he asked if this was correct.                      
 MR. SALEMI said that this was an interesting point and it would               
 depend on the private attorney.  He spoke to private criminal                 
 lawyers specifically and said they'd probably be more likely to               
 tell the individual not to cooperate.  There are lots of reasons              
 for this, namely these attorneys are required to carry malpractice            
 insurance, and they don't want to be sued later.  The safe course             
 for a private attorney is to counsel them not to talk, because what           
 this person doesn't say, won't hurt them.                                     
 Number 147                                                                    
 REPRESENTATIVE FINKELSTEIN also pointed out that this was also a              
 resource issue.  These private attorneys have the resources to                
 counsel this way, as versus a public defender's office.                       
 MR. SALEMI said that this was true, but in a sense he was being               
 asked to generalize and he said it was much easier to look at                 
 situations on a case by case basis.  He suggested that                        
 Representative Finkelstein ask private attorneys the same                     
 questions.  The public defender's office has limited resources and            
 this has always been a factor when deciding the course of advise              
 for a client.                                                                 
 Number 224                                                                    
 REPRESENTATIVE BUNDE pointed out that he saw the problem as                   
 deciding where representation begins.  He wondered if it was                  
 possible for this bill to allow for an initial consultation without           
 representation, say for instance a means for establishing what a              
 client's issues are and at the same time this would disseminate               
 good will from the public defender's office.  These individuals               
 could then be designated indigent if applicable, followed by actual           
 CHAIRMAN PORTER thought that they could not have it both ways.                
 The public defender cannot necessarily facilitate good justice with           
 an initial contact and also require that person not to talk.  They            
 either have to get involved or not.                                           
 CHAIRMAN PORTER pointed out that this was the purpose of Section 2            
 of the present legislation.  Under the DWI situation for instance,            
 or any other situation where a law enforcement official is told by            
 someone they wish to have an attorney present or within a custody             
 situation where the officer is required to advise them of their               
 Miranda rights, it behooves the officer to contact the prosecutor             
 to arrange for a court appointed attorney.  Currently, the only               
 difference in this procedure is that sometimes the officer calls              
 the public defender directly and under this provision of self-                
 appointment the public defender gets involved.                                
 Number 327                                                                    
 REPRESENTATIVE BUNDE asked that in a major capital case, wouldn't             
 any middle class citizen be considered indigent because the cost of           
 defense could cost lots of money.                                             
 CHAIRMAN PORTER then referred to what Mr. Snowden said about the              
 discrepancy of costs for defense of crimes, such as a shoplifting             
 offense versus a murder case.  He pointed out that this bill                  
 doesn't try to remedy this discrepancy.  The intent of the                    
 legislation is to make sure the court is initiating the minimal               
 steps to interview people for indigence.                                      
 Number 392                                                                    
 MIKE KORKEL, President of Alaska Peace Officers Association,                  
 testified that his organization has had a chance to view and                  
 discuss this bill at length.  His concerns centered around self-              
 appointments when an officer is trying to obtain information from             
 an individual and this person contacts the public defender's office           
 before being charged.  Ethically the public defender is an advocate           
 for this person.   If a person is charged with a crime there should           
 be a hearing in court on that person's possible indigence.  He too            
 would utilize the public defender's office as an avenue to get                
 legal questions answered since it's free advise, regardless of an             
 indigent status.  He pointed out that maybe the public defender's             
 office was taking on a larger burden that was necessary under the             
 MR. KORKEL pointed out that the peace officers do get calls in the            
 course of investigations from public defenders' and are told that             
 the public defender represents a particular person.  They then ask            
 if the person under investigation is going to be charged with a               
 crime.  Mr. Korkel is always incredulous when this happens.  He               
 believes that once a person is determined to be indigent, they                
 should then be appointed a public defender.                                   
 Number 600                                                                    
 REPRESENTATIVE TOOHEY asked when Miranda rights are read, before or           
 after an attorney is instated?                                                
 MR. KORKEL explained that miranda rights are read when an                     
 individual is no longer free to leave, when it is determined that             
 they are under arrest.                                                        
 MR. SALEMI stated that this wasn't necessarily true.  Miranda                 
 rights come into play when a person is being detained and based on            
 objective criteria is not free to leave and are about to be                   
 arrested.  Mr. Korkel said that yes, he would agree with this                 
 definition.  This is also referred to as Constructive Custody.                
 Number 640                                                                    
 DEAN GUANELI, Criminal Division, Department of Law, stated that               
 because prosecutors are usually in an adversarial position with               
 public defenders, the division chose not to take a position on this           
 legislation.  He was requested by Representative Martin's office to           
 address questions about the constitutionality of this legislation.            
 MR. GUANELI represented that the criminal division felt as though             
 this legislation was constitutional.  At what point in time does              
 the public defender get appointed and by whom?  What this                     
 legislation seeks to do is to drawn the line at the person's first            
 court appearance.  This is consistent with the constitutional law             
 of the state and the country, that a person is entitled to an                 
 attorney at public expense if they can't afford one at a critical             
 stage in a criminal proceeding.  To draw the line at the initial              
 appearance in court to access indigence is appropriate.  Before               
 this point in time, the Miranda rule protects the rights of an                
 MR. GUANELI outlined that in a Miranda situation a police officer             
 has two options, one, they can stop questioning the individual,               
 which is what usually happens.  In this instance, within 12 hours             
 this person is appointed an attorney.  The other option, if it's              
 imperative that the officer continue with their line of questioning           
 can appear before a judge, have an attorney appointed and then                
 proceed with the questioning.  Mr. Guaneli felt as though this                
 latter situation wouldn't happen very often because the attorney              
 would probably caution their client not to answer any questions.              
 MR. GUANELI agreed that as Mr. Salemi indicated, this legislation             
 would not affect 99.9 percent of the cases already being processed            
 through the courts.  This legislation will effect the example as              
 cited by Lt. Stockard's where an attorney is self-appointed in the            
 middle of a hostage situation to a situation where people in the              
 course of an investigation wish to give information to an officer.            
 This is a policy choice to be made by the legislature, as to when             
 and under what circumstances appointment of public defenders are              
 going to occur.                                                               
 MR. GUANELI noted it often occurs that someone can't get an                   
 attorneyin a DWI case.  There is an opinion that it's unethical               
 for an attorney to advise someone to refuse to take a Breathalyzer            
 test.  To do so, would be advising them to commit a crime, unless             
 the attorney has a good faith belief that they can legally                    
 challenge the statute that makes it a crime to refuse the                     
 Breathalyzer.  This statute has been upheld time and again.  There            
 is no good faith basis to challenge this statute.                             
 MR. GUANELI pointed out that he wonders what an attorney would tell           
 a DWI individual besides what the officer has already imparted.               
 This person will loose their license if they don't take it.  The              
 police officer has a litany of rights and consequences they're                
 suppose to read to the suspect.  He questioned the usefulness of              
 attorney advise at this time.  For this reason he does not believe            
 that the court will find that this is a critical stage in the                 
 criminal justice process to warrant attachment of a constitutional            
 right to a lawyer or a right to a publicly appointed lawyer.                  
 Number 902                                                                    
 REPRESENTATIVE FINKELSTEIN asked about a case which Mr. Salemi                
 referred to in regards to particular treatment of DWI offenses and            
 the need to inform the involved individual of their rights.                   
 MR. GUANELI responded by stating that there is an Alaska statute              
 which says if a person is arrested, they have an immediate right to           
 telephone an attorney, friend, or relative.  The question the court           
 resolved in the case mentioned by Mr. Salemi was whether or not               
 that person was to be given a dime to make a phone call before they           
 took the breath test or after they took it.  The practice up until            
 this time had been that the individual took the Breathalyzer and              
 then they made their phone call.  The officers did this in order              
 that the alcohol would not dissipate.  The court said the person              
 must be given their right to call their attorney immediately and              
 take the Breathalyzer test afterwards.                                        
 REPRESENTATIVE FINKELSTEIN asked what part of law this case was               
 based on.                                                                     
 MR. GUANELI said this case concerned a specific statute and not the           
 constitutionality of it's requirements.  He referred to the court             
 criminal rule which repeats essentially what the statute outlines.            
 REPRESENTATIVE FINKELSTEIN asked what the effect on this particular           
 case would be if this present legislation was passed?                         
 MR. GUANELI said as he understood it, this legislation does not               
 amend this other statute of the right to speak to an attorney.                
 REPRESENTATIVE FINKELSTEIN asked if the particular case just                  
 discussed would be overruled.                                                 
 MR. GUANELI answered that no, this case would still be good law and           
 that police officers would still have to give people access to a              
 telephone in private to call an attorney.  Whether they get an                
 attorney who is willing to talk to them is something else again.              
 All the statute requires is an opportunity to contact someone.                
 Number 1060                                                                   
 CHAIRMAN PORTER added for clarification the distinction of                    
 compelling someone to blow into a Breathalyzer as versus someone to           
 testify against themselves.  In any situation when someone is taken           
 into custody and Miranda rights are given, if an attorney is not              
 available to give advise and is requested, the officer must stop              
 and not continue the questioning.  This legislation doesn't change            
 REPRESENTATIVE FINKELSTEIN understood that, his question dealt with           
 that individual who is about to take a Breathalyzer and can't                 
 contact an attorney, how does the court decide that this ruling no            
 longer applies.                                                               
 CHAIRMAN PORTER pointed out that the right not to self-incriminate            
 still applies to a verbal statement, but to a Breathalyzer, once an           
 effort has been made to contact an attorney the other statute                 
 applies.  If that person refuses to take the Breathalyzer then                
 they're guilty of another offense.  The person should be afforded             
 the opportunity to be informed about their rights in relation to a            
 Breathalyzer test, not necessarily that an attorney should be                 
 contacted before such a test.                                                 
 Number 1139                                                                   
 MR. GUANELI added the question was as to whether or not the person            
 actually contacts an attorney, the content of the conversation once           
 contact has been made was not addressed.  If there is no attorney             
 available, as long as the officer has given them a chance to try to           
 contact one before the test, that's all that the statute requires.            
 CHAIRMAN PORTER used the example of this DWI specific situation as            
 a balancing of the evidence and the right to an attorney, since the           
 longer it takes to contact an attorney, the opportunity to                    
 determine alcohol consumption diminishes.                                     
 Number 1210                                                                   
 MR. GUANELI clarified that the person about to take the                       
 Breathalyzer does not necessarily have the right to meet with the             
 attorney in person, only that they are able to attempt to obtain              
 advise.  Again, this goes to the issue of diminishing evidence.               
 Number 1257                                                                   
 REPRESENTATIVE FINKELSTEIN asked if Mr. Guaneli had a chance to               
 review the pending legislation as unintentionally amending rule               
 number 5.                                                                     
 MR. GUANELI said that Criminal Rule 5 (b) which Mr. Salemi referred           
 to is almost verbatim what the statute outlines in regards to                 
 having a right to call an attorney immediately after arrest.  This            
 bill does not affect that statute, in his opinion, and it does not            
 affect the rule.                                                              
 REPRESENTATIVE GREEN wondered if someone can withhold blowing into            
 a Breathalyzer until their counsel is present.  Does that also                
 apply to these tests on the road?                                             
 Number 1330                                                                   
 CHAIRMAN PORTER answered that no, there had to be a reasonable                
 allowance of time considering that the evidence was diminishing.              
 A reasonable amount of time is given for an attorney to be present.           
 REPRESENTATIVE GREEN then asked about the finger to the nose test.            
 He questioned whether someone can refuse to take this test until              
 their attorney is present.                                                    
 CHAIRMAN PORTER stated that someone can refuse to cooperate with              
 the initial sobriety tests, but then it's up to the officer's                 
 discretion whether or not to pursue the situation further if it               
 appears the suspect is actually intoxicated, i.e. request that they           
 submit to a Breathalyzer.                                                     
 Number 1465                                                                   
 REPRESENTATIVE BUNDE asked whether or not a Breathalyzer is                   
 administered in the field.                                                    
 Number 1479                                                                   
 CHAIRMAN PORTER answered that there is a mini-Breathalyzer used in            
 the field.  The suspect can also be required to take a full blood             
 test, which usually produces more consistent results.                         
 Number 1525                                                                   
 REPRESENTATIVE GREEN made a motion that on line 25 of the CS, of              
 page two, after the word "court," that they strike "on the record."           
 This would be considered amendment number one.   Chairman Porter              
 noted that because this amendment would be so slight it wouldn't              
 require the formal amendment procedure.                                       
 REPRESENTATIVE FINKELSTEIN asked for some clarification about the             
 language in Rule 5 and the statute regarding the right to call an             
 attorney.  He pointed out that the court rule said immediately                
 after arrest and the pending CS said at the time of the person's              
 appearance before the court.  It seemed to him that this pending              
 legislation clause would amend the court rule.                                
 MR. GUANELI answered that the court rule which representative                 
 Finkelstein addressed and the statute amended in the bill really              
 refer to two separate issues.  The first is the point in time at              
 which an attorney gets appointed to represent a person and the                
 court rule addresses when a police officer is required to give the            
 detainee a dime to make a phone call.  These are two distinct                 
 issues and one does not affect the other.  The policeman is                   
 required to provide a dime in all cases, whether the suspect is               
 indigent or not.                                                              
 Number 1755                                                                   
 MR. SALEMI disagreed as to the interpretation of the language in              
 each of these instances.  If someone was arrested and said they               
 were broke, under these circumstances the only representation they            
 could afford would be a public defender.   The bill before the                
 committee would not allow the public defender to answer the phone             
 in the instance of a person being cited for a DWI offense.                    
 REPRESENTATIVE FINKELSTEIN felt as though the key word between the            
 present CS and the court rule would be the distinction between the            
 "opportunity" to speak to an attorney and the "right" to speak to             
 an attorney.                                                                  
 MR. GUANELI pointed out that the courts have interpreted this rule            
 and the statute to impose a reasonableness requirement.  It does              
 not require the suspect all night to contact an attorney.  As long            
 as they are given the opportunity.  He also added that there is a             
 problem with how the current law is being applied.  If public                 
 defender's are answering the phone and giving advise to any DWI               
 suspect who calls in the middle of the night without any kind of              
 inquiry as to their entitlement of representation, this is a                  
 problem as well.  This bill seeks to correct this problem.  In his            
 opinion, it does not amend the court rule.                                    
 Number 1797                                                                   
 REPRESENTATIVE FINKELSTEIN asked if they could ask for the bill               
 drafter's thought on this distinction in the language, at least for           
 a later consideration.                                                        
 CHAIRMAN PORTER hazard to guess at the result.  The word immediate            
 in this instance has been interpreted to mean a reasonable period             
 of time.  He guessed that this language would not run a foul of the           
 statute or the court rule.                                                    
 Number 2033                                                                   
 REPRESENTATIVE BUNDE moved to pass the CSHB 370 (Jud) from this               
 committee with individual recommendations and attached fiscal                 
 notes.  Representative Finkelstein objected for debate purposes.              
 REPRESENTATIVE FINKELSTEIN stated that he appreciated the audit               
 efforts regarding the indigence issue, but there's nothing in the             
 audit which would recommend the passage of this bill.   The                   
 auditors suggested that there be specifically defined standards to            
 determine indigence, either through statute or regulation.  There             
 were also recommendations to internal workings of the public                  
 defender.  The audit was perfectly prescribed in this situation and           
 given some reasonable time period for the agency to correct these             
 problems, the legislature shouldn't change the rules or whatever.             
 The legislature hasn't given the court system a chance to put these           
 suggestions into affect.                                                      
 REPRESENTATIVE FINKELSTEIN added that there is a very important               
 cost benefit analysis any time there are attempts to establish a              
 system for preventing people from getting around the law.  He cited           
 the permanent fund division in their attempts to establish fraud,             
 the welfare division, etcetera.  He asked how much money should               
 they spend in fraud detection as versus how much money will be                
 saved by not.  He also pointed out that there are no hard                     
 statistics on what the level of fraud is in regards to indigence.             
 He believed that the outcome of this type of legislation would                
 create a two-tier system.                                                     
 TAPE 96-8, SIDE A                                                             
 Number 060                                                                    
 REPRESENTATIVE BUNDE pointed out that there are two areas of the              
 bill that are under consideration.  There is the area which                   
 Representative Finkelstein just discussed and the issue of self-              
 appointment.  He felt as though there was a problem where a state             
 agency who was not following what he understood to be the law and             
 undertaking to represent people who have not been determined to be            
 indigent.  It's a policy call whether or not this should continue.            
 He respectfully disagreed that not everything is a cost analysis              
 and that particularly in the system of justice the public has to              
 have confidence that this system is fair.                                     
 CHAIRMAN PORTER prescribed to what Representative Bunde had just              
 stated.  In regards to the audit, the legislature has asked that              
 the court set out a basis for their indigence determination which             
 was not previously set out in statute.  This should help the court            
 to recognize that the legislature is serious in trying to set out             
 consistent standards for determining indigence.                               
 CHAIRMAN PORTER add that the other part of the bill is a policy               
 decision that doesn't necessarily accrue to the work load of the              
 public defender which deals with who will establish whether or not            
 a public defender gets appointed.  Should the public defender do              
 this or the court?  Chairman Porter felt as though it should be the           
 court who decides.                                                            
 Number 218                                                                    
 REPRESENTATIVE FINKELSTEIN referred to the sponsor statement which            
 said that this legislation was in response to the audit.  He                  
 pointed out that there are a set of anecdotes for either side of              
 the issue.  He thought that audits are good for the legal system              
 and that this is a reasonable use of resources.  He pointed out               
 again that it's the audit which spurned these changes in                      
 legislation, judging from the sponsor statement.  He felt as though           
 this legislation was premature.                                               
 CHAIRMAN PORTER asked for a roll call.  Representatives Toohey,               
 Vezey, Green, Bunde and Chairman Porter voted to move CSHB                    
 370(JUD).  Representative Finkelstein voted against moving the                
 bill.  Representative Davis was not present.   The CSHB 370(JUD),             
 as amended, was passed out of committee.                                      
 The House Judiciary Committee meeting was adjourned at 2:50 p.m.              

Document Name Date/Time Subjects