Legislature(1995 - 1996)
01/24/1996 01:10 PM House JUD
| Audio | Topic |
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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
January 24, 1996
1:10 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
Representative Bettye Davis
COMMITTEE CALENDAR
*HOUSE BILL 255
"An Act creating the crime of negligent vehicular homicide."
- WITHDRAWN BY SPONSOR
*HOUSE BILL 370
"An Act relating to the provision of legal services to criminal
defendants."
- PASSED OUT OF COMMITTEE
(* First public hearing)
WITNESS REGISTER
LT. CHRIS STOCKARD
Planning and Research Division
Department of Public Safety
450 Whittier Street
Juneau, Alaska 99811-1200
Telephone: (907) 465-4322
POSITION STATEMENT: Testified in Support of HB 370
RANDY WELKER, Legislative Auditor
Legislative Audit Division
P.O. Box 113300
Juneau, Alaska 99811-3300
Telephone: (907) 465-3830
POSITION STATEMENT: Provided information about HB 370
ART SNOWDEN, II, Administrative Director
Alaska Court System
303 K Street
Anchorage, Alaska 99501-2084
Telephone: (907) 264-0547
POSITION STATEMENT: Provided information about HB 370
JOHN SALEMI, Public Defender
900 West Fifth Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 269-5476
POSITION STATEMENT: Testified against HB 370
MIKE KORKEL, President
Alaska Peace Officers Association
1979 Peger Road
Fairbanks, Alaska 99709
Telephone: (907) 451-5316
POSITION STATEMENT: Testified in support of HB 370
DEAN GUANELI, Chief Assistant Attorney General
Criminal Division
Department of Law
Room 717, Dimond Courthouse
Juneau, Alaska 998111-0300
Telephone: (907) 465-4043
POSITION STATEMENT: Provided information about HB 370
PREVIOUS ACTION
BILL: HB 255
SHORT TITLE: NEGLIGENT HOMICIDE BY AUTOMOBILE
SPONSOR(S): REPRESENTATIVE(S) OGAN, Kohring, Bunde
JRN-DATE JRN-PG ACTION
03/15/95 742 (H) READ THE FIRST TIME - REFERRAL(S)
03/15/95 742 (H) JUDICIARY, FINANCE
04/05/95 1039 (H) COSPONSOR(S): KOHRING, BUNDE
04/12/95 (H) JUD AT 01:00 PM CAPITOL 120
04/12/95 (H) MINUTE(JUD)
04/21/95 (H) JUD AT 01:00 PM CAPITOL 120
04/21/95 (H) MINUTE(JUD)
04/22/95 (H) JUD AT 11:00 AM CAPITOL 120
04/22/95 (H) MINUTE(JUD)
01/24/96 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 370
SHORT TITLE: LEGAL COUNSEL FOR ACCUSED CRIMINALS
SPONSOR(S): REPRESENTATIVE(S) MARTIN, Porter, Toohey
JRN-DATE JRN-PG ACTION
12/29/95 2363 (H) PREFILE RELEASED
01/08/96 2363 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2363 (H) JUDICIARY, FINANCE
01/24/96 (H) JUD AT 01:00 PM CAPITOL 120
01/24/96 2528 (H) COSPONSOR(S): TOOHEY
ACTION NARRATIVE
TAPE 96-7, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:10 p.m. Members present at the call to order were
Representatives Joseph Green, Con Bunde, and Cynthia Toohey.
Members absent were Al Vezey and David Finkelstein. Representative
Finkelstein arrived at 1:16 p.m. and Al Vezey arrived at 1:30 p.m.
HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE
CHAIRMAN PORTER announced that there were two bills scheduled to be
heard by the committee, HB 255, concerning negligent homicide was
withdrawn by the sponsor and HB 370, a provision for legal services
for criminal defendants was to be addressed.
HB 370 - LEGAL COUNSEL FOR ACCUSED CRIMINALS
CHAIRMAN PORTER, Co-Prime Sponsor gave a short synopsis of HB 370,
which provides for legal services through Office of Public Advocacy
(OPA) and the public defender by appointment of the court.
Number 130
LT. CHRIS STOCKARD, Planning and Research Division, Department of
Public Safety, testified that he was asked by Deputy Commissioner
Dell Smith to address the committee and express that Public Safety
supported this legislation. He stated that there had been problems
in the past with self-appointment of the public defender to
criminal suspects. Lt. Stockard cited an extreme example of a
defendant who while in the course of a felony act was self-
appointed by the public defender's office and asked that the police
not question the this person. He pointed out that the public
defender could not have determined at that time whether the suspect
was even indigent and unable to afford an attorney.
Lt. Stockard said the department was looking for more balance in
the appointment of attorneys than what currently exists.
Number 256
REPRESENTATIVE CON BUNDE asked for clarification that the self-
appointment Lt. Stockard referred to was conducted by the public
defender's office without the judicial system's involvement.
LT. STOCKARD said that this was what he meant.
REPRESENTATIVE CYNTHIA TOOHEY asked if there was a specific time
frame an attorney would need to be appointed before a defendant is
deemed indigent. How long does it take to verify that someone is
unable to afford representation?
LT. STOCKARD said from his interpretation of the bill that an
investigation is not required, but a finding by the court as to
whether or not they believe a defendant under oath cannot afford an
attorney. They could require an additional investigation if they
were unable to initially determine someone as indigent. He thought
perhaps this was something Art Snowden could speak to.
Number 360
RANDY WELKER, Legislative Auditor, Legislative Audit Division,
stated that an audit was conducted on the appointment process of
public defenders and OPA. They concluded that there were no set
guidelines or consistency in the appointment of public defenders in
the court system. They found that different methods were used to
determine eligibility from district to district, within districts,
between judges, et cetera. The auditor's department recommended
that there be more standardization of guidelines and criteria
established regarding who is eligible for public defender services
and who is not.
MR. WELKER said that the court system has a pre-trial service in
Anchorage and Fairbanks, albeit Mr. Welker added, they are not
staffed adequately, but the service in Fairbanks specifically does
interview people before they enter the court system. Outside of
Fairbanks and Anchorage an interview by the judge at arraignment is
conducted and there are no standardized guidelines to determine
someone's indigence. Because of this and the lack of follow up, it
can't be said with certainty that the public defender's services
are provided to only indigent defendants. There are no controls in
place to support this system.
MR. WELKER suggested that the courts conduct a more deliberate and
formal process of reviewing a defendant's financial situation on a
case by case basis.
Number 585
REPRESENTATIVE JOE GREEN asked if there were any suggestions for a
reasonably low cost method to establish this consistency and
verification.
MR. WELKER stated that the department, at the request of
Representative Martin, was still looking at how other states
conduct their eligibility interviews. He pointed out that some
states have a stronger determination system. The state of
Washington, for example, has a two tier determination system in
statute where a person is deemed indigent automatically if they
receive AFDC (Aid to Families with Dependent Children). The
second tier allowed for a determination that if a person was
indigent, they might still be capable of contributing to their
legal fees. He cautioned that if standardized criteria was spelled
out, it would not necessarily apply to all areas of the state.
For instance, a judge could determine that a commercial fishing
permit was an asset and other courts might not.
REPRESENTATIVE GREEN asked if there was a federal guideline which
determines a poverty level. He said that this may not be a cure
all, but it could be defensible.
MR. WELKER believed that some of these standards would be good
starting points and perhaps legislation or the courts providing for
exceptions to income could work. The more criteria created, the
more intense the effort to document income becomes. He didn't know
if these criteria could be required of a judge. He again pointed
out that there were four people combined in pre-trial services in
Anchorage and Fairbanks who specifically are responsible to make
eligibility determinations. The Fairbanks' staff appear to be
busier than the one in Anchorage. It takes resources to
accommodate the criteria established in a pre-trial eligibility
interview.
Number 890
ART SNOWDEN, II, Administrative Director, Alaska Court System,
stated that Mr. Welker and his department did a good job in their
auditing efforts. Not all of the defendants' records were made
available due to confidentiality, but if Mr. Welker wished to
review these records, Mr. Snowden would clear them for him. He
added that the auditors did the best they could with anecdotal
information.
MR. SNOWDEN said the court system has only four people statewide to
conduct eligibility screenings. They do check all available
information. Sometimes people will sign affidavits under oath.
This is about all they can do as a requirement. Most of the people
assigned to the public defender's office are indigent. If some of
these individuals as financially capable slip through the cracks,
the department is not perfect.
MR. SNOWDEN added that it's mandated by rule that the public
defender must reassign someone who is not indigent. There is also
a rule which states that if someone is not indigent, but because
the trial, is advanced and a reassignment could interfere with the
trial the defender can continue with the case. But, it is required
that the defendant pay for full compensation of legal services.
MR. SNOWDEN said there are no standards to determine someone's
indigence. For example, in Barrow; There are no attorneys and if
someone got arrested, even for a minor crime, how much money would
it cost to fly an attorney in from Anchorage? Almost anyone in
Barrow, under this standard, could be considered indigent.
Indigence is a floating concept, for example, someone may not be
indigent for a shoplifting charge, since the fees would probably be
minimal. But, if someone murdered an individual, they might not be
able to afford representation under these circumstances.
MR. SNOWDEN said he would concede that 400 people might slip
through the system as indigent who really aren't, although he
didn't think this was true. What would happen if these 400 people
were removed from the public defender's over-worked staff, nothing.
The same number of public defenders are needed, the budget couldn't
be cut, et cetera. Beyond this, if a defendant was not appointed
and they came in pro-per it would take this individual forever to
get through the system. Eventually, the public defender would have
to protect their constitutional rights, which would cost time and
money.
MR. SNOWDEN submitted to the committee that the municipalities in
the state are costing the tax payers more than the public
defender's office by representing non-indigent defendants. For
example, Anchorage and Juneau pay for their own public defenders
Any other place in the state does not want to pay for their
municipal prosecutor. They charge everyone under state statutes
and make the district attorney (DA) do it, therefore, the statewide
public defender has to defend cases. He stated that this is not
fair. If these laws are passed, putting the burden back on the
municipalities for misdemeanors, more money would be saved as
versus stepping up the screening process for indigent defendants.
MR. SNOWDEN referred to Section 5 of the bill, more specifically
the language, "The determination shall be made by the court on the
record and shall set out the basis for the finding that the person
is indigent." It was determined that the committee substitute (CS)
had yet to be adopted.
Number 1158
REPRESENTATIVE TOOHEY moved to adopt CS work draft 9LS1352-C
1/19/96. There being no objection, CSHB 370(JUD) was adopted.
Number 1188
MR. SNOWDEN suggested for argument sake, that this examination on
the record regarding indigence, could take fifteen minutes.
Presently, in Anchorage, the DA is arraigning 22,000 cases a year
and in Fairbanks close to 10,000 a year. If someone took 15
minutes per arraignment when processing 80 cases per day, he
suggested that the legislature should probably give the court
system ten more judgeships. He added that this indigence test can
be applied in rural settings, but he would like to see a related
amendment, in writing, that a judge would approve of this
procedure. Mr. Snowden thought that there was no way an additional
fifteen minutes per arraignment could be added in Anchorage, per
defendant.
CHAIRMAN PORTER stated that in discussing this legislation he
recognized the complexity of the general issue of adding an
additional burden to the judges by requiring a standardized
screening procedure. The intent of this legislation was to point
out to the court that they could do a better job of screening with
the resources that they have. Within this context, Chairman Porter
asked Mr. Snowden to work with Mr. Stockard to come up with a few
words to enhance the language regarding the written procedure of
screening while also recognizing the impetus of the entire bill.
MR. SNOWDEN pointed out that people do sign affidavits, their
incomes are researched, et cetera, by people outside of the judge's
position. In response to the audit, he suggested that a year long
study be undertaken to look at each defendant appointment and
create some chronology to reflect how the system works. He said
that if they came up with additional suggestions on how things
could be done differently, they would.
Number 1342
REPRESENTATIVE TOOHEY asked if permanent fund checks were secured
in instances of indigence.
MR. SNOWDEN said that everyone who is appointed to a public
defender by a supreme court rule and statute, has their permanent
fund taken. A recommendation was made in the audit, which says
everyone should forfeit their permanent fund check whether or not
they're found guilty. In the original bill which established this
system of taking permanent fund checks, the legislature chose to
only seize permanent fund checks if that person was found guilty.
The court system does think that everyone should have to forfeit
their permanent fund check regardless, since any representation
costs money regardless of the verdict. He suggested that the
legislature revisit this issue.
REPRESENTATIVE TOOHEY suggested that maybe an amendment addressing
the permanent fund takings could be incorporated into this present
legislation.
Number 1395
REPRESENTATIVE BUNDE said he understood Mr. Snowden's concerns and
practicality regarding this indigence procedure, the appearance of
fairness is very important. He felt as though 20 people slipping
through the cracks was too many, much less the 400 estimate which
Mr. Snowden outlined previously. Representative Bunde pointed out
that tightening the standards for this indigence review was not
going to balance the budget, but the whole system of justice is
predicated on the appearance of fairness.
MR. SNOWDEN wished to make it very clear that he threw out the
number of 400 because it was the highest number he could think of.
There are not 400 people who slip through the system.
REPRESENTATIVE BUNDE understood that this number was just a
hypothetical number and that they really don't know how many people
slip through, but even this fact undermines the confidence in the
system. He referred to the information Mr. Snowden outlined as the
standard procedure in statute when it was determined someone really
wasn't indigent and asked how often this happens.
MR. SNOWDEN said Representative Bunde would probably need to ask
the public defender's office, but he said he had not heard of
anyone re-assigning a case, which in his view meant that there are
not many people slipping through the cracks. Mr. Snowden asked,
why it would be in the best interest for the public defender or
OPA, who are already overworked, to defend people they don't have
to defend. This reassignment of a non-indigent individual is
mandated by rule that requires the public defender to return any
case where they find an individual is not indigent.
Number 1553
REPRESENTATIVE AL VEZEY asked that Mr. Snowden clarify for the
committee the difference in the duties of the public defender as
versus the duties performed by Public Advocacy.
MR. SNOWDEN generally qualified the overall differences between the
two agencies. In the past, there was always a public defender in
the Executive Branch. Any time there were multiple defendants,
they would defend the first one, then the court would have to find
attorneys to defend the others. This remedied any conflict
problems. The legislature created the office of public advocacy to
take all of these surplus defendants in order to represent them
personally through this office or to contract out the defendants to
private attorneys. The public advocacy office represent children's
cases and other indigent types of cases.
Number 1620
JOHN SALEMI, Public Defender, when called upon to testify, defined
what he saw as a problem with the bill, more specifically self-
appointment of the public defender. Of the 18,000 cases which
Anchorage processes, 99.9 percent of these individuals are
appointed by the court system. The number of individuals who are
non-indigent make up a very small fraction of this case load. He
wished to point out that the example used by Mr. Stockard was
inaccurate. The facts were not entirely correct as stated.
MR. SALEMI understood that the intent of this legislation was that
when the public defender self-appoints themselves, this potentially
creates problems for the police, which is inconsistent with good
public safety, policy and practice. He frankly told the committee.
There were instances where he had informed people before being
appointed by the court about their constitutional right not to
cooperate with the police for self-incriminating reasons. This was
only in instances where it seemed these people had been involved in
some criminal activities. He pointed that was obligated to this as
a lawyer.
The perception that the public defender's stock advise is that
these individuals should just keep their mouth shut and go about
their business is dead wrong. Mr. Salemi pointed out that this
would be unethical, not good advise and possibly considered
malpractice.
MR. SALEMI added that this bill in all instances would eliminate a
public defender from self-appointing themselves. The effect of
this is would be the denial of people of modest or little means
access to lawyers when they have a legal question regarding the
criminal system. The only other time these individuals could get
an answer to their questions would be after they've already been
charged, which might be too late for them. A prosecutor or a
police office may not always be in a good position to know that
somebody needs a lawyer, as well.
MR. SALEMI further stated that by passing this law, people who can
afford a lawyer would not be affected. To some extent, a two tier
system of justice will be created where poor people are denied
access to legal services and people who have means still go out and
get good advise from lawyers. This bill would create a greater
divide between poor people and people of means. Two kinds of
justice would result. Besides this philosophical or policy
argument, Mr. Salemi wished to discuss the practical impact of this
legislation.
MR. SALEMI said there is a practical benefit to having public
defender attorneys involved early on through a self-appointment
process. He said he gets lots of calls from people who have not
been appointed. Some of these people will never have cases, but
need legal advise. Mr. Salemi refers lots of people to the police
and tells them to take a polygraph test where it has been
suggested. He also gets calls from people who are out of state and
want to turn themselves in, but don't know how to go about it. He
also gets lots of calls from victims and refers them to the
district attorney's office or the police. When people come to his
office he doesn't know what their problem is and if he's unable to
self-appoint he'll never know what their problem is.
MR. SALEMI has helped people to turn state's evidence. He cited
the example of multi-cultural people who are intimidated by the
system. These people are reluctant to go to law enforcement,
unless they are given some assurance, that this is how the system
works. The public defender facilitates these people to the justice
system and to the law enforcement community.
Number 2150
MR. SALEMI gets numerous calls from people who vaguely think they
might be involved with a criminal situation. They want not to be
involved with the criminal justice system, but think they have
information they should provide. If he explains to them the
concept of accomplice liability and it turns out they aren't
accomplices, then he has given them the freedom to walk into a
police station to translate what they know about a criminal
situation. It's less likely that these individuals will come
forward if they believe they can be implicated somehow.
MR. SALEMI used the example of a woman with children who had a bad
crack habit. She was afraid her children would be taken away if
she looked into treatment. After Mr. Salemi explained that she
wouldn't go to prison for ten years because she had no prior
criminal convictions and that there was a possibility if she went
for resident treatment that this could count towards her jail time.
This person indicated to Mr. Salemi that she was much relieved and
that she thought she could face all the requirements ahead of her
for treatment.
Number 2294
MR. SALEMI pointed out that the public defender provides a service
to individuals, not all of whom are criminals who deserve to be in
prison. There are distinct benefits to law enforcement and
prosecution as well. He also didn't know if this was an
unconstitutional bill in it's present form. He pointed out that it
might generate constitutional attacks on fifth amendment grounds,
Miranda grounds, sixth amendment grounds and on equal protection.
MR. SALEMI noted that there are other practical problems with this
legislation. The public defender has a 24-hour answering service,
most times for Driving While Intoxicated (DWI) offenses. These DWI
individuals are entitled to consult an attorney before they blow
into a Breathalyzer. The police officer will read a suspect a
complied consent before they do so, and if the suspect chooses not
to blow into this Breathalyzer, they could loose their license and
they can be charged criminally for refusal. If they have doubts
about this procedure, this consent allows them the option of
calling an attorney first.
Number 2460
MR. SALEMI cited the Alaska Criminal Rule 5, section (b) which
says, "Immediately after arrest the prisoner shall have the right
forthwith to telephone or otherwise to communicate with both an
attorney and any relative or friend." He pointed out that the
committee with this new legislation is attempting to amend this
Rule 5.
MR. SALEMI added as a final point that an attorney has a right
based on professional canons, to provide this type of referral
service even though a court, prosecutor, or a law enforcement
officer doesn't necessarily think an individual needs a lawyer. He
then read from a commentary from the Alaska Rules of Professional
Conduct for Lawyers, Rule 6.1, "The rights and responsibilities of
individuals and organizations in the United States are increasingly
defined in legal terms. As a consequence, legal assistance in
coping with the web of statutes, rules and regulations is
imperative for persons of modest and limited means as well as for
the relatively well to do."
MR. SALEMI stated that this is a provision of the professional
canons where lawyers are encouraged to provide legal services to
people who don't have the money to afford them. There is no way
that an average person would have the time or know how to
understand the complexities of the legal system. It makes sense
that people are trained to interpret the system and extend
themselves to provide help to people. He noted that this legal
access must be maintained.
TAPE 96-7, SIDE B
Number 052
REPRESENTATIVE GREEN asked if there might be a simple fix to this.
He referred to line 25, page 2, of the CS and he suggested dropping
the language, "on the record." He wondered if this would simplify
or help eliminate some of the problems.
CHAIRMAN PORTER responded that this edit would address the problems
which Mr. Snowden discussed, put suggested that they wrap up the
testimony first.
Number 071
REPRESENTATIVE DAVID FINKELSTEIN asked Mr. Salemi about the
circumstance where someone admits their guilt and the fact that Mr.
Salemi is required to tell them to avoid cooperation in this
situation. Representative Finkelstein asked that if someone said
they were innocent, would he encourage them to cooperate.
MR. SALEMI answered certainly, especially if the police have been
soliciting them and they're getting calls from law enforcement. If
a police or law enforcement officer wishes to contact someone, this
is when this someone usually calls him. Once he's assured that
there is no liability in this person talking to the police, he will
encourage them to make contact. If it looks like there will be
some exposure, sometimes he will contact the police himself and
explain the elements of this vulnerability. In some instances, an
agreement will be forged in return for the information this person
might have.
REPRESENTATIVE FINKELSTEIN added that it was his impression, if
this same person contacted a private attorney, this attorney would
more than likely tell them not to speak to law enforcement
officials without an attorney present. He thought it would be more
common for a private attorney to encourage a person not to talk
unless counsel present and he asked if this was correct.
MR. SALEMI said that this was an interesting point and it would
depend on the private attorney. He spoke to private criminal
lawyers specifically and said they'd probably be more likely to
tell the individual not to cooperate. There are lots of reasons
for this, namely these attorneys are required to carry malpractice
insurance, and they don't want to be sued later. The safe course
for a private attorney is to counsel them not to talk, because what
this person doesn't say, won't hurt them.
Number 147
REPRESENTATIVE FINKELSTEIN also pointed out that this was also a
resource issue. These private attorneys have the resources to
counsel this way, as versus a public defender's office.
MR. SALEMI said that this was true, but in a sense he was being
asked to generalize and he said it was much easier to look at
situations on a case by case basis. He suggested that
Representative Finkelstein ask private attorneys the same
questions. The public defender's office has limited resources and
this has always been a factor when deciding the course of advise
for a client.
Number 224
REPRESENTATIVE BUNDE pointed out that he saw the problem as
deciding where representation begins. He wondered if it was
possible for this bill to allow for an initial consultation without
representation, say for instance a means for establishing what a
client's issues are and at the same time this would disseminate
good will from the public defender's office. These individuals
could then be designated indigent if applicable, followed by actual
representation.
CHAIRMAN PORTER thought that they could not have it both ways.
The public defender cannot necessarily facilitate good justice with
an initial contact and also require that person not to talk. They
either have to get involved or not.
CHAIRMAN PORTER pointed out that this was the purpose of Section 2
of the present legislation. Under the DWI situation for instance,
or any other situation where a law enforcement official is told by
someone they wish to have an attorney present or within a custody
situation where the officer is required to advise them of their
Miranda rights, it behooves the officer to contact the prosecutor
to arrange for a court appointed attorney. Currently, the only
difference in this procedure is that sometimes the officer calls
the public defender directly and under this provision of self-
appointment the public defender gets involved.
Number 327
REPRESENTATIVE BUNDE asked that in a major capital case, wouldn't
any middle class citizen be considered indigent because the cost of
defense could cost lots of money.
CHAIRMAN PORTER then referred to what Mr. Snowden said about the
discrepancy of costs for defense of crimes, such as a shoplifting
offense versus a murder case. He pointed out that this bill
doesn't try to remedy this discrepancy. The intent of the
legislation is to make sure the court is initiating the minimal
steps to interview people for indigence.
Number 392
MIKE KORKEL, President of Alaska Peace Officers Association,
testified that his organization has had a chance to view and
discuss this bill at length. His concerns centered around self-
appointments when an officer is trying to obtain information from
an individual and this person contacts the public defender's office
before being charged. Ethically the public defender is an advocate
for this person. If a person is charged with a crime there should
be a hearing in court on that person's possible indigence. He too
would utilize the public defender's office as an avenue to get
legal questions answered since it's free advise, regardless of an
indigent status. He pointed out that maybe the public defender's
office was taking on a larger burden that was necessary under the
circumstances.
MR. KORKEL pointed out that the peace officers do get calls in the
course of investigations from public defenders' and are told that
the public defender represents a particular person. They then ask
if the person under investigation is going to be charged with a
crime. Mr. Korkel is always incredulous when this happens. He
believes that once a person is determined to be indigent, they
should then be appointed a public defender.
Number 600
REPRESENTATIVE TOOHEY asked when Miranda rights are read, before or
after an attorney is instated?
MR. KORKEL explained that miranda rights are read when an
individual is no longer free to leave, when it is determined that
they are under arrest.
MR. SALEMI stated that this wasn't necessarily true. Miranda
rights come into play when a person is being detained and based on
objective criteria is not free to leave and are about to be
arrested. Mr. Korkel said that yes, he would agree with this
definition. This is also referred to as Constructive Custody.
Number 640
DEAN GUANELI, Criminal Division, Department of Law, stated that
because prosecutors are usually in an adversarial position with
public defenders, the division chose not to take a position on this
legislation. He was requested by Representative Martin's office to
address questions about the constitutionality of this legislation.
MR. GUANELI represented that the criminal division felt as though
this legislation was constitutional. At what point in time does
the public defender get appointed and by whom? What this
legislation seeks to do is to drawn the line at the person's first
court appearance. This is consistent with the constitutional law
of the state and the country, that a person is entitled to an
attorney at public expense if they can't afford one at a critical
stage in a criminal proceeding. To draw the line at the initial
appearance in court to access indigence is appropriate. Before
this point in time, the Miranda rule protects the rights of an
individual.
MR. GUANELI outlined that in a Miranda situation a police officer
has two options, one, they can stop questioning the individual,
which is what usually happens. In this instance, within 12 hours
this person is appointed an attorney. The other option, if it's
imperative that the officer continue with their line of questioning
can appear before a judge, have an attorney appointed and then
proceed with the questioning. Mr. Guaneli felt as though this
latter situation wouldn't happen very often because the attorney
would probably caution their client not to answer any questions.
MR. GUANELI agreed that as Mr. Salemi indicated, this legislation
would not affect 99.9 percent of the cases already being processed
through the courts. This legislation will effect the example as
cited by Lt. Stockard's where an attorney is self-appointed in the
middle of a hostage situation to a situation where people in the
course of an investigation wish to give information to an officer.
This is a policy choice to be made by the legislature, as to when
and under what circumstances appointment of public defenders are
going to occur.
MR. GUANELI noted it often occurs that someone can't get an
attorneyin a DWI case. There is an opinion that it's unethical
for an attorney to advise someone to refuse to take a Breathalyzer
test. To do so, would be advising them to commit a crime, unless
the attorney has a good faith belief that they can legally
challenge the statute that makes it a crime to refuse the
Breathalyzer. This statute has been upheld time and again. There
is no good faith basis to challenge this statute.
MR. GUANELI pointed out that he wonders what an attorney would tell
a DWI individual besides what the officer has already imparted.
This person will loose their license if they don't take it. The
police officer has a litany of rights and consequences they're
suppose to read to the suspect. He questioned the usefulness of
attorney advise at this time. For this reason he does not believe
that the court will find that this is a critical stage in the
criminal justice process to warrant attachment of a constitutional
right to a lawyer or a right to a publicly appointed lawyer.
Number 902
REPRESENTATIVE FINKELSTEIN asked about a case which Mr. Salemi
referred to in regards to particular treatment of DWI offenses and
the need to inform the involved individual of their rights.
MR. GUANELI responded by stating that there is an Alaska statute
which says if a person is arrested, they have an immediate right to
telephone an attorney, friend, or relative. The question the court
resolved in the case mentioned by Mr. Salemi was whether or not
that person was to be given a dime to make a phone call before they
took the breath test or after they took it. The practice up until
this time had been that the individual took the Breathalyzer and
then they made their phone call. The officers did this in order
that the alcohol would not dissipate. The court said the person
must be given their right to call their attorney immediately and
take the Breathalyzer test afterwards.
REPRESENTATIVE FINKELSTEIN asked what part of law this case was
based on.
MR. GUANELI said this case concerned a specific statute and not the
constitutionality of it's requirements. He referred to the court
criminal rule which repeats essentially what the statute outlines.
REPRESENTATIVE FINKELSTEIN asked what the effect on this particular
case would be if this present legislation was passed?
MR. GUANELI said as he understood it, this legislation does not
amend this other statute of the right to speak to an attorney.
REPRESENTATIVE FINKELSTEIN asked if the particular case just
discussed would be overruled.
MR. GUANELI answered that no, this case would still be good law and
that police officers would still have to give people access to a
telephone in private to call an attorney. Whether they get an
attorney who is willing to talk to them is something else again.
All the statute requires is an opportunity to contact someone.
Number 1060
CHAIRMAN PORTER added for clarification the distinction of
compelling someone to blow into a Breathalyzer as versus someone to
testify against themselves. In any situation when someone is taken
into custody and Miranda rights are given, if an attorney is not
available to give advise and is requested, the officer must stop
and not continue the questioning. This legislation doesn't change
that.
REPRESENTATIVE FINKELSTEIN understood that, his question dealt with
that individual who is about to take a Breathalyzer and can't
contact an attorney, how does the court decide that this ruling no
longer applies.
CHAIRMAN PORTER pointed out that the right not to self-incriminate
still applies to a verbal statement, but to a Breathalyzer, once an
effort has been made to contact an attorney the other statute
applies. If that person refuses to take the Breathalyzer then
they're guilty of another offense. The person should be afforded
the opportunity to be informed about their rights in relation to a
Breathalyzer test, not necessarily that an attorney should be
contacted before such a test.
Number 1139
MR. GUANELI added the question was as to whether or not the person
actually contacts an attorney, the content of the conversation once
contact has been made was not addressed. If there is no attorney
available, as long as the officer has given them a chance to try to
contact one before the test, that's all that the statute requires.
CHAIRMAN PORTER used the example of this DWI specific situation as
a balancing of the evidence and the right to an attorney, since the
longer it takes to contact an attorney, the opportunity to
determine alcohol consumption diminishes.
Number 1210
MR. GUANELI clarified that the person about to take the
Breathalyzer does not necessarily have the right to meet with the
attorney in person, only that they are able to attempt to obtain
advise. Again, this goes to the issue of diminishing evidence.
Number 1257
REPRESENTATIVE FINKELSTEIN asked if Mr. Guaneli had a chance to
review the pending legislation as unintentionally amending rule
number 5.
MR. GUANELI said that Criminal Rule 5 (b) which Mr. Salemi referred
to is almost verbatim what the statute outlines in regards to
having a right to call an attorney immediately after arrest. This
bill does not affect that statute, in his opinion, and it does not
affect the rule.
REPRESENTATIVE GREEN wondered if someone can withhold blowing into
a Breathalyzer until their counsel is present. Does that also
apply to these tests on the road?
Number 1330
CHAIRMAN PORTER answered that no, there had to be a reasonable
allowance of time considering that the evidence was diminishing.
A reasonable amount of time is given for an attorney to be present.
REPRESENTATIVE GREEN then asked about the finger to the nose test.
He questioned whether someone can refuse to take this test until
their attorney is present.
CHAIRMAN PORTER stated that someone can refuse to cooperate with
the initial sobriety tests, but then it's up to the officer's
discretion whether or not to pursue the situation further if it
appears the suspect is actually intoxicated, i.e. request that they
submit to a Breathalyzer.
Number 1465
REPRESENTATIVE BUNDE asked whether or not a Breathalyzer is
administered in the field.
Number 1479
CHAIRMAN PORTER answered that there is a mini-Breathalyzer used in
the field. The suspect can also be required to take a full blood
test, which usually produces more consistent results.
Number 1525
REPRESENTATIVE GREEN made a motion that on line 25 of the CS, of
page two, after the word "court," that they strike "on the record."
This would be considered amendment number one. Chairman Porter
noted that because this amendment would be so slight it wouldn't
require the formal amendment procedure.
REPRESENTATIVE FINKELSTEIN asked for some clarification about the
language in Rule 5 and the statute regarding the right to call an
attorney. He pointed out that the court rule said immediately
after arrest and the pending CS said at the time of the person's
appearance before the court. It seemed to him that this pending
legislation clause would amend the court rule.
MR. GUANELI answered that the court rule which representative
Finkelstein addressed and the statute amended in the bill really
refer to two separate issues. The first is the point in time at
which an attorney gets appointed to represent a person and the
court rule addresses when a police officer is required to give the
detainee a dime to make a phone call. These are two distinct
issues and one does not affect the other. The policeman is
required to provide a dime in all cases, whether the suspect is
indigent or not.
Number 1755
MR. SALEMI disagreed as to the interpretation of the language in
each of these instances. If someone was arrested and said they
were broke, under these circumstances the only representation they
could afford would be a public defender. The bill before the
committee would not allow the public defender to answer the phone
in the instance of a person being cited for a DWI offense.
REPRESENTATIVE FINKELSTEIN felt as though the key word between the
present CS and the court rule would be the distinction between the
"opportunity" to speak to an attorney and the "right" to speak to
an attorney.
MR. GUANELI pointed out that the courts have interpreted this rule
and the statute to impose a reasonableness requirement. It does
not require the suspect all night to contact an attorney. As long
as they are given the opportunity. He also added that there is a
problem with how the current law is being applied. If public
defender's are answering the phone and giving advise to any DWI
suspect who calls in the middle of the night without any kind of
inquiry as to their entitlement of representation, this is a
problem as well. This bill seeks to correct this problem. In his
opinion, it does not amend the court rule.
Number 1797
REPRESENTATIVE FINKELSTEIN asked if they could ask for the bill
drafter's thought on this distinction in the language, at least for
a later consideration.
CHAIRMAN PORTER hazard to guess at the result. The word immediate
in this instance has been interpreted to mean a reasonable period
of time. He guessed that this language would not run a foul of the
statute or the court rule.
Number 2033
REPRESENTATIVE BUNDE moved to pass the CSHB 370 (Jud) from this
committee with individual recommendations and attached fiscal
notes. Representative Finkelstein objected for debate purposes.
REPRESENTATIVE FINKELSTEIN stated that he appreciated the audit
efforts regarding the indigence issue, but there's nothing in the
audit which would recommend the passage of this bill. The
auditors suggested that there be specifically defined standards to
determine indigence, either through statute or regulation. There
were also recommendations to internal workings of the public
defender. The audit was perfectly prescribed in this situation and
given some reasonable time period for the agency to correct these
problems, the legislature shouldn't change the rules or whatever.
The legislature hasn't given the court system a chance to put these
suggestions into affect.
REPRESENTATIVE FINKELSTEIN added that there is a very important
cost benefit analysis any time there are attempts to establish a
system for preventing people from getting around the law. He cited
the permanent fund division in their attempts to establish fraud,
the welfare division, etcetera. He asked how much money should
they spend in fraud detection as versus how much money will be
saved by not. He also pointed out that there are no hard
statistics on what the level of fraud is in regards to indigence.
He believed that the outcome of this type of legislation would
create a two-tier system.
TAPE 96-8, SIDE A
Number 060
REPRESENTATIVE BUNDE pointed out that there are two areas of the
bill that are under consideration. There is the area which
Representative Finkelstein just discussed and the issue of self-
appointment. He felt as though there was a problem where a state
agency who was not following what he understood to be the law and
undertaking to represent people who have not been determined to be
indigent. It's a policy call whether or not this should continue.
He respectfully disagreed that not everything is a cost analysis
and that particularly in the system of justice the public has to
have confidence that this system is fair.
CHAIRMAN PORTER prescribed to what Representative Bunde had just
stated. In regards to the audit, the legislature has asked that
the court set out a basis for their indigence determination which
was not previously set out in statute. This should help the court
to recognize that the legislature is serious in trying to set out
consistent standards for determining indigence.
CHAIRMAN PORTER add that the other part of the bill is a policy
decision that doesn't necessarily accrue to the work load of the
public defender which deals with who will establish whether or not
a public defender gets appointed. Should the public defender do
this or the court? Chairman Porter felt as though it should be the
court who decides.
Number 218
REPRESENTATIVE FINKELSTEIN referred to the sponsor statement which
said that this legislation was in response to the audit. He
pointed out that there are a set of anecdotes for either side of
the issue. He thought that audits are good for the legal system
and that this is a reasonable use of resources. He pointed out
again that it's the audit which spurned these changes in
legislation, judging from the sponsor statement. He felt as though
this legislation was premature.
CHAIRMAN PORTER asked for a roll call. Representatives Toohey,
Vezey, Green, Bunde and Chairman Porter voted to move CSHB
370(JUD). Representative Finkelstein voted against moving the
bill. Representative Davis was not present. The CSHB 370(JUD),
as amended, was passed out of committee.
ADJOURNMENT
The House Judiciary Committee meeting was adjourned at 2:50 p.m.
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