Legislature(1995 - 1996)
01/22/1996 01:05 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
1:05 a.m.
January 22, 1996
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
HOUSE BILL NO. 314
"An Act relating to the crime of violating a domestic violence
restraining order."
- PASSED CSHB 314(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 326
"An Act relating to disclosures in contacts between crime victims
and witnesses and the defense; relating to recordings of statements
of crime victims and witnesses by the defense; and amending Alaska
Rule of Evidence 613."
- HEARD AND HELD
HOUSE BILL NO. 333
"An Act relating to licensure requirements for employees of the
office of public advocacy and the Public Defender Agency."
- PASSED OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 314
SHORT TITLE: VIOLATING DOMESTIC VIOLENCE ORDERS
SPONSOR(S): REPRESENTATIVE(S) PARNELL, Robinson, Bunde, Elton
JRN-DATE JRN-PG ACTION
04/20/95 1399 (H) READ THE FIRST TIME - REFERRAL(S)
04/20/95 1400 (H) JUDICIARY
04/24/95 1486 (H) COSPONSOR(S): ELTON
01/22/96 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 326
SHORT TITLE: REQUIRE CONSENT TO RECORD WITNESS/VICTIM
SPONSOR(S): REPRESENTATIVE(S) PARNELL
JRN-DATE JRN-PG ACTION
04/29/95 1665 (H) READ THE FIRST TIME - REFERRAL(S)
04/29/95 1665 (H) JUDICIARY
01/22/96 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 333
SHORT TITLE: BAR MEMBERSHIP:PUBLIC DEFENDER/ADVOCATE
SPONSOR(S): REPRESENTATIVE(S) PARNELL
JRN-DATE JRN-PG ACTION
05/03/95 1815 (H) READ THE FIRST TIME - REFERRAL(S)
05/03/95 1815 (H) JUDICIARY
01/22/96 (H) JUD AT 01:00 PM CAPITOL 120
01/24/96 2520 (H) JUD RPT 6DP
01/24/96 2520 (H) DP: PORTER, VEZEY, FINKELSTEIN,
01/24/96 2520 (H) B.DAVIS, BUNDE, TOOHEY
01/24/96 2520 (H) INDETERMINATE FISCAL NOTE (ADM)
01/24/96 2520 (H) REFERRED TO RULES
WITNESS REGISTER
REPRESENTATIVE SEAN PARNELL
Alaska State Legislature
State Capitol Building, Room 515
Juneau, Alaska 99801-1182
Telephone: (907) 465-2995
POSITION STATEMENT: Sponsor of HB 314, HB 326, and HB 333.
DEAN GUANELI
Chief Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Suggested some amendments to the proposed
CSHB 314(JUD).
BARBARA BRINK, Deputy Public Defender
Public Defender Agency
Department of Administration
900 West Fifth, Suite 200
Anchorage, Alaska 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Testified against CSHB314
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward Street, Room 501
Juneau, Alaska 99801
Telephone: (907) 586-3650
POSITION STATEMENT: Supported CSHB 314
FRED DEWEY, Defense Attorney
1101 West 7th Street
Anchorage, Alaska 99501
Telephone: (907) 276-3299
POSITION STATEMENT: Testified against CSHB 314
JAYNE ANDREEN, Executive Director
Council on Domestic Violence and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Supported CSHB 314
KEVIN McCOY, Federal Public Defender
Office of Federal Defenders for the District of Alaska
510 L Street, Suite 400
Anchorage, Alaska 99501
Telephone: (907) 271-2277
POSITION STATEMENT: Testified on CSHB 314
ROBERT BUNDY, United States Attorney
District of Alaska
222 West 7th Avenue, Room 253
Anchorage, Alaska 99501
Telephone: (907) 271-5071
POSITION STATEMENT: Testified on CSHB 314
JOHN SALEMI, Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on HB 333
BRANT McGEE, Director
Office of Public Advocacy
Department of Administration
900 West 5th Avenue, Suite 525
Anchorage, Alaska 99501-2090
Telephone: (907) 274-8816
POSITION STATEMENT: Testified on HB 333
ACTION NARRATIVE
TAPE 96-5, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:05 a.m. Members present at the call to order were
Representatives Bettye Davis, Finkelstein, Toohey, Bunde Green and
Porter. Chairman Porter noted Representative Vezey was attending
another meeting but would join the Judiciary Committee later. A
quorum was present. This meeting was teleconferenced to Anchorage.
HB 314 - VIOLATING DOMESTIC VIOLENCE ORDERS
HB 326 - REQUIRE CONSENT TO RECORD WITNESS/VICTIM
CHAIRMAN PORTER informed the committee that they are scheduled to
hear HB 314, "An Act relating to the crime of violating a domestic
violence restraining order," and HB 326 "An Act relating to
disclosures in contacts between crime victims and witnesses and the
defense; relating to recordings of statements of crime victims and
witnesses by the defense; and amending Alaska Rule of Evidence
613." He explained both of the bills remain intact, but have been
merged into one committee substitute (CS). There are a couple of
minor adjustments to CSHB 314 that will be explained. Chairman
Porter asked Representative Parnell to explain the bill
REPRESENTATIVE SEAN PARNELL, sponsor of HB 314 and HB 326, asked if
the committee has adopted the CS as the working document.
Number 161
REPRESENTATIVE CON BUNDE moved that the committee adopt CSHB 314 as
the committee's working document. CHAIRMAN PORTER said there has
been a motion to adopt CSHB 314(JUD), Version F, dated January 22,
1996. He asked if there was an objection. Hearing none, CSHB
314(JUD) was before the committee.
Number 197
REPRESENTATIVE PARNELL explained CSHB 314 now contains two bills.
The first portion has to do with domestic violence restraining
orders and the second portion has to do with surreptitious taping.
With respect to domestic restraining orders under Title 25, a
person, upon a showing that they've been subjected to domestic
violence, can go into court and get a domestic violence restraining
order. He explained that by statute, the restraining orders can
include several provisions. It can restrain a person from being
within a certain distance from somebody. It can include making
somebody vacate a household. It can include keeping them out of a
person's vehicle. Basically, it keeps an individual away.
REPRESENTATIVE PARNELL said currently, if you violate a domestic
violence restraining order, a violation is defined in statute as
merely communicating directly or indirectly with the other party.
A violation does not include getting into a car with somebody.
CSHB 314 attempts to mirror those elements that are generally
included in a domestic violence restraining order. Representative
Parnell informed the committee members it is more of a technical
change, but it is an important one.
REPRESENTATIVE PARNELL said the second half of the bill relates to
surreptitious taping. This portion of the bill has three sections.
In general, the principle is that, if you are a criminal defendant
or are working for a defense attorney, you cannot go tape record
the statement of a crime victim or a witness without their consent.
In short, CSHB 314 says if you're a member of the defense team and
you're going to go tape a crime victim or a witness of a crime,
you'd have to give them notice that you're taping and get their
consent on the tape. Representative Parnell said that covers the
first two sections.
Number 380
REPRESENTATIVE BUNDE referred to the section about surreptitious
taping and said it is his understanding that the prosecution is not
allowed to tape. He asked Representative Parnell if he is asking
that it be even handed so that the defense not be allow to tape
without prior notification.
REPRESENTATIVE PARNELL explained the prosecution can tape under
certain circumstances. For instance, prosecution can tape if a
uniformed officer is present or if there is a court order. There
are some specific activities that can be taped by the prosecution.
He said testimony by the Department of Law (DOL) would cover those
issues.
REPRESENTATIVE BUNDE added that taping by the prosecution is only
done with the permission of the courts. REPRESENTATIVE PARNELL
said it can be done outside the permission of the courts. He said
he believed Dean Guaneli could answer that question better.
Representative Parnell explained the final section of CSHB 314
deals with victims and witnesses of sexual offenses. Basically it
states that if you are a victim or a witness of a sexual offense
and you have provided in writing that you do not want to be
contacted, the defense cannot contact you directly. There are
several ways you can get around that. One way is that the victim's
statement to the police is available through discovery. The
victim's (indisc.) to the victim from the Grand Jury proceedings
are also available. There is a provision in the criminal rules
where if you show good cause, you can take the deposition of a
victim regardless of what kind of an offense has occurred. There
are other avenues of information available to the defense.
Number 539
REPRESENTATIVE JOE GREEN said in essence, CSHB 314 codifies that
which is already used in law. CSHB 314 doesn't establish anything
that isn't presently done, it just brings it into the statute.
REPRESENTATIVE PARNELL said he doesn't think that is wholly
accurate. For instance, with the domestic violence restraining
order, there are some judges that will apply the statute very
literally which means that if there is no communication,
technically he is not in violation of a statute. Representative
Parnell said what he is trying to do is to get an even application
of the violation of the domestic violence restraining order. In
terms of codifying what is currently the case, it is his
understanding that a representative from the Public Defender's
office can go interview somebody could say, "I'm from the PD's
office and I'd like to ask you a couple of questions." That person
can then surreptitiously record a conversation. He said he doesn't
think that a crime victim or a witness has any lesser expectation
of privacy than any other person. They should be given notice of
the taping then give consent before they are taped.
Number 645
DEAN GUANELI, Chief Assistant Attorney General, Criminal Division,
Department of Law, referred to the surreptitious taping aspect of
the CS and said up until recently it was considered by the Alaska
Bar Association to be unethical conduct for an attorney to secretly
tape record somebody else's conversation. That ethics opinion was
consistent with other ethics opinions from around the country and
existed for a number of years. The Board of Governors of the
Alaska Bar Association was persuaded, however, that they ought to
amend that long standing practice. At least with respect to
criminal defense lawyers, their agents and investigators, it would
no longer be unethical for them to secretly record somebody's
conversation as long as they disclosed who they were. The process
leading to that decision was, in the view of many, flawed. In fact
the Ethics Committee, which is a committee of the Alaska Bar
Association, unanimously opposed that decision by the Board of
Governors. Nonetheless, the Board of Governor's did that and it
resulted in the legislation.
MR. GUANELI said the proposed CSHB 314 says, "O.K., if the
attorneys don't think it's unethical and if they're gonna anyway,
at least there are going to be some standards." You are going to
notify the person, who is contacted, with whom you are affiliated
and their consent is going to be recorded on the tape. If they ask
for a copy of the tape, you will give them a copy. CSHB 314 sets
some standards. Mr. Guaneli said he would address the question of
whether prosecutors can do that. During the discussions in the
Alaska Bar Association, many times it was stated that prosecutors
can secretly tape record. He said, "We can't." The police can do
surreptitious taping in a number of circumstances. He listed them
as follows, first, pursuant to a warrant by a court when there is
probable cause to believe that a crime has been committed. Mr.
Guaneli pointed out when someone says they wear a wire, you don't
just wire someone up and send them out. You've got to get a court
order to enable that to be done.
MR. GUANELI explained the second circumstance surreptitious taping
can occur is when you're dealing with someone in uniform. There
are a lot of police offices who, for their own safety, when they
pull someone over and give a traffic ticket, use a recorder to tape
everything that transpires. So when someone starts acting
outrageously and an arrest is made, the police officer is protected
by the recording and prevents misunderstandings. Police officers
don't need a court order at that time because they're in uniform.
Mr. Guaneli said the other exception when surreptitious taping can
be done is when you're calling the police station. Most people
recognized that when they call into a police station and there is
a beep on the line, their calls are being recorded. A court order
is not needed for that. Mr. Guaneli said defendants who are at the
police station and are being questioned, in many circumstances
having their conversations with the police recorded. In fact, the
Alaska Appellate Courts have required that the police make
recordings of their conversations with defendants so that there is
no misunderstanding about what was said. There is no
misunderstanding about the fact that they were read their rights
and they voluntarily gave up their right to remain silent.
MR. GUANELI said the police can make recordings with or without a
court order under limited circumstances. Prosecutors cannot.
According to the Alaska Bar Association, it is not unethical
conduct for defense attorneys to do it and the CSHB 314 sets some
standards for doing that.
Number 954
MR. GUANELI suggested some proposed changes that will make CSHB 314
better. The first changes the definition of witness. CSHB 314
defines a witness in terms of any person who it is believed might
have knowledge of the criminal case. Mr. Guaneli said the specific
language is on line 6. A witness is someone who is contacted
because they may have knowledge of the case, not because the person
believes they may have knowledge. This eliminates the excuse used
for not gaining consent for taping, such as the investigator didn't
know the person had knowledge so they weren't considered a witness.
In other words, the subjective intent of the person making the
recording or taking the statement shouldn't be relevant. It is
just whether or not that person is a witness in the common
parlance. He said he believes his proposal clarifies the issue.
MR. GUANELI said the second amendment, on page 3, right after line
30, defines what a statement means in this section. CSHB 314 does
a couple things. One, it says that with respect to any victim or
witness of any crime, you've got to notify them if they're being
tape recorded. The tape has to actually disclose the notification.
Then with respect to victims and witnesses of sexual offenses, if
you want to contact them and take their statement, you have to get
written permission and record their consent on tape. This double
requirement may not be appropriate. If you're getting it on the
tape and the victim discloses it on the tape, that ought to be
enough. Mr. Guaneli said by defining "statement" to mean written
or oral statements, but not including a properly recorded
statement, you'd take care of that double requirement.
Number 1118
CHAIRMAN PORTER asked if subsection "(f)" should be included. MR.
GUANELI responded, "Or it could be just another -- in this section
-- where it says `(e)' in this section `sexual offense means' and
`statement means.'" He noted he has a definition for statement.
You would define the word "statement." Mr. Guaneli said he would
propose that "statement" means a written or oral statement.
Number 1228
MR. GUANELI referred to his third amendment and said he thinks it
is the most important. This amendment is to specifically states
what the consequences are for violating these provisions. On page
3, lines 20 to 23, there is a provision that says that
surreptitious taping is inadmissible unless the court finds the
statement will constitute manifest injustice. He said he thinks
that in order to give the court some standards for making that
determination, some additional provisions are necessary and added
that if the statement is reliable, the evidence can't be obtained
from any other source and by not admitting the fact finding process
will be undermined. That gives the court some guidelines in making
this determination. He said we don't want the court to go
overboard in either direction to rule all of the statements
inadmissible because that is unfair to defendants if it is
something very important and exculpatory. On the other hand, we
don't want it to be loose so that all surreptitious taping would be
admitted because eliminating the deterrent value. He explained he
has a proposed amendment which incorporates those additional
requirements.
REPRESENTATIVE GREEN asked if this would replace lines 20 to 23.
MR. GUANELI said that is correct. He said the language currently
in lines 20 to 23 is only applicable in Section 125 and there is no
reason why it shouldn't also apply to the secret tape recording
provision as well. In other words, if we are to have some
(indisc.) value in this, we really need to apply it to both
circumstances. He suggested that a similar provision should also
apply to the secret tape recording.
Number 1280
REPRESENTATIVE GREEN asked if the sponsor is in agreement with the
amendments. MR. GUANELI said because of the time frames involved,
the sponsor saw the amendments shortly before the meeting began.
BARBARA BRINK, Deputy Public Defender, Public Defender Agency,
Department of Administration, testified via teleconference from
Anchorage. She informed the committee she has been an attorney and
an investigator for the Public Defender for 13.5 years. Ms. Brink
said she would give the committee the benefit of her experience
both as a lawyer and as an investigator to convince the committee
members why they should not pass CSHB 314. There are both legal
and policy reasons CSHB 314 isn't a good idea.
MS. BRINK said a defense investigator is the functional equivalent
of a police officer or a state trooper. These are the people who
(indisc.) by the lawyers to gather facts and to interview witnesses
to try to dig deeper into a case to determine what really went on.
It is unfair and in violation of equal protection to give the
police tools to use to investigate a case and yet deny those to the
defendant who is being accused of a crime. The police and law
enforcement can tape and video tape surreptitiously. They do not
have to announce it or get permission. Ms. Brink said the reason
they can do that is because there is no expectation of privacy when
you're talking to an identifiable police officer. Similarly, there
should be no expectation of privacy when you're talking to a
defense investigator. She said her defense investigator is
required by law to tell the witness that he is the defense
investigator, he works for the defendant, the witness has an
absolute right not to speak to them, and also has the right to have
the district attorney present with them. Therefore, CSHB 314 does
nothing to protect the privacy of that witness if the witness is
completely aware of who they are speaking to. CSHB 314 does
unfairly limit the investigators tools to investigate a case.
MS. BRINK pointed out that at least one state court in Louisiana
has specifically housed a statute license to be unconstitutional
and a violation of equal protection. Louisiana developed a statute
where defense investigators were not permitted to engage in
unannounced surreptitious tape recordings. This statute was found
to be an arbitrary and unreasonable classification. The courts
ruled that it violated both the federal constitution and state
constitution. Ms. Brink said she firmly believes that if CSHB 314
is passed, it will be found to be unconstitutional.
MS. BRINK said there are other states that have dealt with the
question of defense investigator tape recording. At least three
states have specifically upheld the defense right to do unannounced
tape recording including Arizona, Kentucky and Tennessee. She said
she has been unable to find any state that has introduced similar
legislation that was upheld. She concluded that those are the
legal reasons why CSHB 314 should not be passed.
MS. BRINK stated public policy reasons why CSHB 314 should not be
passed. She reiterated the things an investigator must say when
talking to a witness or victim. She stated an investigator or
lawyer is often able to go into more depth because of the time
constrains often faced by the police. Police don't often have time
for an extensive interview. Unannounced tape recording fosters
openness which would not occur if layers of formality, such as
reading of requirements, were implemented. People perceive that
talking with you is wrong if you add those layers of formality.
Allowing the defense to tape record fosters honesty and produces an
accurate record. Tape recording protects investigators and defense
lawyers. On a number of occasions a witness will claim that the
defense investigator has made them a promise or stated something
differently. These accusations can be refuted with the use of
recordings.
MS. BRINK said she could understand that the legislature wanted to
protect victims and witnesses, but CSHB 314 does not incorporate
the need for an accurate record. Unannounced recordings are not
used in every situation, but in certain cases recordings are
needed. These cases needing unannounced recording include
undercover informants, snitches, someone who themselves could be
charged, a person with a personal grudge, or someone stating
information without any physical cooperation. CSHB 314 inferred
that no oversight over the defense team had occurred. She added
that tape recordings actually eliminates concern over possible
irresponsible actions on the part of the defense team. She said
the defense team wants the same privileges as the police have.
MS. BRINK said that the defense team, employed by the Public
Defender agency, are bond by the same ethical considerations as
lawyers, which are different from the rules that govern police
action. One of the rules is that a defense attorney cannot lie
regarding a material fact. In other words he cannot misrepresent
things to a witness. Police can tell a witness that they found
fingerprints or other evidence in an effort to get someone to say
something. The state will also be protected from the taking of any
state (indiscernible) contacts. If a statement by a witness is
intended to be used at trial we are required to turn that over to
the prosecution. Most investigators are Public Defender agency
investigators and are highly motivated and trained, closely
monitored, educated in the rules governing ethics and fair dealing.
A lawyer takes great care in insuring that rules and guidelines are
used by the defense team in tape recordings.
MS. BRINK said under Section 3 which requires written authorization
in an effort to take statements from witnesses or victims in sexual
offender cases. This authorization will prevent interviews in
those cases. A written notification inhibits witnesses from
talking openly. Police realize that when a suspect is read his
Miranda Rights, he is less inclined to discuss things with them.
The police have developed ways to curtail the reading of the
Miranda Rights, such as telling a suspect that they are free to
leave. She felt that the burden of written notification on the
investigator is the functional equivalent of preventing the
investigation in those cases.
MS. BRINK said CSHB 314 was designed to increase privacy for the
victim or witness with accuracy in fact finding, however she felt
that because the defense team is already required to divulge who
they were and who they work for and that the witness or victim
doesn't have to speak to us, they are already protected. She
reiterated her main points and urged the committee not to pass CSHB
314.
Number 1820
REPRESENTATIVE BUNDE clarified that when defense lawyers or
investigators interviewed a witness or a victim they informed them
of the defense attorney's relationship to the defendant and that a
district attorney can be present. He said these things inform the
interviewee that this is a serious thing and questioned her belief
that if you add the request for tape recording the interview would
be squelched.
Number 1850
MS. BRINK said yes, when people are confronted with a tape recorder
they are more hesitant to speak. She said police officers can
verify this point and added people will often say, I'll talk with
you after you turn off the tape recorder.
Number 1865
REPRESENTATIVE BUNDE disagreed, because, obviously a victim or
witness is aware that this is not a casual conversation and adding
a simple statement requesting recording would not change that
relationship. He questioned the process which lets the
investigator choose his words very carefully while hoping the
victim or witness does not.
Number 1920
MS. BRINK said the same thing could be said of police officers.
Defense investigators choose their words and the format of their
interviews carefully and both defense investigators and police
should have the ability to do unannounced tape recording.
Number 1947
REPRESENTATIVE BUNDE asked whether a police officer can, under
normal circumstances, surreptitious tape record a witness or
possible suspect.
Number 1957
MS. BRINK said if it is obvious that he is a police officer, yes he
can.
Number 1962
REPRESENTATIVE BUNDE said he understood that this wasn't the case
under the Glass Opinion. He asked that under CSHB 314, if there
was anything to preclude defense investigators from getting a Glass
warrant.
Number 1973
MS. BRINK said she believed the Glass Warrant process only applies
to law enforcement.
Number 1984
LAUREE HUGONIN, Executive Director, Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA) was next to testify. ANDVSA
is a state wide coalition of community, domestic violence, and
sexual assault programs in Alaska. Services provided include
shelter, advocacy, crisis intervention, information and referral
services for victims seeking assistance in ending the violence
perpetrated against them. ANDVSA supports CSHB 314 and Ms. Hugonin
said she wanted to talk about sections of CSHB 314.
MS. HUGONIN said Section 1 expands the number of violations of
domestic violence injunctions for which people can be criminally
sanctioned. ANDVSA feels this component reinforces the notion that
violence against Alaskan women will no longer be tolerated.
National studies have found that one of the most violent times for
women are when they try to escape the violence. At this time,
stalking behavior intensifies and battered women are killed. She
referred to the Anchorage homicide that occurred last September.
Domestic violence injunctions are tools which can be used to
provide some protection to victims. Injunctions are designed to
deny the abuser access to the victim which hopefully decreases an
elevated risk of violence, allows the victim to be safe in her
home, and keeps the abuser from jeopardizing her employment and
personal support. Domestic violence injunctions only work when
abusers see them as enforceable. When abusers see the risks to
breaking them outweigh the benefits they chose to not violate the
restraining order. If we do not have enforceable domestic violence
injunctions, then the victim is placed in greater risk and have
condoned the abusers actions. Currently, communication is the only
item in a domestic violence injunction for which someone can be
criminally sanctioned. Gaining access to the victim, and further
domestic violence should also be criminally sanctioned. She
encouraged support for increased women's safety by supporting
Section 1 of CSHB 314
MS. HUGONIN said the remainder of CSHB 314 focuses on taping. She
stated that victims and witnesses should not be coerced or
manipulated into giving statements to the alleged perpetrator's
defense counsel or anyone working on his behalf. The legislature
recognized this by creating Alaska Statute 12.61.120C in 1991.
This statute states that before speaking to anyone about the crime
committed against them, victims have the right to know who the
person is and what interest they represent. Ms. Hugonin feels that
victims should be able to know whether the conversation is being
recorded. If the statement by the defense attorneys are correct,
that unannounced tape recording produces accuracy in statements
given before and during trial, she contended that it should be done
in a forthright manner. A request to record as well as a tape
recorder in plain view should be part of the procedure. Just as
defendants should have a right to collect evidence, witnesses
should have the information they give in a safe environment.
Serving justice should not mean tricking people. HB 314 only
requires honesty about their intentions from a defendant and
investigators and supports the integrity of the criminal justice
system.
Number 2150
FRED DEWEY, Defense Attorney, was next to testify. He has been a
defense attorney for 13 years, prior to that he was a law clerk for
a judge in Anchorage and worked for the law firm for a short while.
Currently he is in private practice doing criminal work. He
testified against CSHB 314. He questioned the practical aspects of
how the practice of defense attorneys is being legislated and
regulated. The ethics association under the Alaskan Bar
Association states that defense attorneys cannot misrepresent any
facts to a witness. If defense attorneys are asked any questions
they are required to answer them truthfully.
MR. DEWEY said Section 2, revising the statute, prevents the very
thing that Mr. Guaneli spoke about. Section 2 would prevent the
defense lawyer or investigator from turning on the tape recording
to document the victim or witness stating that they don't want to
speak and the beginning part of the interview might be lost.
Specifically, CSHB 314 is meant to outlaw surreptitious taping, but
what it ends up doing is to allow disputes to occur even when there
is not surreptitious taping. If you are going to include the need
for notification of taping, then the language must be changed so
that you allow unannounced taping so that the consent or denial can
be recorded. He cited examples where the defense attorney has
needed this recorded proof to dispute accusations. He said without
recording the sound of the defense lawyers entering the room leaves
possibilities for any accusations of threats or promises to be
brought forward by the victim or witness. Tape recording protects
the defense lawyer or investigator against these accusations. It
also protects their credibility in defending their client which
would be reduced if an accusation were made. He referenced a
personal example where he was able to refute the accusation by
presenting the recording he made.
MR. DEWEY said the Glass Opinion has to do with surreptitious
taping by informants. Police officers who don't identify
themselves as anything but a citizen are a target. In that
situation there is a requirement for a warrant by the state. In
consensual recordings done by one party giving the consent, police
officers are allowed to do recording without any warrant whatsoever
as long as they have identified themselves as a police officer.
The ethics opinion of the Alaskan Bar Association addresses the
need for the defense lawyer to identify themselves, who they
represent, and their right of the witness to have someone present.
The need was done so, that in a sense, a police officer was
speaking with a witness or a target. The Alaskan Bar Association
opinion does not really change any of that, and CSHB 314 would
change it significantly.
MR. DEWEY addressed the point of whether defense lawyers are
limited and the state is not. He said defense lawyers are like a
police officer in that they are interested in gathering facts. The
difference between the two, stems from the point that a police
officer is interested in gathering facts for a particular purpose.
A defense lawyer cannot get a search warrant, cannot ask for a
Glass Warrant, cannot surreptitiously represent himself as someone
different, cannot make a deal with a willing witness who has the
ability to implicate others and cannot offer rewards.
TAPE 96-5, SIDE B
Number 000
MR. DEWEY said these are all things available to the state.
CHAIRMAN PORTER requested that Mr. Dewey summarize his testimony
for the sake of time.
Number 017
MR. DEWEY said that you rarely record a victim of any crime.
Victims are special witnesses that are handled with kid gloves.
Defense lawyers are not interested in having the jury perceive
themselves as coercing a victim. Witness or victim coercion would
be lessened by the proposed statute taken. Without taping,
accusations of coercion could be made. Taping would provide an
accurate record. Surreptitious taping would be done on the rare
occasion in which a defense lawyer feels the witness or victim has
lied and would be likely to tell another lie. Recordings can catch
differences in the story. These recordings are given to the
prosecuting attorney to prevent the perjury of testimony in court
proceedings. Taping insures accuracy in our profession which is a
goal and accuracy is not considered unethical.
MR. DEWEY referred to the reference Mr. Guaneli made about the
ethics committee. He stated that their concern, stated at the
Governor's meeting and at the Alaska Bar Association, related to
concern about the process. They were not making a substantive
determination when they go (indiscernible-paper shuffling) on a
unanimous basis. CSHB 314 fixes something that does not need to be
fixed. CSHB 314 creates a lack of protection for witnesses,
process and for the ability to get to the truth.
Number 170
CHAIRMAN PORTER asked if Mr. Dewey was in possession of a letter
dated April 20th.
Number 179
MR. DEWEY said he was in possession of the ethics committee letter.
Number 185
CHAIRMAN PORTER said it appeared to reflect what Mr. Guaneli said
and it is signed by 19 members of the ethics committee.
Number 190
MR. DEWEY said he asked the ethics committee to talk with the Board
of Governors. One of the ethics committee members spoke at this
meeting last week and came out for the ethics opinion. The main
concern of the ethics committee, at the time they issued that
letter, was that the committee was working on a draft of an opinion
for a period of years and the Board of Directors changed direction
pursuant to precedents from other states. This change was done
without adequately consulting the ethics committee. The Board of
Governors brought this issue up last week at a hearing and re-voted
on the ethics opinion to allow a little more public process.
Number 230
CHAIRMAN PORTER disagreed and said the letter can speak for itself
regardless of a tape from the Board of Governor's meeting.
Number 250
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, Department of Public Safety, was next to testify.
She said she is in favor of CSHB 314. Section 1 pertains to
temporary restraining orders and she addressed this issue. She
said that when a victim of domestic violence obtains a temporary
restraining order she is often told by the police, by the court,
and by the victim advocates that this is only a piece of paper.
and are encouraged to protect themselves. She referred to Ms.
Hugonin's testimony where temporary restraining orders are not
enough. Experience has taught us that the most effective way to
give temporary restraining orders some weight is to allow the
justice system the opportunity to respond quickly to violations of
the restraining order.
MS. ANDREEN said CSHB 314 expands the number of situations where an
arrest can be made for violation of the order and she feels that
this is very important in order to increase the long term
protection of victims in Alaska. She stated support for the second
and third parts of the bill. Alaska has been clear about the need
to implement laws and a constitutional amendment ensuring that the
rights of victims will be protected. CSHB 314 is also necessary in
order to insure that victims know what it is and that they know
what is happening with their statements. She addressed the
presumption that a victim is going to know that any contact she has
will be a part of public record. She refuted this by saying that
victims do not choose to go through the process, it is a stressful
period for them. They are overwhelmed by the different people and
agencies, and do not have the legal expertise that one needs in
order to understand how these laws and these rights fit together.
She supported Ms. Hugonin's statement that if the defense wants an
open process and more active information, then be honest and open
about what they are doing.
Number 360
KEVIN McCOY, Federal Public Defender, Office of Federal Defenders
for the District of Alaska, was next to testify. He said he has
practiced law for 18 years mostly in criminal defense. He
indicated that he received notice two hours ago that this meeting
was occurring and had material he was willing to send if members
felt it would be helpful. He said the ethics opinion regarding
unannounced tape recording was requested in November 1993. An
investigator from his office was falsely accused of representing
himself as an agent of the FBI and harassing a witness. The
investigator happened to have someone present who could deny those
accusations. It was at that time that the question of unannounced
tape recording came up. He said he has ethics opinions from the
state of Arizona, New York, Tennessee, Kentucky, and Mississippi.
These opinions authorize unannounced tape recording. The Supreme
Court of Louisiana said it is a violation of equal protection to
prohibit authorized law enforcement to surreptitiously record and
not allow criminal investigators to do so.
MR. McCOY said the Alaskan Bar Association proceeded in this matter
with care. In October of 1994, the ethics committee was presented
with a draft opinion which authorized surreptitious taping by both
civil and criminal investigators. The ethics committee split on
the draft and did not make a recommendation to the Board of
Governors. In October of 1994, the Board of Governors invited both
the proponents and opponents to present their cases. The
proponents of the opinion contended that if the Board of Governors
were unwilling to adopt a broad ethics opinion they should at least
adopt one for the criminal defense bar. A tape of that meeting was
made for each member of the Board of Governors. At the January
1995 meeting they considered the issue and directed the ethics
committee to draft their opinion along the lines of the one they
adopted. The ethics committee declined to do that and gave no
explanation. During that time, an opinion was presented to the
Board of Governors and in March of 1995 it was adopted. The letter
referred to by Chairman Porter indicating that the ethics committee
unanimously opposed it was done in order to request
reconsideration. After full reconsideration, the Board of
Governors decided to maintain the opinion that was adopted, but
invited the ethics committee to draft an opinion along the lines
the Board of Governors wanted if they wished. When this was done,
a request was made to hold a public comment period on the opinion.
Mr. McCoy listed various persons and organizations who were
notified. The public comment period, held last week, concluded
with a Board of Governor's vote. They voted 8:3 to maintain the
opinion. He encouraged the committee to take careful consideration
as you are balancing privacy interests versus the concern for an
accurate record. Despite the public opinion that defense
investigators and criminal lawyers overreach, their main objective
is to protect themselves from false allegations and bring integrity
to the process. Tapes will verify all aspects of the interview.
MR. McCOY asked the committee to review the Quint Opinion. This
opinion discusses reasonable expectations of privacy. The decision
of Quint was whether you have a reasonable expectation of privacy.
In Alaska, you do not have a reasonable expectation of privacy when
you are dealing with a uniformed police officer and that officer is
asking you about an event of public importance. When a victim or
witness is told that they are being interviewed by a defense
investigator in connection with a particular event, then that
witness or victim no longer has a reasonable expectation of privacy
under those circumstances. He concluded by urging the committee to
understand that accuracy is why the use of tape recording is
needed.
Number 665
CHAIRMAN PORTER requested the information offered by Mr. McCoy and
explained the procedure of how to send it.
Number 673
ROBERT BUNDY, United States Attorney, District of Alaska was next
to testify. He said he has been practicing law for 24 years with
Alaska Legal Services, private practice, as the Nome District
Attorney, Assistant District Attorney in Anchorage and Assistant
Attorney General in Anchorage in anti-trust matters. In private
practice he did litigation and some criminal defense work. He has
been a United States Attorney for two years, a member of the ethics
committee for a number of years, and Chairman of the Alaska Wolves
Professional Conduct Committee of the Alaska Bar Association. He
stated his experience with interviewing hundreds of witnesses in
preparing his defense for clients.
MR. BUNDY said witnesses and victims are traumatized or upset and
do not realize who the players are and therefore need additional
standards for protecting their privacy. He referred to Mr. McCoy's
testimony and the original case which centered on the ethics of
surreptitious taping. He said in that case, it quite possible that
the investigator referred to himself as from the FPD (Federal
Public Defender) office. He added that the witness had probably
never heard of the FPD, because that witness had never been
involved in the criminal justice system. He said his point was
that people can be told who the person questioning them is and
where they are from, but people who are unsophisticated in the
criminal justice process are not going to understand what that
entails.
MR. BUNDY said people feel their personal privacy is violated when
they are tape recorded without their knowledge. CSHB 314 balances
the privacy interests with accuracy. He stated that prosecuting
attorneys are prosecuting those suspects who they feel are guilty.
Whereas defense lawyers, if they are doing their job ethically and
properly, are doing everything within the law to obtain the best
results for their client that they can. Even if the defense lawyer
knows that his client is guilty through a suppressed confession,
that defense lawyer is committed in court to cast doubt on his
guilt by cross examination. If obtaining this doubt can be gained
through tape recording, then it is done. Tape recording of a
witness does not have to be revealed and announced until that
witness testifies.
MR. BUNDY said the Board of Governors and the Alaska Bar
Association took it upon themselves to make a policy decision that
witnesses and victims in criminal cases have a lesser expectation
of privacy. He stated that most of these lawyers have little
experience as prosecuting attorneys and if they work on criminal
cases, it is usually on the side of the defense.
MR. BUNDY said it is his experience that if you explain who you are
and why you want to make a tape recording, there is very little
opposition to it. The requirement in CSHB 314, that the witness
should have the availability of a written transcript of the
recording is exactly the kind of respect a witness or a victim
ought to get in our system.
MR. BUNDY addressed the testimony opposed to CSHB 314 and their
desire to have the same tools that police officers have. He said
the state of Alaska, more so than any other state he knows of,
favors the defense more than the prosecution. The prosecution
(indiscernible) to the defense and the Alaska Supreme Court has not
placed any of that same requirement on the defense. Today's
testimony requesting the same tools of police officers is
inaccurate, because the defense gets more. All of that information
gathered by the police is passed on to the defense as well as
information gathered by the prosecution. CSHB 314 levels the
playing field, making the system have more integrity and accuracy.
Number 1074
REPRESENTATIVE FINKELSTEIN asked if a witness or victim would also
feel their privacy was violated by a police investigator as well.
Number 1091
MR. BUNDY agreed, but added that most people in this country
understand the role of the police. However, witnesses do not often
understand how the criminal justice system works and the role of
the defense investigator.
Number 1115
REPRESENTATIVE FINKELSTEIN said he felt it was based more on how
they were dressed.
Number 1121
MR. BUNDY reiterated that police are required to turn the
information and evidence that they collect over to the defense. He
suggested a reciprocal sharing of information between the
prosecution and the defense in order to equal things out.
Number 1135
REPRESENTATIVE FINKELSTEIN asked if the CSHB 314 provision
providing a transcript were enacted, what would be the disadvantage
to tape recording rather than simply recounting the conversation.
Number 1161
MR. BUNDY said he felt the provision would go a long way assuming
that the Alaska court system allows it. He said that victims and
witnesses should be informed that what they say is going to be
taken verbatim because they usually do not understand the process
These are the reasons why unannounced tape recordings should not be
allowed.
Number 1231
CHAIRMAN PORTER closed the public hearing and requested that Mr.
Guaneli come forward to answer questions from the committee.
Number 1268
REPRESENTATIVE FINKELSTEIN requested clarity on whether uniformed
police officers surreptitiously tape.
Number 1284
MR. GUANELI believed that a police officer can surreptitiously tape
if the person is questioned directly.
Number 1320
REPRESENTATIVE FINKELSTEIN asked if the Don Smith case related to
that, but Mr. Guaneli could not recount that case.
Number 1333
CHAIRMAN PORTER asked if the same allowance was given for a non-
uniformed police officer.
Number 1335
MR. GUANELI said it is a gray area because people can become
confused easily, whether by intentional or inadvertent methods. He
then addressed the confusion over what the Alaskan Bar Association
did or did not do. He said there is a split in the bar. The civil
defense lawyers do not like the ruling because the feel if criminal
defense attorneys can surreptitiously tape, they should be able to
do so as well. He mentioned that Eric Sanders, from the Alaska
Trial Lawyers Association, objects to the Alaska Bar Association
rule and supports CSHB 314. He said the focus should not be on
what the Alaska Bar Association has done, but should be on policy
considerations in the state of Alaska.
MR. GUANELI said he agreed with Mr. Bundy's testimony and shared
the same experience that if people are approached and the process
is explained, they do not mind being taped. He said CSHB 314 might
cut down on some of the aggressive tactics used. He reiterated the
constitutional amendment passed in the last general election giving
victims the right to dignity and respect in criminal proceedings.
At the very minimum this means victims should be allowed to decide
whether they are going to be tape recorded.
Number 1535
CHAIRMAN PORTER asked for clarification on the section dealing with
the offenders vacating the premises. He asked if this just meant
removing themselves or if it also included removing their
possessions.
Number 1555
MR. GUANELI said current law allows a condition like that to be
imposed on someone. CSHB 314 says that if the person violates that
condition imposed by the court, a penalty can be accrued. Whether
this means themselves and their possessions will depend on the
ruling of the court. The court will inflict conditions or
exceptions and under CSHB 314 this will need to be looked at to see
whether a violation has occurred.
Number 1609
REPRESENTATIVE B. DAVIS asked about the possible violation of equal
protection and that this same sort of law might have been
overturned in other states.
Number 1625
MR. GUANELI said he is unprepared to comment on rulings in other
states at this time. He said if the wording was such that it
restricted any recording, then he could see that it would hamper
the defense which could be ruled unconstitutional. He added that
the constitutional amendment, giving rights to victims, makes the
law in the state of Alaska a little different from the law in other
states.
Number 1670
CHAIRMAN PORTER agreed with Mr. Guaneli's assessment.
Number 1704
REPRESENTATIVE FINKELSTEIN questioned the testimony, stating the
need to record the explanation of what they were going to and the
consent to tape record.
Number 1738
MR. GUANELI said that in CSHB 314 it states that when approval is
granted, you record that the person has been informed and the
victim shall state on the recording that they give their consent.
He said he perceived that the process involved engaging in some
discussion before the recording begins and then documenting the
facts into the taping. He said that if a person says no, there
would not be the need to have a tape recording.
Number 1811
REPRESENTATIVE FINKELSTEIN clarified that you would be going
through that procedure twice.
Number 1832
MR. GUANELI said that was correct. This is the procedure done by
state troopers and reporters to find out if the person has any
objection.
Representative Al Vezey joins the committee at 2:25 p.m.
Number 1885
REPRESENTATIVE PARNELL, when asked by Chairman Porter, said he had
no objections to the proposed amendments. He requested that on the
third amendment, Mr. Guaneli should specifically state his lines
mentioned in the testimony.
Number 1910
REPRESENTATIVE BUNDE made a motion to accept Amendment 1 located on
page four, line six which deletes, "making the contact believes the
person being contacted". Hearing no objections, Amendment 1 was
adopted by the House Judiciary Standing Committee.
Number 1937
REPRESENTATIVE BUNDE made a motion to accept Amendment 2 located on
page three, line 30 adding another definition so that it reads,
"`statement' means a written statement or an oral statement, but
does not include a statement recorded in compliance with AS
12.61.120(d) and (e)". He added that the drafter of CSHB 314 can
reformat as appropriate.
Number 1960
REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli to tell the committee
the significance of Amendment 2.
Number 1968
MR. GUANELI said that the current drafting of CSHB 314, requests
both verbal consent recorded on the tape, but that you also get
written consent if it is the victim or a witness of sexual
offense. Amendment 2 seeks to avoid that double requirement.
Number 2034
CHAIRMAN PORTER said hearing no objection Amendment 2 was adopted
by the House Judiciary Standing Committee.
Number 2048
REPRESENTATIVE BUNDE requested clarification on Amendment 3.
Number 2068
MR. GUANELI said the admissibility criteria should be added to both
sections either by deleting it from one section or adding it to
both.
REPRESENTATIVE BUNDE made a motion to adopt Amendment 3 which
deletes lines 20 to 23 on page three and add where appropriate the
statement that is included. Hearing no objection Amendment 3 was
adopted by the House Judiciary Standing Committee.
Number 2110
CHAIRMAN PORTER supported CSHB 314 and mentioned that this is the
first application of the constitutional amendment.
REPRESENTATIVE BUNDE agreed with Chairman Porter. He discussed
horror stories derived from surreptitious taping and supported CSHB
314.
Number 2300
REPRESENTATIVE B. DAVIS stated concern, that because of the
combining of HB 314 and HB 326 into CSHB 314, HB 314 would be lost
because the combined bill might be overturned due to constitutional
issues.
Number 2350
CHAIRMAN PORTER said he thought it was unlikely, but if a portion
of the bill was declared unconstitutional, that part would be
dropped and the remaining portion would be left intact.
REPRESENTATIVE B. DAVIS withdrew her concern and did not have any
objection to CSHB 314.
Number 2374
REPRESENTATIVE FINKELSTEIN said he believed the process required a
two-thirds vote, a bill would still move forward with a majority
vote, but without changes in the court rules.
CHAIRMAN PORTER said it moves forward and does go into law, as it
only expresses the legislature's intent and desire as opposed to
two-thirds to change a court vote.
Number 2411
REPRESENTATIVE FINKELSTEIN said he does feel that the legislature
needs to address actions by the Board of Governors, especially when
there are split feelings on it and there is a constitutional
amendment on it.
TAPE 96-6, SIDE A
Number 000
REPRESENTATIVE FINKELSTEIN questioned whether there was any harm in
having an accurate record occur. He mentioned his experience with
reporters who have told him that it is very difficult to get people
to speak the same way if they are being tape recorded.
Number 104
CHAIRMAN PORTER said that the ability for the witness or the victim
to say no is an accurate record. He said surreptitious taping is
a violation to the dignity and fairness to the victim or witness.
Number 150
REPRESENTATIVE FINKELSTEIN mentioned that the need for taping when
the victim or witness is not telling the truth.
Number 159
REPRESENTATIVE TOOHEY said she would prefer the use of a tape
recorder by reporters. She said she supported CSHB 314 and any
bills supporting victims. She made a motion to move CSHB 314 out
of the House Judiciary Standing Committee with a zero fiscal note
and individual recommendations. Hearing no objections CSHB 314 was
moved out of committee.
HB 333 - BAR MEMBERSHIP:PUBLIC DEFENDER/ADVOCATE
Number 250
REPRESENTATIVE PARNELL, sponsor of HB 333, said HB 333 gives the
Public Defender agency and the Office of Public Advocacy (OPA) the
same benefit that the Department of Law (DOL). Currently, the DOL
has the ability to hire a person who is taking the bar but has not
passed the bar. HB 333 gives the person hired, ten months
following the commencement of their employment, to become a
licensed attorney in the state of Alaska. HB 333 attempts to
forward more help in the Public Defenders office and in OPA.
Number 411
REPRESENTATIVE JOE GREEN asked for an explanation of the purpose of
HB 333.
Number 437
REPRESENTATIVE PARNELL said the purpose was to afford more help to
the Public Defender office as well as OPA. He added that law
schools are all outside the state of Alaska and so new graduates
are currently not able to work for OPA or the Public Defender
agency until they pass the bar exam.
Number 480
REPRESENTATIVE GREEN asked if HB 333 encourages non-Alaskans from
moving up to Alaska and displacing Alaskans educated in the state.
Number 525
REPRESENTATIVE PARNELL said it works both ways. He said an
attorney cannot practice law unless they are licensed in Alaska.
HB 333 allows them to practice law under strict supervision by the
Public Defender agency and OPA for a limited period of time.
Number 545
REPRESENTATIVE BUNDE asked and it was confirmed that this levels
the playing field between the public defender agency as well as OPA
and the prosecutors office.
Number 578
REPRESENTATIVE VEZEY asked if they could practice before the bench
and was told that it would be addressed in different testimony. He
then asked why the ten month limitation.
Number 601
REPRESENTATIVE PARNELL said ten months give the person the
opportunity to take the bar twice and obtain results of passage.
Number 636
REPRESENTATIVE VEZEY asked if the average time for a lawyer to pass
the bar was two times.
Number 648
REPRESENTATIVE PARNELL said that it averages one time, but it is
not unusual to take the bar twice.
Number 679
JOHN SALEMI, Director, Public Defender Agency, Department of
Administration was next to testify. He said HB 333 levels the
playing field, but more importantly it expands the potential pool
of applicants so that the quality of lawyers can be enhanced. He
added that creating a "buyers market" might actually reduce
expenses. He said these factors are especially important in
regards to the rural areas of the state.
MR. SALEMI said applicants wishing to do Public Defender work must
currently sign up for the Alaska Bar at a cost of $700, take a bar
review course to familiarize themselves with Alaska law at a cost
of $1100, in addition to travel expenses. After this expense,
there is a waiting period of three months to get the results from
the Alaska bar. If they have passed, there might not be an
available position.
MR. SALEMI said that if the applicant pool could be opened, entry
level positions could be reduced from a range 19 position to a
Range 16 position at a considerable savings to the public defender
agency.
Number 1015
REPRESENTATIVE VEZEY asked if these employees will be able to
practice before the bench.
Number 1027
MR. SALEMI said they would be able to just as the DOL staff lawyers
are able to do under the present statutory scheme. He said all of
the public defender work is done before the court as opposed to
other work done by law firms.
Number 1045
REPRESENTATIVE VEZEY suggested repealing the statute so that no
public defender staff need pass the bar.
Number 1065
MR. SALEMI responded that it was possible. He said Alaska Legal
Services Corporation waives the bar requirement for two years but
said there are good reasons for professional licensing.
Number 1109
REPRESENTATIVE VEZEY said in previous years, lawyers were taught in
an apprentice type situation. He questioned the unnecessary
expense of the bar requirement.
Number 1156
MR. SALEMI mentioned the evolution of law such as accredited law
schools and bar membership. He said he felt that people have these
requirements showed their confidence in Alaska law and the overall
practice of law. He felt there should be a balance between fiscal
conservatism with obtaining competence and quality of
representation.
Number 1220
REPRESENTATIVE VEZEY stated that he had never heard where there
were not enough lawyers to form a sizable applicant pool. He also
said some representation has got to be better than no
representation.
Number 1255
MR. SALEMI said that everyone charged with a crime is entitled to
council if he cannot afford to hire council in the private market.
HB 333 does not expand the number of staff of the public defender
agency, but merely increases the pool of applicants which hopefully
would pay less in recruitment costs.
Number 1295
REPRESENTATIVE VEZEY asked if that was the same as having more
staff for less money.
Number 1302
MR. SALEMI said he could only fill the positions which the
legislature allows.
Number 1315
REPRESENTATIVE VEZEY said he could envision a scenario of asking
for more positions from the legislature under the fact that it
could be done at no extra cost.
Number 1336
MR. SALEMI said the number of staff is allotted in proportion to
the size of the caseload and not because of budgetary discretions.
Number 1350
BRANT McGEE, Director, Office of Public Advocacy, Department of
Administration, was next to testify. He said a liability issue was
raised and he referred to Section 3 of HB 333 which addresses OPA.
He said it addressed the issue. The first sentence in Section 3
requires that all contractors have to be admitted to the bar, while
the second sentence says OPA employs don't have to admitted to the
bar until ten months later. The distinction is important and
illustrates that liability concerns in this field are minimal.
Contractors who provide work in cases where OPA has a conflict of
interest, where the OPA would not be able to directly supervise
them. He said the second sentence does not create any greater
liability than the current situation where new lawyers are hired
who also require strict supervision.
Number 1424
MR. McGEE said he could see no downside to CSHB 314 and it will be
helpful when applicants are in the situation described by
Representative Parnell.
Number 1438
REPRESENTATIVE VEZEY asked for clarification of the wording of
Section 3.
Number 1460
MR. McGEE said that Section 3 states that only an attorney admitted
to practice can contract with OPA. These are independent
contractors who preform work outside the major population centers
and provide representation where OPA has a conflict of interest.
They are independent contractors, in that OPA does not have the
ability to direct their performance and duties in connection with
particular cases. This is the reason that HB 333 does not extend
to those contracted attorneys. The second sentence of Section 3
refers to the OPA lawyers who are supervised daily on a direct
basis and does address liability concerns regarding HB 333.
Number 1505
REPRESENTATIVE VEZEY said he reads HB 333 as "they can't be an
attorney employed by your office unless they are admitted to the
practice of law ten months after they are hired."
Number 1523
MR. McGEE said this is correct. He added that a person not passing
the bar exam within ten months would be terminated from employment
with OPA. If they pass the bar exam, then they can become a full
fledged OPA staff attorney. HB 333 creates a new class of lawyers
outlined by Representative Parnell and Mr. Salemi.
Number 1586
REPRESENTATIVE BUNDE reiterated what Mr. McGee said and asked if he
understood correctly.
Number 1610
MR. McGEE said the distinction between contracted attorneys and the
OPA staff is a wise distinction.
Number 1640
REPRESENTATIVE BUNDE made a motion to move HB 333 with individual
recommendations and a zero fiscal note. Hearing no objections HB
333 was moved from the House Judiciary Standing Committee.
ADJOURNMENT
There being no further business to come before the House Judiciary
Standing Committee, Chairman Porter adjourned the meeting at 2:58
p.m.
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