Legislature(2003 - 2004)

01/30/2004 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                        January 30, 2004                                                                                        
                           1:10 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson, Vice Chair                                                                                         
Representative Ralph Samuels                                                                                                    
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Jim Holm                                                                                                         
Representative Dan Ogg                                                                                                          
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 348                                                                                                              
"An Act relating to the rights of certain victims of crime to                                                                   
receive information about the office of victims' rights."                                                                       
                                                                                                                                
     - MOVED CSHB 348(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 398                                                                                                              
"An Act relating to domestic violence fatality review teams."                                                                   
                                                                                                                                
     - MOVED CSHB 398(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 357                                                                                                              
"An Act relating to restitution; and providing for an effective                                                                 
date."                                                                                                                          
                                                                                                                                
     - MOVED CSHB 357(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 397                                                                                                              
"An Act relating to defense contacts with and recordings of                                                                     
statements of victims or witnesses; and amending Rule 16, Alaska                                                                
Rules of Criminal Procedure."                                                                                                   
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
HOUSE BILL NO. 334                                                                                                              
"An Act relating to unlawful exploitation of a minor."                                                                          
                                                                                                                                
     - BILL HEARING POSTPONED                                                                                                   
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
BILL: HB 348                                                                                                                  
SHORT TITLE:NOTICE RE OFFICE OF VICTIMS RIGHTS                                                                                  
SPONSOR(S): REPRESENTATIVE(s) STOLTZE, DAHLSTROM, SAMUELS,                                                                      
MCGUIRE                                                                                                                         
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
01/12/04     2287       (H)        PREFILE RELEASED 1/2/04                                                                      
01/12/04     2287       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
01/12/04     2287       (H)        JUD                                                                                          
01/12/04     2287       (H)        REFERRED TO JUDICIARY                                                                        
01/26/04                (H)        JUD AT 2:00 PM CAPITOL 120                                                                   
01/26/04                (H)        Heard & Held                                                                                 
01/26/04                (H)        MINUTE(JUD)                                                                                  
01/30/04                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
                                                                                                                                
BILL: HB 398                                                                                                                  
SHORT TITLE:DOMESTIC VIOLENCE FATALITY REVIEW TEAM                                                                              
SPONSOR(S): REPRESENTATIVE(s) DAHLSTROM                                                                                         
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
01/23/04     2376       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
01/23/04     2376       (H)        JUD                                                                                          
01/23/04     2376       (H)        REFERRED TO JUDICIARY                                                                        
01/26/04                (H)        JUD AT 2:00 PM CAPITOL 120                                                                   
01/26/04                (H)        Scheduled But Not Heard                                                                      
01/28/04                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
01/28/04                (H)        Heard & Held                                                                                 
                                   MINUTE(JUD)                                                                                  
01/30/04                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
                                                                                                                                
BILL: HB 357                                                                                                                  
SHORT TITLE:RESTITUTION                                                                                                         
SPONSOR(S):   REPRESENTATIVE(s)    SAMUELS,   STOLTZE,   MCGUIRE,                                                               
DAHLSTROM                                                                                                                       
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
01/12/04     2289       (H)        PREFILE RELEASED 1/2/04                                                                      
01/12/04     2289       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
01/12/04     2289       (H)        JUD                                                                                          
01/12/04     2289       (H)        REFERRED TO JUDICIARY                                                                        
01/26/04                (H)        JUD AT 2:00 PM CAPITOL 120                                                                   
01/26/04                (H)        Heard & Held                                                                                 
01/26/04                (H)        MINUTE(JUD)                                                                                  
01/26/04                (H)        MINUTE(JUD)                                                                                  
01/30/04                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
                                                                                                                                
BILL: HB 397                                                                                                                  
SHORT TITLE:DEFENSE CONTACTS WITH VICTIMS & WITNESSES                                                                           
SPONSOR(S): REPRESENTATIVE(s) MCGUIRE                                                                                           
                                                                                                                                
Jrn-Date   Jrn-Page                     Action                                                                                  
01/23/04     2375       (H)        READ THE FIRST TIME -                                                                        
                                   REFERRALS                                                                                    
01/23/04     2375       (H)        JUD                                                                                          
01/23/04     2375       (H)        REFERRED TO JUDICIARY                                                                        
01/26/04                (H)        JUD AT 2:00 PM CAPITOL 120                                                                   
01/26/04                (H)        Scheduled But Not Heard                                                                      
01/30/04                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
REPRESENTATIVE BILL STOLTZE                                                                                                     
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified as one of the prime sponsors of                                                                  
HB 348.                                                                                                                         
                                                                                                                                
REX SHATTUCK, Staff                                                                                                             
to Representative Nancy Dahlstrom                                                                                               
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Offered to respond to questions on HB 398                                                                  
on behalf Representative Dahlstrom, sponsor.                                                                                    
                                                                                                                                
VANESSA TONDINI, Staff                                                                                                          
to Representative Lesil McGuire                                                                                                 
House Judiciary Standing Committee                                                                                              
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   During discussion  of HB 398,  testified to                                                               
the  changes  made in  the  proposed  committee substitute  (CS);                                                               
assisted Representative  McGuire, sponsor, with  the presentation                                                               
of HB 397.                                                                                                                      
                                                                                                                                
ALLEN STOREY, Lieutenant                                                                                                        
Central Office                                                                                                                  
Division of Alaska State Troopers                                                                                               
Department of Public Safety (DPS)                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified on proposed amendments to HB 398.                                                                
                                                                                                                                
SARA NIELSEN, Staff                                                                                                             
to Representative Ralph Samuels                                                                                                 
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Responded to questions on HB  357 on behalf                                                               
of Representative Samuels, one of the prime sponsors.                                                                           
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General                                                                                      
Legal Services Section-Juneau                                                                                                   
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Responded to  questions during discussion of                                                               
HB 357.                                                                                                                         
                                                                                                                                
LINDA WILSON, Deputy Director                                                                                                   
Public Defender Agency (PDA)                                                                                                    
Department of Administration (DOA)                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Provided comments  during discussion  of HB                                                               
357 and  suggested a change; Provided  comments during discussion                                                               
of HB 397.                                                                                                                      
                                                                                                                                
STEPHEN BRANCHFLOWER, Director                                                                                                  
Office of Victims' Rights (OVR)                                                                                                 
Alaska State Legislature                                                                                                        
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Provided comments  during discussion  of HB                                                               
397.                                                                                                                            
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-7, SIDE A                                                                                                             
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order  at   1:10  p.m.    Representatives                                                               
McGuire, Anderson,  Samuels, Gara, and Gruenberg  were present at                                                               
the call to order.                                                                                                              
                                                                                                                                
HB 348 - NOTICE RE OFFICE OF VICTIMS RIGHTS                                                                                   
                                                                                                                                
Number 0093                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE BILL NO. 348, "An  Act relating to the rights of certain                                                               
victims  of crime  to  receive information  about  the office  of                                                               
victims'  rights."   House  Bill  348  has four  prime  sponsors:                                                               
Representatives Stoltze, Dahlstrom, Samuels, and McGuire.                                                                       
                                                                                                                                
Number 0193                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved to  adopt the  proposed committee                                                               
substitute  (CS)  for  HB 348,  Version  23-LS1320\Q,  Luckhaupt,                                                               
1/28/04,  as the  working document.   There  being no  objection,                                                               
Version Q was before the committee.                                                                                             
                                                                                                                                
Number 0207                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BILL STOLTZE,  Alaska State  Legislature, one  of                                                               
the  prime  sponsors of  HB  348,  noted  that  Version Q  has  a                                                               
positive  change,  and  that Representative  Gara  had  suggested                                                               
adding  some  extra  information [regarding  the  Violent  Crimes                                                               
Compensation  Board (VCCB)]  to  the Office  of Victims'  Rights'                                                               
brochure and putting  such language in the bill in  the form of a                                                               
message from  the legislature  to the  Office of  Victims' Rights                                                               
(OVR).   Representative Stoltze talked about  staff's alternative                                                               
suggestion to add a letter of intent.                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG turned  attention to page 3,  line 14 of                                                               
the bill, and said  it seemed to him that if the  victim is of an                                                               
age in which  he/she can read, the notice should  be given to the                                                               
victim  as well  as the  parent or  guardian.   He suggested  the                                                               
following as an amendment:                                                                                                      
                                                                                                                                
     Page 3, line 14, after "shall"                                                                                             
     Insert "also"                                                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG  said this language would  make it clear                                                               
that the notice should go the victim and the parent.                                                                            
                                                                                                                                
REPRESENTATIVE STOLTZE  said he  did not have  an opinion  on the                                                               
proposed amendment.                                                                                                             
                                                                                                                                
Number 0388                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG   moved  to  adopt  the   foregoing  as                                                               
Amendment 1.                                                                                                                    
                                                                                                                                
Number 0411                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA objected  for  purposes of  discussion.   He                                                               
asked  Representative Gruenberg  to consider  that the  amendment                                                               
may  create an  [additional step  in the  process] if  either the                                                               
parent or the victim are not at the same location.                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG clarified  that it  is his  intent that                                                               
the notice be given to the person  that is not present as soon as                                                               
possible.  He said the  situation may arise anytime, for example,                                                               
if the victim  is unconscious.  Representative  Gruenberg said he                                                               
thought common sense should be used.                                                                                            
                                                                                                                                
REPRESENTATIVE GARA  asked if [the  amendment would  require that                                                               
both  the  parent and  the  victim  be  given  the notice].    He                                                               
suggested that notifying both the  parent and the victim might be                                                               
an administrative burden.                                                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG said he was  sure it could be dealt with                                                               
if  it  became a  problem.    He said  he  believed  it was  very                                                               
important that both the parent and the victim have the notice.                                                                  
                                                                                                                                
REPRESENTATIVE  SAMUELS, one  of the  prime sponsors  of HB  348,                                                               
said  a  15-year-old  rape  victim  should  know  his/her  rights                                                               
regardless of  whether the parents are  present.  He said  he was                                                               
in agreement with  Representative Gruenberg that it  would help a                                                               
young victim to understand his/her rights.                                                                                      
                                                                                                                                
CHAIR  McGUIRE, one  of the  prime sponsors  of HB  348, surmised                                                               
that  Amendment 1  would require  that  both the  victim and  the                                                               
parent be  given the notice.   If either the victim  or parent is                                                               
not present during  the process, the notice would  be provided to                                                               
the  absent  party  through  first  class mail.    She  said  the                                                               
intention is  not for the  notification to  be a burden,  but the                                                               
committee feels it is appropriate that both parties be notified.                                                                
                                                                                                                                
REPRESENTATIVE GARA removed his objection.                                                                                      
                                                                                                                                
Number 0572                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  asked if  there was any  further objection  to the                                                               
motion  to  adopt  Amendment  1.     There  being  no  objection,                                                               
Amendment 1 was adopted.                                                                                                        
                                                                                                                                
Number 0600                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA moved to adopt Amendment 2, [23-LS1320\H.2,                                                                 
Luckhaupt, 1/30/04] which read:                                                                                                 
                                                                                                                                
     Page 1, line 2, following "rights":                                                                                      
          Insert "and the Violent Crimes Compensation                                                                         
     Board"                                                                                                                   
                                                                                                                                
     Page  3, following line 17:                                                                                                
          Insert new bill sections to read:                                                                                     
        "* Sec. 2.  AS 24.65.100  is amended by adding a new                                                                
     subsection to read:                                                                                                        
          (d)  The victims' advocate shall provide written                                                                      
     material  to  be  given  out to  victims  of  crime  as                                                                    
     required by  AS 12.61.010.   The written  material must                                                                    
     contain a brief  statement about compensation available                                                                    
     from the Violent Crimes  Compensation Board and contact                                                                    
     information for that board.                                                                                                
        *  Sec. 3.    The  uncodified law  of  the State  of                                                                  
     Alaska is amended by adding a new section to read:                                                                         
          APPLICABILITY OF SECTION 2 OF THIS ACT.  Section                                                                      
     2  of  this  Act  requires  the  victims'  advocate  to                                                                    
     include within  brochures or other written  material to                                                                    
     be  given to  certain crime  victims information  about                                                                    
     compensation   available   from  the   Violent   Crimes                                                                    
     Compensation Board.   This requirement applies  only to                                                                    
     brochures or  other written material printed  after the                                                                    
     effective date of this Act.   The victims' advocate may                                                                    
     continue to supply brochures  or other written material                                                                    
     printed  before the  effective date  of this  Act until                                                                    
     those brochures or materials are exhausted."                                                                               
                                                                                                                                
Number 0617                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS objected.                                                                                                
                                                                                                                                
REPRESENTATIVE GARA said he wanted to include information in the                                                                
OVR's brochure that specifies that there is also a Violent                                                                      
Crimes Compensation Board.                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA suggested amending Amendment 2, as follows:                                                                 
                                                                                                                                
     Line 9,                                                                                                                    
     Delete "compensation available from"                                                                                       
                                                                                                                                
[Although there was no further discussion on this point, this                                                                   
amendment to Amendment 2 was treated as adopted.]                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG said  he liked the idea  of the language                                                               
"compensation  available  from"  because   it  is  possible  that                                                               
certain crimes are compensable even if others are not.                                                                          
                                                                                                                                
REPRESENTATIVE  GARA said  that determining  whether a  crime was                                                               
compensable would  require a "legal  call" by the  person handing                                                               
out  the pamphlets  and [it  is not  his intention]  to make  the                                                               
person  providing the  information an  expert in  this area.   He                                                               
said he wanted  to put as minimal a requirement  as possible upon                                                               
the OVR  to include a very  brief statement in its  brochure that                                                               
the VCCB exists and include the  contact information.  He said he                                                               
crossed out  the extra words because  he didn't want to  make the                                                               
statement  more than  a couple  of sentences  if the  [OVR] feels                                                               
that is  all that will  fit in  a brochure.   Representative Gara                                                               
expressed frustration about  the length of Amendment  2, and said                                                               
if the  OVR wants  to make the  information more  elaborate, that                                                               
would be  great, but he wanted  to give the OVR  that discretion.                                                               
He  noted that  the reason  that he  wanted to  add an  amendment                                                               
rather  than a  letter  of intent  is because  with  a letter  of                                                               
intent, the  statements of purpose  disappear very  shortly after                                                               
the  law is  passed.   He  indicated that  the  successor to  the                                                               
current  director  of  the  OVR  might not  see  the  [letter  of                                                               
intent].                                                                                                                        
                                                                                                                                
REPRESENTATIVE  GARA  again  moved   to  adopt  Amendment  2  [as                                                               
amended].                                                                                                                       
                                                                                                                                
REPRESENTATIVE SAMUELS objected.                                                                                                
                                                                                                                                
REPRESENTATIVE  STOLTZE  noted   that  compensation  doesn't  get                                                               
discussed until there  is an adjudication of  guilt or innocence,                                                               
and that's  really far  down the line.   He said  there is  not a                                                               
presumption  that  there is  a  compensation  that early  in  the                                                               
process.                                                                                                                        
                                                                                                                                
Number 0860                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  indicated  her  hope  that  just  Section  2  [of                                                               
Amendment  2] would  remain; although,  she added,  Section 3  of                                                               
Amendment  2 is  needed to  explain that  there is  no liability.                                                               
She  surmised that  generally,  applicability  provisions do  not                                                               
show up in  future statutes, and mentioned that the  OVR might be                                                               
reprinting its brochure in March anyway.                                                                                        
                                                                                                                                
REPRESENTATIVE GARA  agreed that  Section 3  will disappear.   He                                                               
explained that  the uncodified laws  will show up in  the session                                                               
laws  next year  but  will never  show up  in  the statute  books                                                               
afterward.   He said  he shared  members' frustration  because he                                                               
thought the amendment could be a  lot shorter than what came back                                                               
from [the drafter].                                                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG asked if Section  3 of Amendment 2 could                                                               
be done as a letter of  intent, adding that because the committee                                                               
is doing a letter of  intent anyway, if Representative Gara would                                                               
remove Section  3 from Amendment  2, when the committee  takes up                                                               
the letter of intent, Section 3's language can be added to it.                                                                  
                                                                                                                                
CHAIR  McGUIRE said  Section 2  supercedes the  letter of  intent                                                               
that the  committee currently  has, so the  new letter  of intent                                                               
could  actually  be  the  concept  contained  in  Section  3  [of                                                               
Amendment 2].                                                                                                                   
                                                                                                                                
Number 0955                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  moved  to  amend Amendment  2  by  deleting                                                               
Section 3.  There being no objection, it was so ordered.                                                                        
                                                                                                                                
CHAIR  McGUIRE asked  if there  was objection  [to the  motion to                                                               
adopt Amendment 2,  as amended].  There being  none, Amendment 2,                                                               
as amended, was adopted.                                                                                                        
                                                                                                                                
Number 1011                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG moved  to report the proposed  CS for HB                                                               
348 [Version  23-LS1320\Q, Luckhaupt,  1/28/04], as  amended, out                                                               
of   committee   [with   individual   recommendations   and   the                                                               
accompanying zero fiscal notes].   There being no objection, CSHB                                                               
348(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
CHAIR McGUIRE turned attention to  the original letter of intent,                                                               
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     It   is   the   intent   of   the   Alaska   House   of                                                                    
     Representatives  that  the  Office of  Victim's  Rights                                                                    
     provide  contact  information  for the  Violent  Crimes                                                                    
     Compensation  Board  on  their  informational  brochure                                                                    
     offered to the public.                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG explained that  the new letter of intent                                                               
would read:                                                                                                                     
                                                                                                                                
     APPLICABILITY OF SECTION 2 OF THIS ACT.  Section 2 of                                                                      
       this Act requires the victims' advocate to include                                                                       
     within brochures or other written  material to be given                                                                    
     to    certain   crime    victims   information    about                                                                    
     compensation   available   from  the   Violent   Crimes                                                                    
     Compensation Board.   This requirement applies  only to                                                                    
     brochures or  other written material printed  after the                                                                    
     effective date of this Act.   The victims' advocate may                                                                    
     continue to supply brochures  or other written material                                                                    
     printed  before the  effective date  of this  Act until                                                                    
     those brochures or materials are exhausted.                                                                                
                                                                                                                                
Number 1093                                                                                                                     
                                                                                                                                
CHAIR McGUIRE asked  if there was any objection  to reporting the                                                               
new letter  of intent CSHB  348(JUD).  There being  no objection,                                                               
the  letter of  intent for  CSHB 348(JUD)  was reported  from the                                                               
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG  suggested  that  the  House  Judiciary                                                               
Standing  Committee provide  a zero  fiscal  note specifying  the                                                               
committee's intention that the state  does not spend any money on                                                               
HB 348.                                                                                                                         
                                                                                                                                
CHAIR McGUIRE,  in response, said  the committee would  [create a                                                               
zero fiscal note].                                                                                                              
                                                                                                                                
[CSHB  348(JUD) was  reported from  the House  Judiciary Standing                                                               
Committee.]                                                                                                                     
                                                                                                                                
HB 398 - DOMESTIC VIOLENCE FATALITY REVIEW TEAM                                                                               
                                                                                                                                
Number 1175                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL  NO.  398,  "An Act  relating  to  domestic  violence                                                               
fatality  review teams."   [In  members' packets  was a  proposed                                                               
committee  substitute  (CS)  for  HB  398,  Version  23-LS1321\I,                                                               
Luckhaupt, 1/29/04.]                                                                                                            
                                                                                                                                
Number 1181                                                                                                                     
                                                                                                                                
REX  SHATTUCK, Staff  to Representative  Nancy Dahlstrom,  Alaska                                                               
State Legislature,  sponsor, offered  to respond to  questions on                                                               
behalf of  Representative Dahlstrom.   He said the  committee was                                                               
thorough in looking at the bill during the previous meeting.                                                                    
                                                                                                                                
Number 1191                                                                                                                     
                                                                                                                                
VANESSA  TONDINI, Staff  to Representative  Lesil McGuire,  House                                                               
Judiciary  Standing Committee,  Alaska  State Legislature,  began                                                               
discussion  of  the  amendments adopted  during  the  meeting  on                                                               
1/28/04.   Turning to Version  I, she pointed out  that inclusion                                                               
of the language "or earlier" on  page 1, line 10, creates sort of                                                               
a discrepancy because it may  be contradictory to specifying that                                                               
a review team can only be  started once a case has been completed                                                               
or adjudicated.                                                                                                                 
                                                                                                                                
MS.  TONDINI  explained  that  although  one  of  the  amendments                                                               
adopted at  the bill's prior  meeting added a  definition section                                                               
for the purpose  of defining domestic violence,  this change does                                                               
not appear in  Version I because domestic violence  as defined in                                                               
AS 18.66.990 already applies.                                                                                                   
                                                                                                                                
MS.  TONDINI  turned attention  to  the  page  2, lines  7-8,  of                                                               
Version  I, and  noted that  it provides  that "serious  physical                                                               
injury" has the meaning given in  AS 11.81.900, so Version I does                                                               
not contain a  separate definitions section.   She indicated that                                                               
the other  amendments adopted on  1/28/04 have  been incorporated                                                               
into Version I.                                                                                                                 
                                                                                                                                
MS.  TONDINI reminded  members that  at the  meeting on  1/28/04,                                                               
Representative Gruenberg  posed a few technical  questions to the                                                               
drafters.  She turned attention to  page 3, line 2, of Version I,                                                               
specifically the  language "or"  following "team", and  said [the                                                               
drafters] decided to  leave the language as "or"  and the sponsor                                                               
agreed.  Ms. Tondini, in  conclusion, turned attention to page 3,                                                               
line 13,  of the  original bill and  explained that  the language                                                               
"damage" was changed to "damages".                                                                                              
                                                                                                                                
Number 1381                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS moved  to adopt  the proposed  CS for  HB                                                               
398, Version 23-LS1321\I, Luckhaupt,  1/29/04, as the work draft.                                                               
There being no objection, Version I was before the committee.                                                                   
                                                                                                                                
MR. SHATTUCK turned  attention to page 1, line  10, and expressed                                                               
concerns about  the language  "or earlier";  he said  the sponsor                                                               
would prefer  to [delete  the language]  "or earlier"  because it                                                               
was felt that it would impact cases that perhaps were "in play".                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG said it is his  belief that it is a good                                                               
idea to  have "or  earlier" included in  the language  because it                                                               
gives  discretion  to  the  commissioner or  the  person  in  the                                                               
municipality to  do it earlier if  he/she wanted to.   He said he                                                               
couldn't foresee a situation off  hand that it would involve, but                                                               
his gut  feeling is  that there  could be such  a situation.   He                                                               
remarked,  "It's a  chicken soup  amendment," and  suggested that                                                               
[law enforcement] obviously  would not do anything  to "screw up"                                                               
the investigation.   He said  he thought  it was very  clear that                                                               
[the committee] is  not authorizing that.  He also  said he would                                                               
hate to see [law enforcement]  "hamstrung" from the investigation                                                               
because [investigators] may think they  may get a witness at some                                                               
future date and technically it is not put in the closed files.                                                                  
                                                                                                                                
REPRESENTATIVE SAMUELS  said he  tends to agree  with eliminating                                                               
the   language  because,   in   an   ongoing  investigation,   an                                                               
investigator can't comment  on the case at all.   He said that in                                                               
a  high  publicity  case  there  may  be  political  pressure  on                                                               
[officials]  to convene  [a  domestic  violence fatality  review]                                                               
team  because  of  the  facts  of the  crime,  but  [because  the                                                               
investigation is ongoing] the district  attorney can't talk about                                                               
the   case.      He   remarked  that   although   he   understood                                                               
Representative  Gruenberg's point,  he  didn't want  to run  into                                                               
situation  in  which  somebody   convenes  [a  domestic  violence                                                               
fatality  review  team]   to  look  good  but   people  can't  be                                                               
completely forthcoming.                                                                                                         
                                                                                                                                
REPRESENTATIVE   GRUENBERG   suggested  that   [law   enforcement                                                               
officials] are going to be  bright, educated, sophisticated, very                                                               
highly trained people,  and he didn't want to  see them prevented                                                               
from doing something [involving] an  old case.  He explained that                                                               
some murder  [cases] can go on  forever and never be  solved, and                                                               
those are the  kinds of cases that have a  problem which could be                                                               
addressed via HB  398.  Without "or earlier"  remaining, he said,                                                               
he is afraid that exactly the opposite will occur.                                                                              
                                                                                                                                
Number 1565                                                                                                                     
                                                                                                                                
ALLEN  STOREY, Lieutenant,  Central  Office,  Division of  Alaska                                                               
State  Troopers, Department  of  Public  Safety (DPS),  testified                                                               
that  if  [the  commissioner]  wanted   to  [convene  a  domestic                                                               
violence fatality  review team]  before final  adjudication, then                                                               
maybe  such   could  be  qualified   via  use  of,   "an  earlier                                                               
appropriate  time" or  something along  that  line.   He said  he                                                               
could see  that there  may be  an incident in  which it  would be                                                               
necessary to review the process at  an earlier time, but he could                                                               
also  see that  it could  create conflicts  in the  course of  an                                                               
investigation if done at an inappropriate time.                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  that  suggestion  would work  for                                                               
him.                                                                                                                            
                                                                                                                                
MR.   SHATTUCK   said  the   sponsor   would   agree  with   that                                                               
[suggestion].                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GARA said  he didn't  want to  lose sight  of the                                                               
purpose of the  domestic violence fatality review  team, which is                                                               
to figure out  how somebody ended up becoming a  victim and where                                                               
the  system failed.    He  said once  the  information needed  to                                                               
review  a  case is  [complete],  the  domestic violence  fatality                                                               
review  team will  act responsibly  and indicate  that it  is the                                                               
time to investigate  it.  He said sometimes there  is the problem                                                               
in that a  case doesn't get adjudicated because an  issue goes up                                                               
on appeal, and  one would not want to make  the domestic violence                                                               
fatality review  team wait  when it should  just figure  out what                                                               
went wrong  and why the victim  became victimized.  He  said this                                                               
is one of  those statutes that no matter how  it is written there                                                               
would be unintended  consequences one way or the  other, and even                                                               
though  there  might be  that  time  when the  domestic  violence                                                               
fatality review  team would be  improperly convened, he  would be                                                               
willing to take that risk.   Representative Gara said the earlier                                                               
suggested discretion  is something that  should be given  to [the                                                               
convening authority].                                                                                                           
                                                                                                                                
CHAIR McGUIRE surmised that the  drafters are saying that adding,                                                               
"or earlier" renders,  "has been completed or  adjudicated by law                                                               
enforcement"  irrelevant.   She  indicated a  preference for  not                                                               
including "or earlier".                                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  he   thought,  "or  earlier"  is                                                               
important  because normally  one  would want  to  wait until  the                                                               
investigation is completed.                                                                                                     
                                                                                                                                
CHAIR McGUIRE  said it  would be  fine with  her to  do something                                                               
along the lines  of what Lieutenant Storey  suggested, but didn't                                                               
know who  would determine when  it would be appropriate  and when                                                               
it wouldn't.                                                                                                                    
                                                                                                                                
Number 1719                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  suggested amending  the language  on page                                                               
1, line 10,  to do exactly as Lieutenant Storey  said by deleting                                                               
the  word  "earlier",  so  it   would  read  "or  at  an  earlier                                                               
appropriate time".  He remarked,  "Generally speaking, you'd wait                                                               
until  the   adjudication  was  finished,  but   you  could  make                                                               
determinations and  not be  willing to give  the other  ... folks                                                               
some benefit of the doubt."                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG said he  thought the person to determine                                                               
that point would  be the convening authority.  He  stated that he                                                               
was in support of the amendment.                                                                                                
                                                                                                                                
Number 1759                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS moved  to adopt Amendment 1,  to make page                                                               
1, line  10, read as follows:   "completed or adjudicated  by law                                                               
enforcement  or  at  an  earlier  appropriate  time,  a  domestic                                                               
violence fatality".   There being  no objection, Amendment  1 was                                                               
adopted.                                                                                                                        
                                                                                                                                
Number 1774                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS moved  to adopt  Amendment 2,  which read                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
        pg. 1, Line 7 after state Insert: for which the                                                                       
     Department of Public Safety has primary responsibility                                                                   
     for providing police services.                                                                                           
                                                                                                                                
Number 1781                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected for discussion purposes.                                                                                 
                                                                                                                                
REPRESENTATIVE SAMUELS  said Amendment 2 came  from the sponsor's                                                               
office.  He explained that  at the previous meeting the committee                                                               
had discussed wanting  to ensure that somebody  had the authority                                                               
without  getting  into  a  "turf  battle" between  a  city  or  a                                                               
municipality and DPS.                                                                                                           
                                                                                                                                
MR.  SHATTUCK said  the sponsor  would prefer  not to  offer that                                                               
amendment from [DPS] at this particular time.                                                                                   
                                                                                                                                
Number 1803                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS withdrew Amendment 2.                                                                                    
                                                                                                                                
Number 1809                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved to  report the  proposed CS  for HB                                                               
398, [Version  23-LS1321\I, Luckhaupt, 1/29/04], as  amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying  fiscal  notes.   There  being  no  objection,  CSHB                                                               
398(JUD) was reported from committee.                                                                                           
                                                                                                                                
HB 357 - RESTITUTION                                                                                                          
                                                                                                                                
Number 1847                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL  NO.  357,  "An  Act  relating  to  restitution;  and                                                               
providing for an effective date."   House Bill 357 has four prime                                                               
sponsors:    Representatives  Stoltze,  Dahlstrom,  Samuels,  and                                                               
McGuire.    [Before  the committee  was  the  proposed  committee                                                               
substitute  (CS)  for  HB 357,  Version  23-LS1384\D,  Luckhaupt,                                                               
1/20/04, which was adopted as a work draft on 1/26/04.]                                                                         
                                                                                                                                
Number 1853                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved adopt the  proposed CS for  HB 357,                                                               
labeled  23-LS1384\H,  Luckhaupt,  1/29/04  as  the  work  draft.                                                               
There being no objection Version H was before the committee.                                                                    
                                                                                                                                
Number 1860                                                                                                                     
                                                                                                                                
SARA  NIELSEN,  Staff  to Representative  Ralph  Samuels,  Alaska                                                               
State  Legislature, spoke  on behalf  of Representative  Samuels,                                                               
one  of the  prime  sponsors  of HB  357,  regarding the  changes                                                               
incorporated  into the  CS.    She explained  that  Section 5  of                                                               
Version  D  was totally  removed.    This  was the  section  that                                                               
clarified   that  a   minor  should   remain  [accountable]   for                                                               
restitution past  age 19.  Because  this is already the  law, she                                                               
remarked, Section 5  of Version D seemed to  complicate the issue                                                               
rather than clarify it, and so the language was removed.                                                                        
                                                                                                                                
MS. NIELSEN turned attention to page  1, line 4, and page 1, line                                                               
10, which  now contain the  language "unless the victim  or other                                                               
person   expressly  declines   restitution";  this   language  is                                                               
intended to address  a scenario in which a  victim simply doesn't                                                               
want restitution for whatever reason,  for example, if the victim                                                               
would rather  have the offender  go to alcohol  treatment instead                                                               
of paying  restitution.   She turned attention  to page  2, lines                                                               
15-19, and said this new Section  4 was added so that a defendant                                                               
would  be able  to  come  forward at  any  time  and pay  his/her                                                               
restitution.   Thus,  if  that  person had  been  ordered to  pay                                                               
restitution but  was making a  payment that  was not part  of the                                                               
payment schedule, the court should still accept the money.                                                                      
                                                                                                                                
MS. NIELSEN turned  attention to the fourth change,  page 2, line                                                               
31 [through page 3, line 1],  and she said the following language                                                               
was added:   "The court  may not  reduce an order  of restitution                                                           
but may change  the payment schedule."  She said  this is sort of                                                           
a  compromise to  earlier versions'  repeal  of AS  12.55.045(f).                                                               
She noted  that Representative Gruenberg  was concerned  that the                                                               
court wasn't taking  into consideration the ability  to pay; this                                                               
additional   language   simply   gives  a   defendant   [who   is                                                               
experiencing  financial  difficulties   the  opportunity  to  pay                                                               
restitution at a later time].                                                                                                   
                                                                                                                                
MS.  NIELSEN  turned   attention  to  page  3,   lines  2-7,  the                                                               
delinquent minor  section, which [mirrors]  what was done  in the                                                               
adult  section  to allow  the  court  to accept  [a  restitution]                                                               
payment at anytime.                                                                                                             
                                                                                                                                
Number 1970                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  supports the language  on page                                                               
2, line  31, through  page 3,  line 1,  which proposes  to change                                                               
Title 12.   He pondered whether that kind of  language could also                                                               
be put in Title 47 regarding  delinquency.  He said the committee                                                               
allowed the court to do a  payment schedule for adults but it had                                                               
not  done   that  for   juvenile  delinquents.     Representative                                                               
Gruenberg said the two statutes track  each other, one is for the                                                               
adults and  the other is  for the  delinquents, and there  may be                                                               
something already in the delinquency  statute, but he wanted that                                                               
to be investigated and, if appropriate, add that sentence.                                                                      
                                                                                                                                
REPRESENTATIVE SAMUELS  turned attention to  page 3, line  1, and                                                               
suggested  adding the  words, "unless  specifically requested  by                                                               
the  victim" to  address situations  in which  a victim  requests                                                               
that a restitution order be dropped.                                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG  warned  Representative Samuels  to  be                                                               
careful that such language is properly drafted.                                                                                 
                                                                                                                                
MS.  NIELSEN,  on  the  question  of  whether  HB  357  could  be                                                               
challenged on a  constitutional basis, said she  had checked with                                                               
the Department of  Law (DOL), which relayed  that there shouldn't                                                               
be any such challenges].                                                                                                        
                                                                                                                                
Number 2115                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS moved  to adopt  [Amendment 1],  which he                                                               
said would stipulate that if  the victim chooses, he/she would be                                                               
able to drop the order of restitution.                                                                                          
                                                                                                                                
Number 2125                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG objected  for  purposes of  discussion.                                                               
He asked that Amendment 1 be clarified.                                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS explained that Amendment 1 would be:                                                                     
                                                                                                                                
     Page 2, line 31, after "restitution"                                                                                   
         Insert ", unless specifically requested by the                                                                         
     victim,"                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG removed his objection.                                                                                 
                                                                                                                                
REPRESENTATIVE SAMUELS  asked if it  is possible for a  victim to                                                               
be  threatened  or  coerced into  dropping  a  restitution  order                                                               
against his/her will.                                                                                                           
                                                                                                                                
Number 2174                                                                                                                     
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau, Criminal Division, Department  of Law (DOL), said                                                               
that  she  had  never  seen   that  situation  arise,  but  could                                                               
certainly imagine that  scenario if a [defendant] is  under a lot                                                               
of  stress with  a  high  restitution payment  and  tries to  put                                                               
pressure on the victim.                                                                                                         
                                                                                                                                
REPRESENTATIVE   GRUENBERG  said   that   in  domestic   violence                                                               
situations,  a  lot of  times  [an  offender] will  pressure  the                                                               
victim to drop  the charge.  He offered  a hypothetical situation                                                               
in which a  victim is given the choice by  her abusive ex-husband                                                               
of either  dropping the restitution  order against him  or having                                                               
to fight him for custody of their child.                                                                                        
                                                                                                                                
Number 2240                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS withdrew Amendment 1.                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG asked if there  is other language in the                                                               
bill similar to that in Amendment 1.                                                                                            
                                                                                                                                
REPRESENTATIVE SAMUELS indicated that there is.                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  Representative  Samuels  if  he                                                               
wanted to remove such language from the bill.                                                                                   
                                                                                                                                
REPRESENTATIVE   SAMUELS  said   no,  because   there  might   be                                                               
situations in which the victim does not want restitution.                                                                       
                                                                                                                                
CHAIR McGUIRE,  one of  the prime sponsors  of HB  357, indicated                                                               
that  if the  language  is removed  it  might [create  unintended                                                               
consequences.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GARA  said it  can  be  very expensive  and  time                                                               
consuming  to prove  restitution.   He said  sometimes there  are                                                               
victims who do  not want to be involved in  the court process, so                                                               
there will be certainly be  cases in which the court, prosecutor,                                                               
and defense attorney  spend time calculating and  ordering a full                                                               
restitution  amount when  the  victim really  doesn't  care.   He                                                               
explained that  [language] on page  1 requires restitution  to be                                                               
ordered unless the  victim expressly declines.   However, he said                                                               
it doesn't address the circumstance  in which the case doesn't go                                                               
to  trial,  the victim  never  shows  up,  and the  victim  never                                                               
expresses  whether  he/she wants  restitution,  but  the bill  is                                                               
requiring  a full  hearing and  litigation  over the  restitution                                                               
amount.  He  said maybe it is  not a bad thing that  a victim get                                                               
restitution  even if  he/she  doesn't  want it  or  care, but  he                                                               
expressed concern about spending the  money to require the scarce                                                               
resources of the judicial system  to create the restitution order                                                               
if the victim doesn't care.                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS said  he would  assume that  if there  is                                                               
money  involved,  then most  victims  are  going  to want  it  if                                                               
they've  suffered a  financial loss.    He acknowledged,  though,                                                               
that there may be a small  number of victims that aren't going to                                                               
follow  through   at  least  a   little  bit  on  the   issue  of                                                               
restitution.    He offered  the  scenario  in  which a  kid  goes                                                               
through a  neighborhood and shoots  out 40 car windows,  and said                                                               
that even  if the [victim]  doesn't want to  go to court,  all it                                                               
takes is  a phone call  from the  district attorney to  tell that                                                               
victim that he/she  has restitution coming.  He  opined that even                                                               
though the victim  might not have cared, he/she  would still take                                                               
the restitution.   Representative Samuels said that to  him it is                                                               
about fairness,  and that is the  [purpose] of the bill  - to try                                                               
to make people responsible for their actions.                                                                                   
                                                                                                                                
TAPE 04-7, SIDE B                                                                                                             
Number 2394                                                                                                                     
                                                                                                                                
MS. CARPENETI  relayed that victims  are contacted and  asked for                                                               
evidence of restitution.                                                                                                        
                                                                                                                                
REPRESENTATIVE GARA  asked whether,  if there  was a  court order                                                               
that asked the victim for  receipts, but the victim hadn't handed                                                               
them  in or  told what  the  damages are,  the bill  says a  full                                                               
restitution  hearing  must  be  made  even  without  evidence  of                                                               
restitution.   He asked if the  court is obligated to  figure out                                                               
the restitution without the victim's help.                                                                                      
                                                                                                                                
MS.  CARPENETI said  that practically,  that's not  how it  would                                                               
work.   She surmised  that there would  be a  restitution hearing                                                               
and  the court  would ask  for  evidence of  restitution, but  if                                                               
there isn't evidence, the court would  say the victim has a right                                                               
to restitution, but does not have to exercise that right.                                                                       
                                                                                                                                
REPRESENTATIVE  GARA  pointed  out, however,  that  [proposed  AS                                                               
12.55.045(a)(1)]  says   the  court  shall,  unless   the  victim                                                               
expressly says  no, order restitution.   He said the  court would                                                               
be in  violation of  the law  if it ignored  the language  in the                                                               
bill.                                                                                                                           
                                                                                                                                
MS. CARPENETI  speculated that  the court  would simply  say that                                                               
the restitution had been expressly declined.                                                                                    
                                                                                                                                
REPRESENTATIVE GARA  suggested changing the wording  of [proposed                                                               
AS  12.55.045(a)(1), lines  4-5, to  read, "The  court shall,  if                                                               
presented with competent evidence, order restitution".                                                                          
                                                                                                                                
REPRESENTATIVE SAMUELS  gave an  example of a  broken windshield,                                                               
and asked  whether, if  there is  no receipt  given, there  is no                                                               
restitution.                                                                                                                    
                                                                                                                                
Number 2301                                                                                                                     
                                                                                                                                
MS.  CARPENETI agreed  that if  there are  no claims  or receipts                                                               
presented by the victim, then there is no restitution ordered.                                                                  
                                                                                                                                
REPRESENTATIVE SAMUELS objected [to the suggested change].                                                                      
                                                                                                                                
REPRESENTATIVE  GARA   said  he  disagrees   with  Representative                                                               
Samuels  and Ms.  Carpeneti, opining  that  if the  law says  the                                                               
court  has to  order restitution,  then  the court  has to  order                                                               
restitution, whether it is practical or not.                                                                                    
                                                                                                                                
CHAIR McGUIRE  said she did  not like the word,  "competent," but                                                               
agreed with the rest of the wording of the amendment.                                                                           
                                                                                                                                
REPRESENTATIVE  SAMUELS said  he did  not want  to put  a further                                                               
burden on the victim by using the term, "competent evidence."                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  using,   "If presented  with                                                               
sufficient evidence."                                                                                                           
                                                                                                                                
CHAIR McGUIRE  suggested just using "evidence",  not "sufficient"                                                               
or "competent."                                                                                                                 
                                                                                                                                
MS. CARPENETI said  she thought that using  just "evidence" would                                                               
be fine.                                                                                                                        
                                                                                                                                
Number 2196                                                                                                                     
                                                                                                                                
CHAIR McGUIRE moved to adopt Conceptual Amendment 2, as follows:                                                                
                                                                                                                                
     Page 1, line 4                                                                                                             
     After shall                                                                                                            
     Insert "when presented with evidence"                                                                                      
                                                                                                                                
CHAIR McGUIRE noted  that there are other areas of  the bill that                                                               
would need  conforming amendments; for  example, page 1,  line 9.                                                               
She indicated  that the  intent of Conceptual  Amendment 2  is to                                                               
allow the drafter to make the necessary conforming changes.                                                                     
                                                                                                                                
Number 2163                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  asked  whether   there  were  any  objections  to                                                               
Conceptual Amendment  2.  There being  none, Conceptual Amendment                                                               
2 was adopted.                                                                                                                  
                                                                                                                                
Number 2150                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  spoke about Conceptual Amendment  3 which                                                               
reads [original punctuation provided]:                                                                                          
                                                                                                                                
     Sec. 47.12.120 Judgments and orders                                                                                        
                                                                                                                                
     (4)  order  the  minor  and   minor's  parent  to  make                                                                    
     suitable restitution in  lieu of or in  addition to the                                                                    
     court's   order  under   (1),  (2)   or  (3)   of  this                                                                    
     subsection; under this paragraph,                                                                                          
          (A) except as provided in (B) of this paragraph,                                                                      
          the court may not refuse to make an order of                                                                          
          restitution to benefit the victim of the act of                                                                       
          the minor that is the basis of the delinquency                                                                        
          adjudication;...                                                                                                      
                                                                                                                                
     New section:                                                                                                             
                                                                                                                                
     The court  may take  into consideration  the delinquent                                                                  
     minor's  ability to  pay past  age  19, or  the age  in                                                                  
     which the  court retains  jurisdiction over  the minor,                                                                  
          when determining the amount of the order of                                                                         
     restitution.                                                                                                             
                                                                                                                                
REPRESENTATIVE  SAMUELS explained  Conceptual  Amendment 3  would                                                               
allow  the court  to take  into  consideration [the  dependant's]                                                               
ability to  pay when between  the ages of 17  and 19.   It states                                                               
that  the  court   may  look  at  [a  minor's]   ability  to  pay                                                               
[restitution] later  on in life.   He emphasized  that Conceptual                                                               
Amendment 3 contains the word "may",  thus the court would not be                                                               
mandated to [consider this point].                                                                                              
                                                                                                                                
Number 2082                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS moved to adopt Conceptual Amendment 3.                                                                   
                                                                                                                                
Number 2078                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  objected for  discussion purposes.   He                                                               
said he does not  want to limit the age to 19.   Rather, he wants                                                               
to  give the  court the  discretion to  spread the  payments out,                                                               
regardless of the age of the juvenile.                                                                                          
                                                                                                                                
REPRESENTATIVE  SAMUELS said  his intent  is  to get  rid of  the                                                               
artificial  barrier of  age, and  referred  the language  labeled                                                               
"New Section", which says, "past age  19."  He said sometimes the                                                             
jurisdiction of the  court goes to age 21, and  agreed that there                                                               
should be a payment schedule.                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG said he  supported the idea [of removing                                                               
age restrictions], but  gave an example of a 13  year-old who has                                                               
caused  $1,000 worth  of  damage.   The  court  may  say to  make                                                               
payments which  might end  before the  minor is 19.   He  said he                                                               
would like to see that situation addressed as well.                                                                             
                                                                                                                                
REPRESENTATIVE  SAMUELS   said  if   the  payment   schedule  was                                                               
included, the  problem would be  addressed.  The reason  it says,                                                               
"may" is for just such cases involving younger kids.                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  understood the meaning  to be,                                                               
"it can be a  series of payments, and it can  extend past the age                                                               
of majority."   He indicated that he wanted to  see the bill with                                                               
the inclusion  of Conceptual  Amendment 3  before moving  it from                                                               
committee.  He then withdrew his objection.                                                                                     
                                                                                                                                
Number 1987                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE asked  if  there were  any  further objections  to                                                               
Conceptual Amendment  3.  There being  none, Conceptual Amendment                                                               
3 was adopted.                                                                                                                  
                                                                                                                                
REPRESENTATIVE   GARA   requested   Ms.  Carpeneti   respond   to                                                               
constitutional  issues.   He  said  he wants  see  that the  bill                                                               
orders   as  much   restitution   as   possible,  without   being                                                               
unconstitutional.   He  asked  if a  violation  of a  restitution                                                               
order counted as a violation of probation.                                                                                      
                                                                                                                                
MS. CARPENETI replied that it did.                                                                                              
                                                                                                                                
REPRESENTATIVE GARA  stated that  if probation is  violated, [the                                                               
defendant] can be  put in jail for the remainder  of the original                                                               
sentence.  He asked if that statement is correct.                                                                               
                                                                                                                                
MS. CARPENETI replied that it is.                                                                                               
                                                                                                                                
REPRESENTATIVE   GARA  said,   then,  that   there  could   be  a                                                               
circumstance  where  a  person was  recklessly  driving,  had  no                                                               
insurance,  and  injured a  family  causing  $1,000,000 worth  of                                                               
damages.   He  said there  is  no likelihood  that the  defendant                                                               
could come  up with  that amount.   Therefore, if  restitution of                                                               
the full amount  is ordered by the court, and  the defendant gets                                                               
out of  jail and is  unable to make  all of the  payments, he/she                                                               
will be thrown in jail because  of a violation of the restitution                                                               
order.  He  asked if there was a possible  due process problem in                                                               
that situation.                                                                                                                 
                                                                                                                                
MS. CARPENETI  replied that  there is no  debtor's prison  in the                                                               
U.S., but  noted that AS 12.55.051(a)  specifically addresses the                                                               
problem.  If  a probation violation is only because  of a lack of                                                               
payment  of  restitution  and the  defendant  shows  that  he/she                                                               
cannot pay, they cannot be imprisoned.                                                                                          
                                                                                                                                
Number 1872                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  said he was  comforted by [the  statute] but                                                               
wanted to make sure that HB 357 would not conflict with it.                                                                     
                                                                                                                                
MS. CARPENETI asked  if he is worried about  the language, "shall                                                               
pay restitution."                                                                                                               
                                                                                                                                
REPRESENTATIVE GARA  said he is  worried that if [the  bill] were                                                               
passed, that it would conflict with [a statute] on the books.                                                                   
                                                                                                                                
MS.  CARPENETI  said she  did  not  see  a conflict  because  the                                                               
constitution says a victim has  the right to restitution and this                                                               
bill  says   [the  victim]  has   the  right  to  the   order  of                                                               
restitution.                                                                                                                    
                                                                                                                                
REPRESENTATIVE     GARA    mentioned     Southerland    Statutory                                                             
Construction, which he  described as a legal  treatise that deals                                                             
with conflicting statutes.  He  cautioned that the committee stay                                                               
within this  treatise's rules, adding  that sometimes  when there                                                               
are  two  conflicting  statutes,  the later  one  supercedes  the                                                               
earlier one, which is invalidated.   He surmised that such is not                                                               
the  bill's intention,  and suggested  that this  idea should  be                                                               
stated somewhere [in  the bill], and asked  Ms. Carpeneti whether                                                               
she agreed.                                                                                                                     
                                                                                                                                
MS.  CARPENETI replied  that stating  the intent  in this  public                                                               
hearing, which is being recorded, is probably [sufficient].                                                                     
                                                                                                                                
REPRESENTATIVE GARA said  he didn't think that  people would rely                                                               
on what is said in this hearing.                                                                                                
                                                                                                                                
MS. CARPENETI stated  again that she did not see  a problem.  She                                                               
said she  thought it  was clear  [in the  bill] that  a procedure                                                               
needed to be followed; whatever is ordered.                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS  pointed  out  that the  victim  has  the                                                               
constitutional right to restitution.                                                                                            
                                                                                                                                
Number 1718                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG said that  when the legislature passes a                                                               
law  and doesn't  specifically affect  other statutes,  the court                                                               
will  construe them  harmoniously and  will find  that the  prior                                                               
statute  survives.    He  said he  agrees  with  Ms.  Carpeneti's                                                               
interpretation.                                                                                                                 
                                                                                                                                
CHAIR McGUIRE  opined that there  has been  sufficient discussion                                                               
on the  record regarding this issue  to show that this  bill does                                                               
not  mean to  supercede AS  12.55.501(a).   She pointed  out that                                                               
Representative  Samuels  is  correct   [regarding  the  right  to                                                               
restitution];  Article  I,  Section   24,  of  the  Alaska  State                                                               
Constitution  says   that  crime   victims  have  the   right  to                                                               
restitution from the accused.                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG turned  to Section 3, page  2, lines 12-                                                               
14, and  noted that the court  may order a payment  schedule.  He                                                               
asked if it is correct  that in considering the payment schedule,                                                               
the court could consider the defendant's ability to pay.                                                                        
                                                                                                                                
REPRESENTATIVE SAMUELS said that is the intent.                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  that with  that clarification  he                                                               
would decline to offer an amendment.                                                                                            
                                                                                                                                
REPRESENTATIVE GARA said  he was going to vote for  the bill, but                                                               
added that  most attorneys  do not  look up  legislative history,                                                               
especially in criminal cases.                                                                                                   
                                                                                                                                
Number 1587                                                                                                                     
                                                                                                                                
LINDA  WILSON, Deputy  Director,  Public  Defender Agency  (PDA),                                                               
Department of  Administration (DOA), thanked the  sponsors of the                                                               
bill  for the  changes  to  it.   She  then suggested  additional                                                               
wording,  "at  the request  of  the  victim,"  to show  that  the                                                               
victims are exercising their right  to the restitution.  She said                                                               
she really  appreciates the removal  of the section  that applied                                                               
to  juvenile  court jurisdiction.    She  explained that  when  a                                                               
petition to revoke probation is  filed, and the person comes into                                                               
court and demonstrates  that the inability to pay  was not wilful                                                               
because he/she  could not  make the payments,  then they  get put                                                               
back  on  probation  and  are   put  on  a  more  doable  payment                                                               
schedule..  Her  point, however, is that a whole  new hearing has                                                               
to be  scheduled because  of not considering  in the  first place                                                               
the defendant's ability  to pay.  In conclusion,  she opined that                                                               
the amendments have been a big improvement to the bill.                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  if  Ms. Wilson  had  any  other                                                               
changes to suggest that hadn't been discussed yet.                                                                              
                                                                                                                                
MS. WILSON suggested  that on page 1, line 4,  instead of saying,                                                               
"unless   the  victim   or   other   person  expressly   declines                                                               
restitution,"  replace it  with,  "shall at  the  request of  the                                                               
victim,".                                                                                                                       
                                                                                                                                
REPRESENTATIVE SAMUELS said he was  not in favor of that [change]                                                               
because of the burden it puts on the victim to appear in court.                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  he wasn't  suggesting  that  the                                                               
victim go to  court, but rather that he/she simply  signs a piece                                                               
of paper.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  SAMUELS indicated  that he  still objects  to the                                                               
suggested change.                                                                                                               
                                                                                                                                
CHAIR McGUIRE asked  whether there was further  discussion on the                                                               
bill.  Hearing none, she asked for a motion.                                                                                    
                                                                                                                                
Number 1343                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved [to adopt the  proposed committee                                                               
substitute  (CS)  for  HB 357,  Version  23-LS1384\H,  Luckhaupt,                                                               
1/29/04,   as    amended,   from   committee    with   individual                                                               
recommendations and the accompanying  fiscal notes].  There being                                                               
no  objection,   CSHB  357(JUD)  was  reported   from  the  House                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                
HB 397 - DEFENSE CONTACTS WITH VICTIMS & WITNESSES                                                                            
                                                                                                                                
Number 1306                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be HOUSE BILL NO. 397, "An  Act relating to defense contacts with                                                               
and  recordings  of  statements  of  victims  or  witnesses;  and                                                               
amending Rule 16, Alaska Rules of Criminal Procedure."                                                                          
                                                                                                                                
CHAIR McGUIRE,  speaking sponsor  of HB  397, explained  that she                                                               
was  contacted by  a constituent  whose 16-year-old  daughter was                                                               
raped.  The  girl told her parents, the  investigation was begun,                                                               
and charges  were filed.  While  home alone, the girl  received a                                                               
phone call from  the perpetrator's defense attorney  who asked if                                                               
she would be willing  to talk to him.  Agreeing  to drive down to                                                               
the public  defender's office  before her  parents got  home, the                                                               
girl believed that she would  be learning about case developments                                                               
during the  meeting and  wanted to  give her  side of  the story.                                                               
Although   her  parents   were   not  included,   nor  asked   to                                                               
participate, the public defender  recorded the girl's statements,                                                               
some of which were ultimately used  against her.  Later, when her                                                               
parents  found out  about this,  they filed  a claim  against the                                                               
Public Defender  Agency (PDA) because it  was their understanding                                                               
that there had to be parental consent before questioning.                                                                       
                                                                                                                                
CHAIR  McGUIRE said  she thought  there was  a loophole,  in that                                                               
recorded  statements  are  treated  differently  than  unrecorded                                                               
statements.   She  said  that  HB 397  would  change  the law  to                                                               
require parental  consent before  a minor  speaks with  a defense                                                               
investigator  or  defense  attorney.    It  allows  a  parent  or                                                               
guardian to obtain  a transcript of the  recorded statements made                                                               
by  the minor  victim  or witness.    She said  the  bill has  an                                                               
important exemption  in that if  the victim's parent  or guardian                                                               
is the  defendant, the victim  would not have to  obtain parental                                                               
consent.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE noted that one  draft version of the bill addressed                                                               
only the [aforementioned] "loophole."   However, while working on                                                               
the  bill,  the  drafters   noticed  inconsistencies  in  [other]                                                               
sections  of  statute,  so  HB  397 now  also  deals  with  those                                                               
inconsistencies.  Mentioning  that there may not  be enough votes                                                               
in the Senate to pass the  bill's proposed court rule change, she                                                               
indicated that  at the very  least, she  wants to get  the bill's                                                               
intent into law.                                                                                                                
                                                                                                                                
Number 0943                                                                                                                     
                                                                                                                                
VANESSA  TONDINI, Staff  to Representative  Lesil McGuire,  House                                                               
Judiciary Standing Committee,  Alaska State Legislature, relayed,                                                               
on  behalf of  Chair  McGuire,  sponsor, that  HB  397 amends  AS                                                               
12.61.120(b),   AS   12.61.120(c),   AS  12.61.120(d),   and   AS                                                               
12.61.120(e).  She pointed out that  in almost all other areas of                                                               
the  law  where  minors'  rights  are an  issue,  a  juvenile  is                                                               
normally deemed  not competent to  waive those rights.   She said                                                               
the changes to  [AS 12.61.120] are consistent  with Alaska's laws                                                               
and policies.   Upon adding the additional step  that the defense                                                               
team  would have  to go  through in  order to  contact the  minor                                                               
victim or witness, the drafters  felt that an indirect court rule                                                               
amendment should  be included in  the bill  as a safeguard.   She                                                               
remarked that  the intent  of the bill's  current language  is to                                                               
make all sections pertaining to this issue conforming.                                                                          
                                                                                                                                
REPRESENTATIVE GARA opined  that what Chair McGuire  is calling a                                                               
loophole  is simply  a  policy  choice.   He  suggested that  the                                                               
reason why  current law  says that if  the statement  is recorded                                                               
then  parental   consent  is   not  needed,   is  to   avoid  the                                                               
circumstance where someone tricks  a minor into [testifying], and                                                               
there is no tape or record of  it.  A prior legislature said that                                                               
if there is a recording, it  is possible to tell whether there is                                                               
any  untoward  conduct  going  on.   He  explained,  if  parental                                                               
consent is required, the defense  investigator has to go back two                                                               
or three times to be [present]  at the same place that the parent                                                               
and victim  are together.   He  said HB 397  is going  to require                                                               
more investigative work  [on the defense's part],  adding that he                                                               
wants  the  playing field  to  be  level.    He asked  whether  a                                                               
different rule  was being  adopted for the  defense than  for the                                                               
prosecution, or  whether the rule  would be  the same.   In other                                                               
words,  if  the investigator  for  the  defense  now has  to  get                                                               
consent  from  the parent,  does  the  same  rule apply  for  the                                                               
prosecution.                                                                                                                    
                                                                                                                                
MS. TONDINI  opined that  the current  policy and  purpose behind                                                               
these statutes assumes that victims  and witnesses are at risk of                                                               
harassment, intimidation,  and invasion of privacy  when they are                                                               
unwillingly thrust into the legal  system.  These potential harms                                                               
increase drastically when  the victim is a minor, she  said.  She                                                               
went on to  say that AS 12.61.120(b) deals  with situations where                                                               
the defendant is  proceeding without counsel and is  deemed to be                                                               
dangerous  and poses  a threat  to the  victim or  witness.   The                                                               
court  will protect  the  address and  telephone  number [of  the                                                               
victim or witness]  by providing it to a third  party who acts as                                                               
the  defendant's  representative  in  contacting  the  victim  or                                                               
witness.     If  the   victim  or  witness   is  a   minor,  [the                                                               
representative] must go through the parent.                                                                                     
                                                                                                                                
MS. TONDINI noted that Section 3  specifies that if the victim or                                                               
witness is  a minor, [the  defendant or defending  attorney] must                                                               
also obtain permission  from the parent to contact  the victim or                                                               
witness.   Notification of  the rights of  the victim  or witness                                                               
must also  be given to  the parents.   She said that  proposed AS                                                               
12.61.120(d)  changes the  requirement that  if the  statement is                                                               
being recorded, parental consent is  required.  The bill says, in                                                               
proposed AS 12.61.120(e),  the parent or guardian  may obtain the                                                               
transcript  of  the recording.    She  explained that  Section  6                                                               
states  that if  the defendant  is  the parent  or guardian,  the                                                               
defendant doesn't  have the appropriate authority  to provide the                                                               
consent.                                                                                                                        
                                                                                                                                
Number 0378                                                                                                                     
                                                                                                                                
LINDA  WILSON, Deputy  Director,  Public  Defender Agency  (PDA),                                                               
Department   of   Administration   (DOA),   said   there   is   a                                                               
constitutional provision  that says  to treat all  witnesses with                                                               
fairness and  dignity.   She said that  the question  of fairness                                                               
toward  criminal  defense investigators  needs  to  be looked  at                                                               
because this  bill does  not apply  to police  investigators, who                                                               
are  not required  to get  the consent  of a  parent before  they                                                               
interrogate or  question a minor  witness or alleged  victim, nor                                                               
is a civil investigator required to  do so.  The bill is singling                                                               
out criminal  defense investigators  and would  impair legitimate                                                               
investigative efforts.   She said  those efforts go  to providing                                                               
the  defendant with  his/her constitutionally  mandated right  of                                                               
effective assistance from counsel.                                                                                              
                                                                                                                                
MS.   WILSON   noted   that   the   statute   requiring   written                                                               
authorization for  a non-recorded  statement is in  AS 12.61.125,                                                               
which  is  not mentioned  in  HB  397  at  all.   That  section's                                                               
specific purpose  is related to  victims and witnesses  of sexual                                                               
offenses, and the  example that Chair McGuire gave was  a case of                                                               
an  alleged  sexual offense,  Ms.  Wilson  said, adding  that  AS                                                               
12.61.120  says  nothing,  currently,   about  requiring  a  non-                                                               
recorded statement to have parental consent.                                                                                    
                                                                                                                                
MS. WILSON  explained that  when one  has a  defense investigator                                                               
doing  a legitimate  investigative effort,  it is  another search                                                               
for the truth.   When good work  is done by the  defense team, it                                                               
often results  in flushing out relevant  facts in a case.   Those                                                               
facts can  ultimately resolve  the case,  short of  trial, either                                                               
because  all of  the  problems have  been  resolved, or  possible                                                               
defenses have  been found.  There  may be a situation  where, the                                                               
first  time  the witness  is  allowed  to  be questioned  by  the                                                               
defense team, is at  trial.  More cases may go  to trial if there                                                               
are less  opportunities and more  barriers to the ability  of the                                                               
defense investigators to do the work they need to do.                                                                           
                                                                                                                                
MS.  WILSON said  the focus  of  the bill  seems to  be from  the                                                               
perspective of the sex offense case,  so it is possible that this                                                               
could be  limited to simply changing  AS 12.61.125.  It  would be                                                               
an easy  fix to apply  the requirement for  written authorization                                                               
from the victim  or witness, whether [the  testimony is] recorded                                                               
or not  recorded, she said, adding  that it could be  expanded to                                                               
every  case dealing  with  witnesses.   There  are concerns  with                                                               
older teens  getting written or  specific consent from  a parent.                                                               
There is going to be  more investigative evidence required by the                                                               
defense.   The bill is  singling out the  criminal investigators,                                                               
she said,  noting that  it this  does not  just say  "notify", it                                                               
says, "get their consent".                                                                                                      
                                                                                                                                
TAPE 04-8, SIDE A                                                                                                             
Number 0001                                                                                                                     
                                                                                                                                
MS.  WILSON concluded  by  remarking that  under  HB 397,  police                                                               
still  wouldn't have  to  get  the consent  of  the parents  even                                                               
though the defense  would.  She said she is  not sure that that's                                                               
very fair.                                                                                                                      
                                                                                                                                
CHAIR McGUIRE  explained that although the  aforementioned sexual                                                               
assault  case  was what  prompted  her  to  look at  the  current                                                               
statutes regarding parental notification,  the intent was to have                                                               
HB 397 apply to more than just sexual assault cases.                                                                            
                                                                                                                                
Number 0058                                                                                                                     
                                                                                                                                
STEPHEN BRANCHFLOWER, Director, Office  of Victims' Rights (OVR),                                                               
Alaska State  Legislature, turned  to some  of the  issues raised                                                               
earlier in the discussion.   Regarding the phrase, the search for                                                               
the truth, he suggested that the  meaning of that phrase could be                                                               
debated at  length because what  the truth  is to the  defense is                                                               
oftentimes  far  different  than  what   the  truth  is  to  [the                                                               
prosecution].  He elaborated:                                                                                                   
                                                                                                                                
     I've  heard  judges  ...  [remark  that]  the  criminal                                                                    
     justice  machine  does  not  provide  a  level  playing                                                                    
     field.   And I agree with  that, but I have  to qualify                                                                    
     that  by  saying  that  the reason  it's  not  a  level                                                                    
     playing field is [that] in  many respects, the criminal                                                                    
     justice system favors the  defendant against the state.                                                                    
     So  it's  not level;  not  because  the state  has  the                                                                    
     advantage,  ...  [but]  because  the  defense  has  the                                                                    
     advantage.   Let  me  give you  some  examples. ...  In                                                                    
     response   to  Representative   Gara's  inquiry   about                                                                    
     whether  or  not we  had  ...  different standards  for                                                                    
     police and defendants, the answer  is yes, of course we                                                                    
     do.                                                                                                                        
                                                                                                                                
     But that's  not a  bad thing; there  are many  areas in                                                                    
     the  law   that  involve  different  standards.     For                                                                    
     example,  the  defense  starts out  with  ...  a  clean                                                                    
     slate, as  the judge  instructs the  jury, and  has the                                                                    
     presumption of  innocence.  That's something  the state                                                                    
     has to overcome,  so the scales of  justice don't start                                                                    
     off  equally  balanced.   The  defendant  has  a  Fifth                                                                    
     Amendment right  not to be called  upon, which includes                                                                    
     -  and it  has been  interpreted  to include  - not  to                                                                    
     require him to  share the discovery.  A  few years ago,                                                                    
     the  legislature  promulgated  a  reciprocal  discovery                                                                    
     statute in  an effort  to level  the playing  field, so                                                                    
     that if  the defendant wanted discovery,  he would have                                                                    
     to provide  discovery to the state  to avoid surprises.                                                                    
     And that was declared unconstitutional.                                                                                    
                                                                                                                                
Number 0201                                                                                                                     
                                                                                                                                
MR. BRANCHFLOWER continued:                                                                                                     
                                                                                                                                
     So  yes, there  are different  standards, but  ... each                                                                    
     different  standard, I  believe, serves  ... legitimate                                                                    
     public policy.   Now,  it's true  that the  defense has                                                                    
     the  right  to conduct  their  own  investigation in  a                                                                    
     criminal  case, and  this bill  does  not impair  that.                                                                    
     But the truth  of the matter is  that the investigation                                                                    
     that  the  defense  does  is   not  anything  like  the                                                                    
     investigation the  police do, because the  police start                                                                    
     off at ground  zero.  They start out in  the dark; they                                                                    
     don't know what the facts  are, they don't know who the                                                                    
     responsible person  is.  By  the time the  defendant is                                                                    
     charged,  after they  determine  who's responsible  and                                                                    
     after the ... state  gets involved, the public defender                                                                    
     has the benefit, through [the  Alaska Rules of Criminal                                                                    
     Procedure] Rule  16, of all  that discovery.   They get                                                                    
     copies of the lab reports,  ... all the police reports,                                                                    
     the statements, et cetera.                                                                                                 
                                                                                                                                
     So when  they go  out to  conduct an  investigation, as                                                                    
     they did  in [the Brooke]  case, they are  not starting                                                                    
     out from  ground zero to  find out what  happened; they                                                                    
     are  ... not  necessarily trying  to find,  quote, "the                                                                    
     truth." ... [What] they're trying  to do is sustain the                                                                    
     burden that they have, which  is the burden of creating                                                                    
     reasonable doubt.   It's not proving the  case beyond a                                                                    
     reasonable  doubt; it's  creating doubt.   And  the way                                                                    
     they do  that is  by obtaining a  statement, preferably                                                                    
     recorded, ...  in order to  impeach witnesses  at trial                                                                    
     in an effort  to undermine the state's case.   And when                                                                    
     that  happens,   when  mid-trial   impeachment  occurs,                                                                    
     witnesses  lose  credibility,  and  it  makes  it  very                                                                    
     difficult for  12 jurors to  agree beyond  a reasonable                                                                    
     doubt.   Oftentimes  the state  is surprised,  and that                                                                    
     can prejudice the case.                                                                                                    
                                                                                                                                
MR. BRANCHFLOWER concluded:                                                                                                     
                                                                                                                                
     Now, the bill that you have  before you, all it does is                                                                    
     it requires  parental input when  the defendant  or the                                                                    
     defense   attorney   wishes   to  obtain   a   recorded                                                                    
     statement.   And  that brings  up  to a  level ...  the                                                                    
     status  quo  regarding  when  the  public  defender  or                                                                    
     defense  investigator wishes  to obtain  a non-recorded                                                                    
     or written  interview from  a minor.   It  just extends                                                                    
     the same  protection to the  same class of  ... people,                                                                    
     which are the  minors.  I think it  also serves another                                                                    
     interest,  which is,  it  helps  parents and  guardians                                                                    
     learn about what's going on  in their children's lives,                                                                    
     and it helps  them make smart decisions,  it helps them                                                                    
     make decisions that hopefully  avoid bad decisions that                                                                    
     will have lifelong lasting effect.   So yes, we do have                                                                    
     different  standards,  but  I   think  that  there  are                                                                    
         legitimate public policies that underlie those                                                                         
     different standards - on both sides.  Thank you.                                                                           
                                                                                                                                
Number 0430                                                                                                                     
                                                                                                                                
MS. TONDINI, turning to an  issue raised by Ms. Wilson, explained                                                               
that AS  12.61.120 was amended  because AS  12.61.125(2)(A) reads                                                               
as  follows:   "if the  statement is  taken as  a recording,  the                                                               
recording  is taken  in compliance  with AS  12.61.120" and  thus                                                               
refers back to AS 12.61.120.   Therefore, AS 12.61.120 is amended                                                               
in  HB 397.    She further  explained that  the  only reason  the                                                               
addition was made in this  section is because the procedures with                                                               
which the recording needs to  comply are extensively specified in                                                               
AS  12.61.120.   The desire  was to  ensure that  those recording                                                               
procedures  were  also  followed  in cases  dealing  with  sexual                                                               
offenses.    "If  what  we're   saying  is  parental  consent  is                                                               
inherently   required  because   these   minors  aren't   legally                                                               
competent to waive these rights, then  we should make it clear in                                                               
the statutes  and be  uniform and  make sure  it applies  both to                                                               
recorded and  nonrecorded statements for sexual  offenses and all                                                               
offenses," she clarified.                                                                                                       
                                                                                                                                
REPRESENTATIVE  GARA acknowledged  that he  and Mr.  Branchflower                                                               
disagree  on this  matter and  remarked that  the rules  can't be                                                               
constructed under the assumption that  all people who are charged                                                               
are guilty.   He pointed out that sometimes when  things are made                                                               
easier  to convict  guilty people,  it  also makes  it easier  to                                                               
convict  innocent people.   The  aforementioned  is the  struggle                                                               
[before the legislature].  Representative  Gara posed a situation                                                               
in which there  is a defendant who is being  wrongly charged with                                                               
a crime, who's  being threatened that he/she will go  to jail for                                                               
something   that   individual   didn't    do.      Assuming   the                                                               
aforementioned  case,  Representative  Gara questioned  why  it's                                                               
being made easier  for the prosecution to prove  the case against                                                               
the innocent  person than is being  made for the defense  team to                                                               
prove that the  person is innocent.  He emphasized  that it seems                                                               
the rules should  be consistent.  Therefore,  if the investigator                                                               
for one side [is required  to] obtain parental consent, so should                                                               
the other side.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  GARA suggested  developing a  role that  protects                                                               
people in  the greatest  manner possible  and perhaps  to protect                                                               
victims and  minors, parental consent should  always be required.                                                               
He said  that he didn't  have a problem with  the aforementioned,                                                               
although he  did have a problem  if one side is  tilted such that                                                               
one side  has an easier  time proving  their case than  the other                                                               
side.  He acknowledged that the  playing field is tilted in favor                                                               
of one side in that the  defendant starts with the presumption of                                                               
innocence, which he viewed as a  good rule that he didn't want to                                                               
eliminate.  However,  he said he didn't believe it's  a good rule                                                               
to  tilt it  here.   If  there is  a possibility  that a  defense                                                               
investigator will act  in an abusive manner toward  a minor, then                                                               
wouldn't  it  also  be  possible that  an  investigator  for  the                                                               
prosecution will investigate the case  in an abusive way toward a                                                               
minor as  well.  Shouldn't one  be concerned about that  as well,                                                               
he asked.                                                                                                                       
                                                                                                                                
MR.  BRANCHFLOWER  related  that  most  cases  involving  legally                                                               
innocent people  are screened out, although  he acknowledged that                                                               
from time to  time juries do return not guilty  verdicts.  In the                                                               
cases  with which  Mr. Branchflower  is familiar,  he said  those                                                               
verdicts represented a failure of  proof rather than a not guilty                                                               
individual.  Mr. Branchflower opined  that it is neither workable                                                               
nor  necessary to  impose the  same requirements  on police  with                                                               
regard to contacting  parents because the police  most often have                                                               
the  same  best  interest  of   the  witnesses,  including  minor                                                               
witnesses, as the parents do.   The interests of the parents, the                                                               
victims,  and the  police  are  all in  sync  because all  desire                                                               
holding the culpable person accountable.   A police officer isn't                                                               
looking for  inconsistent statements to impeach  an individual on                                                               
trial.  Therefore,  society, through the police,  has an interest                                                               
in sustaining the burden in  order to hold offenders accountable.                                                               
Society's   duty  to   protect   victims  is   mandated  in   the                                                               
constitution, he highlighted.  Mr.  Branchflower pointed out that                                                               
the legislature  has an obligation  to protect its  citizens from                                                               
undue  influence,  which  is  exactly   what  the  statute  does,                                                               
especially with regard to minors.                                                                                               
                                                                                                                                
Number 0934                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out  that a [minor  female] has                                                               
the  right  to  privacy  of  her own  body  with  respect  to  an                                                               
abortion, and therefore doesn't  have to obtain parental consent.                                                               
However, [this legislation] won't let  a minor individual talk to                                                               
the defense  without parental consent.   Therefore, he questioned                                                               
whether  the  witness  has  a constitutional  right  to  talk  to                                                               
whomever they want.                                                                                                             
                                                                                                                                
[HB 397 was held over.]                                                                                                         
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
Number 0978                                                                                                                     
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 3:05 p.m.                                                                 

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