Legislature(2003 - 2004)
05/08/2003 03:45 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 8, 2003
3:45 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
MEMBERS ABSENT
Representative Max Gruenberg
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 20
Proposing amendments to the Constitution of the State of Alaska
repealing the prohibition on dedicated funds.
- MOVED CSHJR 20(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 4
Proposing an amendment to the Constitution of the State of
Alaska relating to the duration of a regular session.
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 157
"An Act eliminating the Alaska Public Offices Commission;
transferring campaign, public official, and lobbying financial
disclosure record-keeping duties to the division of elections;
relating to reports, summaries, and documents regarding
campaign, public official, and lobbying financial disclosure;
providing for enforcement by the Department of Law; making
conforming statutory amendments; and providing for an effective
date."
- BILL HEARING POSTPONED
HOUSE JOINT RESOLUTION NO. 9
Proposing amendments to the Constitution of the State of Alaska
relating to an appropriation limit and a spending limit.
- BILL HEARING POSTPONED
PREVIOUS ACTION
BILL: HJR 20
SHORT TITLE:REPEALING PROHIBITION ON DEDICATED FUNDS
SPONSOR(S): REPRESENTATIVE(S)MASEK
Jrn-Date Jrn-Page Action
03/28/03 0671 (H) READ THE FIRST TIME -
REFERRALS
03/28/03 0671 (H) JUD, FIN
05/02/03 (H) JUD AT 1:00 PM CAPITOL 120
05/02/03 (H) Bill Hearing Postponed to 5/5
05/05/03 (H) JUD AT 1:00 PM CAPITOL 120
05/05/03 (H) Scheduled But Not Heard
05/06/03 (H) JUD AT 5:30 PM CAPITOL 120
05/06/03 (H) -- Meeting Canceled --
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
BILL: HB 244
SHORT TITLE:CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
04/04/03 0770 (H) READ THE FIRST TIME -
REFERRALS
04/04/03 0770 (H) JUD, FIN
04/04/03 0771 (H) FN1: ZERO(LAW)
04/04/03 0771 (H) FN2: (COR)
04/04/03 0771 (H) GOVERNOR'S TRANSMITTAL LETTER
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (H) Heard & Held
MINUTE(JUD)
04/25/03 (H) JUD AT 1:00 PM CAPITOL 120
04/25/03 (H) <Bill Hearing Postponed>
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
WITNESS REGISTER
ERIC MUSSER, Staff
to Representative Beverly Masek
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HJR 20 on behalf of
Representative Masek, sponsor.
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
Juneau, Alaska
POSITION STATEMENT: During discussion HB 244, testified in
support of Sections 7 and 14; expressed hope that Section 26
will be helpful; and expressed concern with parts of Sections
[1-5] and with Sections 16.
JEFFREY DUNCAN
Big Lake, Alaska
POSITION STATEMENT: During discussion of HB 244, expressed
dislike for Sections [1-5] and some of the terms in Section 7,
and indicated approval of Sections 6, 8, and 26.
CAS GADOMSKI
Wasilla, Alaska
POSITION STATEMENT: During discussion of HB 244, said that his
feelings paralleled those of Mr. Duncan, and expressed concern
with Section 1.
JOSHUA P. FINK
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 244, relayed his
concerns with the bill in general and specifically with Sections
[1-5], 7, and 12, and responded to questions.
JAMES H. McCOMAS, Attorney at Law (of counsel)
Friedman, Rubin & White
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 244, relayed his
concerns with the bill in general and specifically with Sections
7, 12, 21, and 26, and responded to a comment.
BARBARA BRINK, Director
Public Defender Agency (PDA)
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 244, relayed her
concerns regarding the bill and responded to questions.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified on behalf of the administration
in support of HB 244 and responded to questions.
ACTION NARRATIVE
TAPE 03-55, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 3:45 p.m. Representatives
McGuire, Anderson, Ogg, Samuels, and Gara were present at the
call to order. Representative Holm arrived as the meeting was
in progress.
HJR 20 - REPEALING PROHIBITION ON DEDICATED FUNDS
Number 0050
CHAIR McGUIRE announced that the first order of business would
be HOUSE JOINT RESOLUTION NO. 20, Proposing amendments to the
Constitution of the State of Alaska repealing the prohibition on
dedicated funds.
Number 0058
ERIC MUSSER, Staff to Representative Beverly Masek, Alaska State
Legislature, on behalf of Representative Masek, sponsor, said
that HJR 20 was introduced to ask the voting public to support a
change in Article IX, Section 7, of the Alaska State
Constitution. Specifically, if adopted by the legislature and
passed by the electorate at the next general election, the
amendment to the Alaska State Constitution would require all
motor fuel taxes generated through the sale of motor fuels only
to be placed in a constitutionally protected fund for the
express purpose of maintaining Alaska's roads and highways.
MR. MUSSER noted that the Alaska State Constitution prohibits
dedicated funds except for the Alaska permanent fund, when
required to receive federal funds, or for dedicated funds in
existence prior to the adoption of the constitution. Amending
Alaska's constitution should not be taken lightly, he remarked,
and is considered with great trepidation. However, as state
revenues continue to decline, the sponsor believes that Alaskans
would be more amenable to contributing to the effort of
maintaining the road and highway infrastructure if they had
assurances that the motor fuel taxes levied were utilized for
that express purpose, he relayed.
MR. MUSSER said that motor fuel taxes in all states are
dedicated in some fashion for road and highway maintenance. In
Alaska, motor fuel taxes are currently deposited in a special
highway-fuel-tax account within the general fund (GF). However,
the legislature may appropriate these funds for other purposes,
and the sponsor feels that such would happen with increased
motor fuel taxes, he additionally relayed. He asked the
committee to support the proposed committee substitute (CS).
Number 0239
REPRESENTATIVE SAMUELS moved to adopt the proposed CS for HJR
20, Version 23-LS0889\D, Kurtz, 4/2/03, as amended by
handwritten changes, as the work draft. There being no
objection, Version D, as amended, was before the committee.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify on HJR 20, closed public testimony.
REPRESENTATIVE SAMUELS asked: "How much do we spend in road
dollars now, as opposed to what we collect? Is it a moneymaker,
above and beyond?"
MR. MUSSER replied:
Presently, no. Actually, there's serious deficiencies
to the tune of ... $30 million, based on the
Department of Transportation's annual maintenance
needs versus what we fund currently. As submitted in
the governor's bill ... increasing the ... fuels tax,
the estimated revenue ... would generate about $69
million, about $9 million over what the department had
estimated were the annual maintenance needs. And I
understand an amendment was made in the House Finance
Committee that reduced that ... anticipated revenue.
CHAIR McGUIRE asked, "Philosophically, what would be the
rational for dedicating funds in this area when we don't do it
for many other well-deserving areas such as public safety or
education?"
MR. MUSSER replied:
The sponsor feels that ... that is a very ...
philosophical and difficult issue. Typically, motor
fuel taxes are designed for that purpose. And in fact
..., currently, the revenue does go into a highway
revenue fund within the GF and typically allocated to
the department to meet our needs. But it's a
substantial change; ... she feels that because it is
more than a doubling of tax receipts ... for that, and
because of the volume of traveling between the valley
and Anchorage and the commuters and the amount that
would be paid, that the public should have some
assurances that that's what it's going to be used for,
that the legislature would not come in and determine
that other needs may exist and want to short fund our
highway maintenance program.
Number 0502
CHAIR McGUIRE asked why not do it for alcohol or tobacco taxes,
so that those user fees are dedicated specifically for purposes
of cessation or treatment of health problems that stem out of
those substances?
MR. MUSSER replied:
That question was raised and even discussed, and that
was ... an example. As you know, when the tobacco tax
was substantially increased just a couple of years
ago, during that debate and adoption of the increase,
a percentage ... [of] about 20-22 percent or so was to
be expressly utilized for tobacco-cessation programs,
for ... youth education and efforts, and what have
you. And, obviously, there are those within the anti-
tobacco area that feel that the legislature is not
living up to an agreement, which led to the support of
that increase.
And the same was said just last year with the alcohol
tax increase, that levels of funding would be used.
... And that sort of gets, really, to the issue ...
[of] this debate: ... should perhaps the legislature
consider changing ... prior ... policy ... decisions
and say, "Yes, we want to ensure that highway
maintenance (indisc.) are met, and ... we're going to
do this." And that really is the heart of the
question.
REPRESENTATIVE ANDERSON offered his belief that the Alaska State
Constitution isn't so sacred that it can't be changed. He said
he does not know why funds aren't dedicated; he indicated a
desire to have dedicated funds, and relayed that he'd been
opposed to the increase in alcohol tax because it goes into the
"pot" and not to help related programs.
MR. MUSSER, in response to questions, relayed that 39 states
currently expressly dedicate motor fuel receipts to highway
maintenance and operation, and that all 50 states have the
intent to dedicate those funds. He noted that the delegates to
the constitutional convention extensively debated the issue [of
dedicated funds], and looked at Texas, which at the time had 90
percent of its revenue dedicated, as an example. The question
is whether to begin dedicating funds, or to continue with what
the framers of the constitution intended, that the legislature
have the flexibility to "make the annualized policy calls." He
relayed that the sponsor feels very strongly that the
constitution should be amended for this particular purpose.
Number 0825
REPRESENTATIVE SAMUELS, after noting that some departments don't
generate revenue sufficient to meet their needs, asked Mr.
Musser whether he thought that other departments should have
their revenues dedicated.
MR. MUSSER said he could not speak for the sponsor on that
issue, which, he added, is at the heart of the debate. He
remarked, however, that it appears as though, to date, the
legislature has felt that funds should not be dedicated, that
there is a greater diversity of needs that warrant allocation of
funds.
REPRESENTATIVE GARA said that this issue raises a concern:
That there's some programs where there's a parallel
tax, and we can say, "Okay, well let's put all of the
revenue from that area into these programs." But
there are some programs where there's no relevant tax
- no relevant source of money. ... So, let's say we
dedicate all motor fuel money to highways and all
cigarette tax money to health care, ... but then we
have all these other unfunded things like ... the
hiring of social workers and foster care or the
funding of schools.
... Should we not be concerned that if we start
dedicating money to specific programs, not enough
money will be left for the areas where we don't
dedicate? I think that was largely the concern of the
[framers] when they said, "Look, in Texas, 90 percent
of their money is dedicated; with the ten percent of
the money that's left, [they] don't have the
discretion to fund all the things that aren't
dedicated." ... What are your thoughts [on these
points]?
MR. MUSSER replied:
Again, I can only come back to, "That's the heart of
the debate." Our [framers] ... felt expressly that it
would be poor public policy to hamstring the
legislature's authority to allocate or appropriate
funds deemed appropriate by the legislature.
Dedicating this revenue takes that authority and
decision-making ability away from this body. ... I
can't speak to whether that's right or wrong; ... that
is certainly up to the committee ... to look at that.
Number 1100
REPRESENTATIVE GARA asked whether the funds HJR 20 proposes to
dedicate would also be spent on road construction.
MR. MUSSER said the funds would only be for "maintenance and
operation."
REPRESENTATIVE GARA, remarking that the legislature wouldn't
want to dedicate more money than is spent for a particular
purpose, asked whether any calculations have been done regarding
the estimated revenues from the governor's proposed increase in
motor fuel taxes and the estimated spending for operation and
maintenance.
MR. MUSSER reiterated that the estimate is $69 million in
revenue and $60 million in operation and maintenance costs. He
suggested that the legislature could decide to reduce the tax so
as not to have a surplus in a dedicated fund.
REPRESENTATIVE OGG asked about taxation of marine fuel and
aviation fuel.
MR. MUSSER said that including those taxes was considered, but
[the sponsor] decided against doing so. He mentioned that the
marine fuel tax account was meant to augment marine highway
operations, but that the sponsor would be amenable to including
"all consumptive fuel taxes ... except aviation."
REPRESENTATIVE SAMUELS noted that there are a lot of federal
guidelines regarding what can and cannot be done with aviation
[fuel] taxes. In addition, if a local community taxes aviation
fuel, the taxes must be spent on its municipal airport rather
than a state-owned airport. On the issue of whether to take
away the legislature's authority to appropriate funds from the
motor fuel tax account, he indicated that if the oil revenues
continue to decline, the legislature might have to choose
between funding schools or fixing roads. He pondered whether
creating a dedicated fund as proposed by HJR 20 would be good
public policy.
Number 1440
MR. MUSSER said that it is because of declining revenues that
the sponsor feels it is important for the legislature to
consider the express use of these funds for the operation and
maintenance of highways and roads, which are used by all
Alaskans. In response to a question, he indicated his
understanding that the funds specified in HJR 20 would not used
for capital costs.
CHAIR McGUIRE suggested that such would be a detriment, and that
there ought to at least be some leeway to spend funds for
capital costs. Notwithstanding that point, she indicated that
she would support advancing the legislation from committee
Number 1522
REPRESENTATIVE ANDERSON moved to report the CS for HJR 20,
Version 23-LS0889\D, Kurtz, 4/2/03, as amended by handwritten
changes, out of committee with individual recommendations and
the accompanying fiscal note. There being no objection, CSHJR
20(JUD) was reported from the House Judiciary Standing
Committee.
The committee took an at-ease from 4:14 p.m. to 4:15 p.m.
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 1582
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date."
CHAIR McGUIRE noted that amendments to HB 244 were being
drafted, and indicated that the committee would be considering
the deletion of the "affirmative defense" provisions. She asked
that folks testifying specify which sections of the bill their
comments pertain to.
Number 1690
LAUREE HUGONIN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), said that the ANDVSA
supports Sections 7 and 14. She elaborated, "Section 7 talks
about admissibility of prior convictions; Section 14 talks about
consecutive terms of imprisonment if you have, under a separate
judgment, any term of imprisonment imposed in a later judgment,
amended judgment, or probation revocation." She said that the
ANDVSA has concerns with some parts of the self-defense
sections, Sections 1-5, and would support their deletion.
Additionally, the ANDVSA has concerns with Section 16, which
places into statute a mitigator in sexual assault cases; if the
person were to "plead" within 30 days, there would be a
statutory mitigator to the sentence merely for owning up to the
crime.
MS. HUGONIN said that regardless of the fact that in practice,
the latter is currently being treated as a non-statutory
mitigator, and that Section 16 is merely an attempt to reduce
the time during which this mitigator might be available, the
ANDVSA still has concerns about having this mitigator at all.
To elaborate, she offered the following example:
[In] a recent [sentence] that was handed down in
April, a person was charged originally with two counts
of sexual assault in the third degree, which is a
felony; he plead no contest to one misdemeanor count
of attempted sexual assault in the third degree, and
his sentence was 365 days in jail with 275 suspended.
And if you read the facts in the case, it was an
egregious sexual assault. So it seems like, in our
experience in the field, that something that should be
charged as a sexual assault in the first degree often
ends up being a much lesser count, and so the sentence
is reduced accordingly.
MS. HUGONIN then turned to Section 26 and said that the ANDVSA
is hopeful that this provision will be helpful; Section 26
broadens the timeframe in which something could be considered an
"excited utterance" for the purpose of prosecuting the crime of
domestic violence. In response to a question, she indicated
that the ANDVSA has no opinion on the sections of the bill that
she has not specifically mentioned.
Number 1884
JEFFREY DUNCAN said that as a private citizen, he dislikes
Sections [1-5]. He remarked that Section 6 looks like a good
provision, but that he dislikes some of the terminology used in
Section 7, particularly that which refers to a jury consisting
of six members. Section 8 looks real good, he opined, adding
that he also likes Section 26 because he believes that domestic
violence needs to be reported.
Number 1961
CAS GADOMSKI, after relaying that his feelings on HB 244
parallel those of Mr. Duncan, said that he is a private citizen
and a retired police officer. He then went on to say:
Looking at the sectional analysis of all this, my main
concern, as far as what I don't like, lies in Section
1. This section would change "heat of passion" from a
defense that the state must disprove beyond a
reasonable doubt to an affirmative defense that the
defendant must prove by preponderance of the evidence.
That in itself gives me a problem, and I see no reason
for it. I feel it's wrong, and I would like to see it
struck; I feel it's totally wrong. ... The entire [HB
244] is fairly complex. I wouldn't be brokenhearted
to see the entire bill struck, but my main problem, as
far as what is left, is here in Section 1 - the heat
of passion [for] a defense.
There's been rumors that [it] ... was introduced [at
the] urging of prosecutors to address gang situations.
But it doesn't say that [anywhere] in the bill; it
doesn't refer to, quote, "gang members" or "gang
situations." If one is carrying his pistol and
suddenly is confronted with a problem that he must
handle, well, there he finds himself in a situation
where he has to defend himself, but he doesn't know in
advance that that's going to happen. One does not
make an appointment for an emergency. And so it's a
very complex and troublesome thing here. I don't like
it at all.
CHAIR McGUIRE mentioned that there is a proposed amendment to
delete that section of the bill.
Number 2103
JOSHUA P. FINK stated that although he is an assistant public
defender with the Public Defender Agency (PDA), he would be
testifying on his own behalf. He said:
Generally, this legislation is a broad and unwarranted
attack on citizens' rights. And they're rights that
we've cherished for centuries; their history with our
jurisprudence goes way back, from the beginning.
We're talking about the right to self-defense; I
understand you've addressed that, and I'm thankful for
that. We also have the right to not be forced to
testify against yourself or incriminate yourself.
This bill really empowers government at the expense of
individual rights - and I don't think criminals'
rights, because these are rights that protect all of
us. I mean, you are ... presumed innocent in our
judicial criminal-justice system, and these are rights
that we all enjoy.
So it actually, frankly, surprises me that this
legislation was proposed by a conservative Republican
governor, the governor who I supported and continue to
support but [who], I'm convinced, was not fully
briefed or staffed on this legislation. I don't
believe people that share conservative philosophy
about government's role and individual rights could
support this legislation. Having said that, I think
that this bill needs to be thoroughly worked through,
... thoughtfully considered and debated, and I'm
concerned that there is not enough time left in the
waning days of the session to adequately address these
substantial changes in the law this bill proposes. ...
MR. FINK sought confirmation that there is a proposed amendment
that would delete Section 4. He then went on to say:
On Section 7 - the admissibility of prior convictions
- my concern there, in a general way: ... juries will
convict based on someone's prior history regardless of
the evidence before them on the crime for which
they're [at] trial. It's propensity evidence, and
almost all jurisdictions in the United States set
limits on when priors can come in and under what
circumstances - very strict limits - because it has
been shown, time and time again, ... [when] the state
[has] no evidence against an individual, you can
produce priors ... [and] the trial is over. ...
Number 2269
You've denied that individual a fair trial - he's
going to be convicted on his priors. And I would just
caution the committee, and look into changes to the
law which allow, essentially, prior bad acts that are
going to put the defendant in very unfavorable light,
that the committee think about that; that really
undercuts, in a very fundamental way, the fairness of
the trial. And there are reasons that every
jurisdiction, including ours, has very strict limits
on when that can come in - when prior convictions or
prior bad acts can come in. And I would ask the
committee to take a hard look at this section and
really think about whether [it detracts] ... from the
integrity of our judicial system, knowing we could be
getting convictions on lots of people based on old
conduct that has nothing to do with the current
offense as charged.
MR. FINK, turning to Section 12, continued:
On Section 12, dealing with the Fifth Amendment, this
section essentially eviscerates - guts - the Fifth
Amendment. I don't think it will stand constitutional
scrutiny. ... The Fifth Amendment, the right not to
testify against yourself dates back to the Magna
Charta. And the reason they put it, initially, in the
Magna Charta - and we have kept it in common law ...
statutory law, [and] constitutional law since - is
because the government used to have this nasty habit
of getting confessions out of people through less than
legitimate means: (indisc.) torture, psychological-
type methods. People were falsely confessing. That's
where the right to ... not self incriminate came from.
This section says that if a witness claims the
privilege not to incriminate himself, it would force
him to divulge to the prosecuting attorney back in the
judge's chambers. You've got no privilege if you do
that. ... You've been forced to divulge the
information that's incriminatory to the prosecuting
authority. ... It eviscerates the Fifth Amendment; it
guts it. And I don't think it would withstand
constitutional muster, and I don't think this
committee or the legislature wants to go on record as
saying ...: "The Fifth Amendment is not important";
"We don't believe this bedrock, fundamental principle
of our system serves a purpose anymore"; or, "We don't
believe in it." ...
MR. FINK concluded:
This bill is really riddled with problems, and I would
love the opportunity to work with the committee and
follow up with some comments, more specifically, on
each section. But I will end my testimony there, and
thank the committee ... for allowing me this
opportunity to testify.
CHAIR McGUIRE asked Mr. Fink to comment on Sections 14 and 26.
MR. FINK offered to submit written comments on those sections
after he'd had a chance to review them.
TAPE 03-55, SIDE B
Number 2380
REPRESENTATIVE GARA asked Mr. Fink to explain to the committee
the current rule pertaining to allowing evidence of a prior
conviction.
MR. FINK said:
Well currently, prior bad acts that are relevant in
some way may be admissible; for instance, where you've
got domestic violence or sexual assault. The rules
allow [it], in certain circumstances, if a prior bad
act is similar in that you've got a similar-type
victim [and] you have similar-type behavior; those are
specific exceptions the legislature has made against
the general rule that they can't come in because of
the prejudice. Also, prior bad acts can come in if
they're going to show motive, a scheme or design, [or]
opportunity. [There are] very limited and specific
exceptions to the general prohibition that prior bad
acts may not come in because of the prejudicial
effect.
Here, this section is specifically ... dealing with
the [DWI, driving while intoxicated]. ... Because ...
a felony DWI requires a certain number of priors,
right now ... that information is kept from the jury,
and the jury determines the guilt or the innocence of
the person in the first phase of the trial without any
reference or knowledge of these past offenses. Then,
if the jury convicts ..., [in] the second part of the
trial the jury would then be made aware of those
convictions - the state would have to prove them up -
and that would establish the felonious nature, for
instance, of a third DWI in five years.
But it is specifically prevented from coming in at the
first part because it's common knowledge and it's
common experience [that] the jury will likely convict
based on those prior acts rather than the current
behavior. So there is a strong tradition and strong
public policy - judicial policy - against the prior
bad acts, and very limited exceptions have been carved
out. This Section 7 just blows a hole through
someone's ability to get a fair trial on a felony DWI.
REPRESENTATIVE SAMUELS, referring to the comment that the state
has to prove the prior convictions in the second part of the
trial, asked how that occurs.
MR. FINK said that oftentimes the defense will simply stipulate
- agree - that the prior convictions occurred. If the defense
does not do so, however, the prosecutor can produce the
conviction, either through a transfer of court records, if the
prior conviction occurred in Alaska, or via a certified copy of
the judgment, if the conviction occurred out of state. He
remarked that the second portion of such a trial is generally a
quick process.
Number 2247
JAMES H. McCOMAS, Attorney at Law (of counsel), Friedman, Rubin
& White, noted that he has been a criminal defense lawyer for
the last 25 years, the last 15 of which have been in Alaska. He
said:
I want to commend the committee for making short work
of the "heat of passion" and self-defense provisions
[Sections 1-5]. But I think you should also ask
yourself this question: Why in the world was anything
so radical ever even proposed in the governor's bill?
I mean these were massive changes that are utterly
indefensible. And the purported factual basis for
them consisted of anecdotes apparently collected by a
Mr. Novak. When you start examining the cases that he
actually identifies, and I understand that there was
some discussion of this before, you find out that they
are very different, in fact.
And that concerns me about the entire bill. And I
join in Mr. Fink's recommendation; I don't think that
anything in this bill should move on this year. And I
think what the committee really should do is go out of
its way to solicit even more input on the sections of
the bill that it's not going to summarily, or after
the consideration already given, delete.
MR. McCOMAS then spoke to specific provisions of HB 244:
The provision [Section 26] that would permit, in
domestic violence cases, hearsay statements to be
introduced beyond what the rules of evidence provide
now is extremely unwise, number one, and almost
certainly unconstitutional. One has to start with the
question: Why DV [domestic violence] cases? Why not
sexual assault or sexual abuse cases? Why not murder
cases? Why not serious armed robberies? Why not
attempted murders?
[Tape 03-55, Side B, contains nothing further.]
TAPE 03-56, SIDE A
Number 0001
MR. McCOMAS went on to say:
What you have to understand, of course, is that the
exceptions to the hearsay rule, all of them, are not
case-type specific. Instead, all the exceptions to
[the] hearsay rule are based on the fact that there's
some reliability that inheres or is attached by
circumstance: ... business records, public records,
excited utterances because they happen so close in
time when people are under the stress of the event and
they don't have a moment to think about and style
their answers.
That concept, which is fundamental to the hearsay
rule, is completely voided here and creates a
situation where an individual can make statements,
very deliberate statements, thought-out statements,
even collusive statements, and then have them
admitted. And remarkably enough, under this
legislation as I understand it, the person doesn't
even have to testify at trial. So that prosecutors
could decide, "Well, you know, this complainant's not
going to make a good impression [on] the jury," or,
"She's going to have to answer some hard questions
about [what] she was doing with the defendant before
she says this allegedly occurred; our case will be
better off if we just use the tapes of her interviews,
or if we just call the neighbors and friends to whom
she told her side of the story." And I just don't
see, frankly, any court permitting that kind of
obviously unreliable hearsay evidence to be admitted
given the confrontation clauses of the state and
federal constitutions.
Number 0193
MR. McCOMAS continued:
Section 12, I guess, is the one that deals with
immunity. This is plainly unconstitutional, but ...
I'm not even sure if I should point this out or not,
or just let it get passed. ... If what happens is that
the court compels the defense attorney to proffer, in
the presence of the prosecutor, what the client would
say if immunized, then either there's been a gross
violation of ... [state and federal privileges]
against self-incrimination - having the lawyer say it
instead of the client is constitutionally meaningless
because the attorney is the agent of the client and is
relating what the client would say - ... or it may be
that the effect of that would be, judicially, to
trigger transactional immunity for the person whose
lawyer was forced to make the disclosure to the
prosecution as to all transactions that were revealed,
and that that would be the only way of curing the
compelled disclosure that had been required. This one
doesn't pass, frankly, first-year law school analysis,
and it's remarkable to me that something like this is
actually in the bill.
There's a requirement [Section 21] that the defense
give notice of defenses. That already exists. There
is a suggestion that the notice of defenses should be
earlier than it is now, and I don't think the
difference between 7 days and 21 days or even 30 days
is a big deal. I don't think it's necessary to expand
the time frame, but I don't think that that's a big
deal.
CHAIR McGUIRE noted that testimony during the bill's prior
hearing indicated that a victim's family and potential witnesses
had taken time off from work and flown up to Alaska, only to be
told that a trial was not going to take place as scheduled, and
that therefore [the current statutory notice provision] has been
abused.
Number 0354
MR. McCOMAS replied:
Well, I understand, but you see, it's not like there's
a problem. What you heard was, I think, one chief
anecdote. And it's really bad public policy,
especially since there's almost nobody left to speak
on behalf of the criminally accused; I mean,
politically, there isn't a political party that will
even take these positions regularly as a matter of the
internal principles of their party. But if we start
legislating now, not on real need but on the basis of
individual case anecdote -- ... and that's what the
prosecution seeks. I mean what they want is for every
rule to be fixed in a way so that they never lose a
case, and [so] that there's never another acquittal in
the state of Alaska. I don't think that's the kind of
system you want to have.
It's not just their side that's prejudiced. I mean,
the big joke about this provision is, I have never
tried, ... in 15 years in Alaska, a murder or any
other serious case in which there hasn't been at least
one discovery violation by the prosecution and we
didn't get, until during trial, material we should
have had months or years ago. And yet there's no
provision in this bill to suddenly ... have some kind
of drastic result in the event the prosecution fails
in ... its burden. Instead, the presumption is that
... there's a continuance.
The other thing I have to tell you is that even the
U.S. Supreme Court isn't going tolerate a statute that
creates an automatic preclusion sanction. ... They've
already made that clear in their cases that have dealt
with alibi notice, that you cannot, automatically,
preclude all alibi witnesses simply because a rule of
7 days or 30 days has been violated. There has to be
a case-specific assessment of whether there actually
was any prejudice and, if there was any prejudice, ...
then what. So I don't really see the need there, and
I know that the sanction is unconstitutional.
Number 0495
MR. McCOMAS then turned to Section 7 and said:
I would say it would be a very rare case in which the
prior crimes were a contested issue. And I think that
in the vast majority of these cases ... - assuming
that the prompt discovery is given by the prosecution
of certified copies of prior convictions - that the
so-called second phase of the trial is either going to
be stipulations by the defense that those prior
convictions exist or 20 minutes' worth of testimony
that, yes, these are certified copies and a
perfunctory 5 minutes of the same jury finding that
that meets the standard. The suggestion to the
committee, which I understand was that there would
have to be two trials and two separate juries, is just
totally fabricated. That wouldn't be the situation at
all. That doesn't happen now, and there's no reason
for it to [happen].
MR. McCOMAS concluded his testimony by saying that he'd be happy
to answer any questions.
CHAIR McGUIRE mentioned that it is her intention to not alter
the provisions regarding consecutive sentencing.
Number 0635
BARBARA BRINK, Director, Public Defender Agency (PDA),
Department of Administration, after mentioning that she has been
a public defender in Alaska for 21 years, noted that her deputy
director, Linda Wilson, prepared written testimony that has been
provided to the committee.
CHAIR McGUIRE assured Ms. Brink that she needn't address the
self-defense provisions of the bill.
MS. BRINK turned, then, to Section 6:
Section 6 has to do with an accused person's right to
consult with counsel when they are at the police
station. And this amendment that's proposed in the
bill would limit the rights of an accused to consult
with the attorney, and I haven't heard any
explanation, or belief, or rationale to justify this
provision. It just seems to be a misguided effort to
keep a prisoner without counsel as long as possible,
although, of course, by the mere fact that the person
is in custody and accused of a crime, his right to
counsel ... [begins] immediately.
What happens, usually, when a person is arrested is
that if the family and friends of that person have any
financial wherewithal at their disposal, they will
make arrangements for an attorney to represent that
person, and then that attorney will go down to the
police station. The practical effect is that with
this amendment, only if the person in custody knows
that a person has been retained to represent them will
they make the specific request to ask to speak to that
person, and because that person is now being held
incommunicado and doesn't have the ability to speak to
their family and friends, they're not going to know
that.
So, in the first case, I don't see what problem is
trying to be fixed with this [provision of the]
legislation. And what you also have to understand is
that many accused people, people who are in custody
and being interrogated, have mental disabilities or
they're young and inexperienced or, frankly, not very
smart. And we all know that the police have at their
disposal a wide variety of means to extract
confessions or statements from people including the
fact that it is perfectly okay for police to lie to
people to get them to make statements.
And, as Mr. Fink pointed out, we have a very real
problem with people who are held incommunicado
confessing to things that they haven't done or being
mislead, and so an arrested person really ought to get
the benefit of the lawyer that his or her loved ones
have secured. So we don't agree with Section 6, and
we don't really see what problem is attempting to be
fixed.
Number 0799
MS. BRINK turned to Section 7:
Section 7 of the bill [is] trying to make evidence of
prior convictions admissible in a case where it's an
element of the offense. ... There's been a lot of
testimony by Mr. Fink and Mr. McComas about that. I
have to agree with everything they've said and
particularly Mr. McComas's statement that it isn't
that we hold two trials, now, in order to determine
this. This instance comes up in two types of cases:
DWI cases where what type of charge depends on how
many prior DWIs you have, and shoplifting cases where
there is a felony shoplifting provision that depends
entirely on how many prior shoplifting [convictions]
you have as well.
And, as both the previous witnesses testified, you
eviscerate due process when you try to get convictions
based on what someone's done in the past as opposed to
good, hard evidence of whether they've done this
particular crime. And a person doesn't get two
separate trials; it's just a simple "order of proof"
situation. If a person is found to have committed
this new offense, whether it's a DWI or a shoplift,
and they still wish to contest whether or not these
prior convictions are valid, then the same jury in the
same courtroom during the same course of the afternoon
is given information about the prior convictions.
And, as Mr. Fink pointed out, it's pretty easy to
prove a prior conviction.
But that brings up the second part of this
[provision], ... which changes the burden of proof to
challenge the validity of the prior conviction. As it
currently stands, the prosecutor is able to easily
prove prior convictions. And why is that? Because
they have access to information nationwide. There
[are] some national law enforcement organizations that
have computerized databank systems that are not
accessible to the defendant, that are not accessible
to defense counsel, but ... [that] certainly are
accessible to any prosecutor to find a prior
conviction in any location in any other state, be it
federal or state.
Number 0901
MS. BRINK continued:
So shifting the burden of proof, which Sections 7 and
15 do, ... really imposes ... a hardship on a person
who's accused of a crime. The defense, the defendant,
the accused person, doesn't have access to that kind
of information, that kind of ability to find out,
nationwide, what's out there and what isn't out there.
And secondly, the bill changes what you can challenge
a prior conviction for. It says you can only
challenge a prior conviction if a person was denied
the right to counsel or they were denied the right to
a jury trial.
... But there are many, many ways in which a
conviction can be unconstitutional. What if the jury
was instructed improperly on what the law was? What
if a client who plead to a crime wasn't informed
properly of what the elements of the offense were?
What if a person was convicted by using perjured
testimony? I really don't think we want to be a state
that says none of those things matter and all of those
things are going to be valid prior convictions. So
that's why I have problems with those sections of the
bill.
REPRESENTATIVE SAMUELS, turning back to Section 6, asked Ms.
Brink if she is suggesting that once someone has been read the
Miranda warning, just because that person is "young and stupid,"
he/she should have extra protection and not be questioned until
a lawyer is present.
MS. BRINK replied:
Well, frankly, ... if a person is [read the Miranda
warning], then they're on notice that if they want to
have an attorney, they can have one right then. And
in fact, if they want to have an attorney, all
questioning must stop until that attorney is provided.
What we're talking about is a situation where there's
an attorney already there, waiting to speak to that
person, that has been retained, in fact, to represent
that person, [but] the person who's being questioned
doesn't know that, and so they can't ...
REPRESENTATIVE SAMUELS interjected to say, "But they've been
[given the Miranda warning] and they've turned it down."
Number 1035
MS. BRINK countered: "Well, they haven't turned it down. What
if they have said, 'Well, I can't hire one' or 'I don't have the
money on me right now.'"
REPRESENTATIVE SAMUELS remarked: "Then one would be provided by
the state. Isn't that part of the [Miranda] warning?"
MS. BRINK replied:
Well, it doesn't really say one will be provided by
the state; it says one will be provided to you
immediately. But here's the situation: What about
the middleclass people, who know that they might not
qualify for appointed counsel, but lo and behold,
their family has counsel already there at the
jailhouse door wanting to talk to them. Should we
treat those people differently than poor people? A
poor person could say, "Yes, appoint one to me." But
for that person who knows they won't qualify for
appointed counsel, should we treat them differently,
and not give them access to the lawyer that's ready,
willing, and waiting to help them ...
REPRESENTATIVE SAMUELS interjected to say:
I assume if I say whether I'm rich, poor, or
indifferent - and your original point was most of them
are young and stupid - so I'm assuming, then, that if
I want a lawyer, that ... the rest of it's going to
get sorted out, and if my family has one for me
outside, then the process stops. I think the point of
the bill was that if a lawyer or a family member shows
up, that they don't have a right to go talk to
somebody that's been [given the Miranda warning] and
turned it down.
Number 1078
MS. BRINK replied:
I think a lot of people don't affirmatively turn down
a lawyer, because, frankly, it isn't that clear to you
when a lawyer will be appointed to you. A lot of
times during questioning, a person will say, "When
will I get a lawyer?" and the police, rightfully so,
will say, "Well, we can't get one in here now; when
you go to court, when you get arraigned, that's when
one will be appointed to you." And so the person in
the police station is left feeling like, "Well, I
should talk to the police because I want to clear this
up, and if I decide to wait for a lawyer, the police
won't talk to me."
So, I appreciate that you're feeling like these people
are turning down a lawyer, but in fact, it's most
often based on confusion of how soon a lawyer can be
provided for them and their desire, truly, to
cooperate with the police and tell them what they
might know about the situation. So it's not so much
an affirmative turning down of counsel as a
misunderstanding of how the process works, and how
they could access an attorney quickly.
REPRESENTATIVE GARA posed a situation in which the person in
custody has not yet asked for an attorney and there is no
attorney present at the police station. He asked whether the
police are currently precluded from talking to that person.
MS. BRINK said that under that scenario, the police can talk to
the person. In response to another question, she said: "I
don't think it's so much [that] we're saying ... we're going to
prohibit the police from talking to him, but we're going to
allow that prisoner to talk to the attorney who's there waiting
to talk to him."
MS. BRINK turned next to Section 8 and said she has no problem
with it because it seeks to conform Alaska's immunity statute to
the Alaska State Constitution with regard to witnesses who
testify in a criminal proceeding after establishing, to the
judge, a valid privilege against self-incrimination. She
relayed that the 1993 case, State v. Gonzalez, interpreted
Article 1, Section 9, of the Alaska State Constitution to
require what is called full transactional immunity, meaning
complete immunity from prosecution any time the prosecution
wants to force a witness, with a legitimate claim of privilege,
to testify.
Number 1307
MS. BRINK pointed out, however, that Sections [9-12] allow the
prosecutor to participate in the proceedings in which the court
determines whether there is a valid claim of privilege. She
said that she agrees with previous witnesses on the point that
one cannot preserve a privilege while "spilling" all the
information to the prosecutor. She added that those are two
completely inconsistent goals, and allowing the prosecutor to
hear that proffered testimony would violate statutory guarantees
against self-incrimination.
MS. BRINK turned next to Section 13, 14, and 18-20, which, she
posited, propose to amend the sentencing statutes to require
consecutive sentencing in more circumstances and to eliminate
the court's ability to determine the appropriate amount of
consecutive time for certain crimes. She went on to say:
Frankly, I don't think this legislation is needed. I
think that the trial courts are well aware of the
legislative preference for consecutive sentences, and
they give that preference great weight in imposing
sentences. They do impose consecutive time when it's
required by statute. The whole question is, though,
because we have presumptive sentencing, ... if you're
in a car accident and you get convicted on two counts
of assault, let's say, in the second degree, if you
have [a] prior felony, each one of those counts
requires a four-year presumptive term.
Now, it's kind of fortuitous that because you have two
people in the car, all of a sudden you have two counts
of assault and all of a sudden your sentence is going
to be eight years, whereas if [a] person was fortunate
to only have one person in the car, they'd be looking
at a four-year sentence. The bottom line is that it
isn't always appropriate, in every single
circumstance, to impose the entire second sentence
consecutively, particularly given the fact that we
have presumptive sentencing that can range 10, 15
years, and be required. So you're going to end up
increasing a lot of sentences, doubling some
sentences, and having huge, serious fiscal impacts on
the amount of jail time that people are required to
serve based on kind of fortuitous circumstances.
Number 1417
MS. BRINK continued:
Additionally, it's kind of inconsistent to
automatically impose these consecutive jail-time
sentences when a judge is supposed to take into
account a lot of different things when he's giving a
sentence, including the seriousness of the present
offense, what the prior criminal history of the
defendant is, the likelihood of rehabilitation, the
need to combine them to prevent harm to the public,
[and] whether the sentence is appropriate to deter
this person from future crime or deter other people
from future crime. And just imposing a consecutive
sentence in toto doesn't let a judge consider all
those other circumstances.
I mean, one of the goals of presumptive sentencing was
to try to get uniformity in sentencing, and if you
take away all the judge's discretion and their ability
to look at all those other circumstances, you're
actually creating less uniformity in sentencing
because it will depend on fortuitous circumstances
like the car example. Or what if the [district
attorney] decides to indict somebody in separate
indictments on a number of counts? If all of these
counts are in the same indictment, and they get
sentenced at the same time, then there's a different
result than if each count is listed in a separate
indictment and the person is sentenced in separate
sentencing proceedings. So, it just doesn't make a
whole lot of sense to me in promoting uniformity in
sentencing and in allowing judges to consider all the
things they need to consider in setting a sentence.
MS. BRINK then addressed Section 16:
Section 16 adds a mitigator for consideration at
sentencing if a person pleads within 30 days of being
arraigned on the charge. I certainly understand the
public policy implications behind that. I don't think
it's a bad idea, but I have to say, 30 days after an
arraignment it would be unusually rare in a sex
offense for us to have the discovery complete from the
prosecutor's office .... And you certainly don't want
a client, a defendant, a person accused of a crime,
pleading out to a sex offense, which in most cases has
serious presumptive sentencing, without having all the
information necessary in their case.
Number 1511
I don't think the state has the ability, or they
certainly aren't showing the ability, at this time, to
get discovery to us in a timely fashion; it's
certainly not within 30 days on an arraignment of a
felony. So it might be a better solution to have the
triggering ... be not a specific period of time, but
maybe before an event, [for example], 30 days before
trial, or before motions are filed, or some other
trigger that would inspire the case to settle early,
because, believe me, we also have an interest in
settling cases early but still [making] sure we have
all the information we need to have before we advise
somebody to plead.
REPRESENTATIVE GARA, turning back to the consecutive sentencing
provisions, asked Ms. Brink to explain what she meant regarding
multiple indictments.
MS. BRINK replied:
Well, as I understand it, under proposed subsection
(a) [of Section 14], the mere existence of what they
call a separate judgment eliminates any prospect for
concurrent sentencing. So ... let's say the person is
driving from Anchorage to the Mat-Su valley and is in
more than one accident, and is indicted once by a
Palmer grand jury and indicted in the other instance
by an Anchorage grand jury; these are separate
judgments. And I'm not saying this could happen
frequently. But, frankly, I have to tell you charging
practices throughout the state vary greatly.
In some jurisdictions the prosecutor will charge a
person's cases all in one grand jury, whether these
cases are related or not. In other jurisdictions the
prosecutor will charge them in separate grand juries,
even if they seem to be related. And so the question
of whether there is a separate judgment, which
eliminates the prospect for concurrent sentencing, ...
the odds of that happening can vary widely depending
on where in the state you might be.
Number 1637
REPRESENTATIVE GARA asked for a synopsis of what would happen
under the proposed legislation for a different example, that of
a bar fight in which the defendant hits three people. Would
that result in three consecutive sentences and the judge would
have no discretion to cap the sentence [and/or] make it
partially concurrent?
MS. BRINK responded:
I think the reason this portion of the bill is kind of
confusing is, it tries to impose consecutive
sentencing in a wide variety of situations. The
example I was talking about was under proposed
subsection (a), where the mere existence of a separate
judgment can eliminate any chance of concurrent
sentencing. But as I understand it, ... I think the
earlier sections of the bill require fully consecutive
sentences for each separate crime. And so I think
under your example, yes, ... it would be a forced
consecutive sentence mandated.
Right now, particularly in cases like sex offense
cases or sex assault cases, where consecutive
sentencing is required, it doesn't have to be the full
amount of the consecutive sentence; there has to be
some consecutive time, but it's left up to the court's
... [discretion] how much is consecutive and how much
is concurrent.
... What I see is, ... [Section 14, subsection (c)(2)]
says that if there are two or more crimes under [AS]
11.41, which is your bar-fight scenario, ... a
consecutive active term of imprisonment shall be
imposed for at least the mandatory minimum term for
(indisc.) terms. So, in this action, it kind of
depends on the degree of injury suffered by those
people in your bar fight. So they have to at least
get the mandatory term or two years of active jail,
depending on the degree of the assault. ...
CHAIR McGUIRE remarked that she believes that "every life
deserves the respective sentence that comes with it."
Number 1784
MS. BRINK, turning to Section 21-23, said:
Sections 21-23 concern notice of defenses and experts,
and require the defense to give notice sooner than
under current law, and also, as Mr. McComas noted,
adopts a mandatory serious sanction of actual
preclusion of the witnesses testimony if there is
failure to timely notify the prosecution. And I have
to agree with Mr. McComas; my staff, we're involved in
litigation, trials, all the time, and it is the rare
case where ... we're not surprised with witness
statements, even our clients' statements, actual
physical evidence, [or] lineups in the middle of
trial.
And the case law is very well settled; when the
prosecutor makes an error like that, either through
negligence or inadvertence or inattention or even
deliberately, the normal remedy for a person in that
situation is simply to get a continuance, and get the
opportunity to deal with the new information and the
new evidence. And why is that the rule? Because the
court wants the jury to get all the information. The
court wants the evidence to be presented to the jury,
because a jury can't reach a fair decision and a
verdict if we're hiding stuff from them.
And this proposal, frankly, is to hide evidence from
the jury if either through neglect or "inadvertent"
... an attorney didn't get it together in time or
because they made a mistake; we would then preclude
the jury from hearing vital evidence in a case. And I
have to agree [with Mr. McComas], I don't think that
would pass constitutional muster because the whole
point of having a jury trial is for them to get all
the facts and evidence and reach their conclusions
about what happened and what the charge should be.
REPRESENTATIVE SAMUELS mentioned the case on Saint Paul Island
pertaining to the murder of the Coast Guard commander, and
remarked that it certainly wasn't fair to the family of the
victim to have to keep flying back and forth from Louisiana
because the trial date was altered at the last minute,
purportedly because the defense changed it's strategy.
Number 1881
MS. BRINK responded:
Well, I'm a little familiar [with] that Saint Paul
[Island] case and, frankly, I have to say that I
believe the error in that situation was on the part of
the prosecution. I think that there was sufficient
notice, so that travel could have been avoided. ... I
appreciate the fact that it's a very traumatic
experience to go through, and we try to give as much
notice as possible. And in that situation, I think
the travel could have been avoided
But ... I would like to address one other area that
you bring up. In fact, it is the duty of a defense
attorney to respond to the case as it proceeds and as
it develops, and sometimes, yes, there will be changes
in strategy or changes in witnesses. But, frankly,
that's part of trial. A prosecutor changes his
witnesses and strategy as he's going along, too,
depending on how the witness testimony develops: is
it necessary to call this witness, should we use this
other person, can we efficiently prosecute this case
without calling that person. ... Those kinds of
adjustments are made all the time, both by the
prosecution and the defense. And I appreciate that
everybody would like to keep on a timely schedule and
make sure that there aren't any surprises, and we try
to comply with the rules as best we can.
MS. BRINK, turning to Sections 24 and 25, said:
Section 24 ... [amends the Alaska Rules of Evidence
such that] evidence illegally obtained by the state
would be admissible in a trial. This overrules years
and years of jurisprudence. It's what people who
engage in this practice regularly call the
exclusionary rule. And it kind of runs like this: If
the police or the prosecution ... violate somebody's
rights [to] be free from unreasonable search and
seizure - they search a home without a warrant, they
frisk a person without probable cause, they invade
somebody's car with no good reason - or they get
someone to confess without advising them of their
Miranda rights, that's all illegally taken evidence.
Number 1992
MS. BRINK continued:
And the rules have developed in this country over the
last 200 years that that behavior will not be rewarded
by allowing the prosecution and the police to use
those pieces of evidence against someone who's accused
of a crime. The exclusionary rule is designed to
encourage police to engage in lawful practices and to
encourage people's rights to be respected. And so
[this is] a huge change, as Mr. Fink pointed out, once
again empowering the government at the expense of the
individual's rights. It is a huge change to all of a
sudden now condone illegal activity on the part of
police and prosecutors, and say, "Well, this illegal
evidence can come in, in the case in chief, if we
think the defendant or the accused is not testifying
truthfully." So, it's a huge sea change, and I don't
think it's a good idea.
The second section, Section 25, I'm sort of ambivalent
about. That amends [Alaska Rules of Evidence] Rule
609 to increase the opportunity to use prior
convictions of dishonesty from five years from date of
the conviction [to] within five years of the
unconditional discharge of the conviction. And so, if
you want to expand that time, I would just suggest to
you that that rule applies to both parties equally.
If you want to impeach somebody with a prior
conviction and you're going to extend the reach to ten
years rather than five years, you'll have as many
witnesses testifying for the defense ... [who] will
have impeachable convictions show up in their history
... as you would for the prosecutor. It just kind of
depends on how much information you want the jury to
know. Do you think it's important that a person was
convicted of a crime this long ago? Is that relevant
to whether they're telling the truth today or not?
It's hard to say.
Number 2048
MS. BRINK, turning to Section 26, said:
Section 26 ... seeks to amend the [Alaska Rules of
Evidence] to provide another exception to the hearsay
rule to ... [allow] statements [made] by an alleged
victim of domestic violence within the last 24 hours,
or [by] any other witness. Mr. McComas said it very
well; most hearsay exceptions have come about over the
years because it's been proven that the evidence
that's hearsay is really, generally kind of reliable:
business records, those kinds of things.
I have to say I would find ... the evidence in
domestic violence cases less reliable than almost any
other type of case. If you are going to carve out an
exception, this would not be the [type of case to do
it for]. Domestic violence cases are universally
running high with passion, emotion, and bias. And I
think it's even more important in those situations to
provide the actual witness so the jury can assess
whether or not that person's telling the truth ....
REPRESENTATIVE GARA asked Ms. Brink to comment on Section 27.
MS. BRINK said that Section 27 relates back to the provisions
regarding expert testimony. The court rule [currently requires]
that the state's expert be noticed 45 days before trial, and
that the defense's expert be noticed 30 days before trial. She
surmised that Section 27 would conform the court rule to the
"hard and fast exclusionary rule" proposed by other provisions
of HB 244.
CHAIR McGUIRE mentioned that there are several amendments, some
of which propose to delete Sections 1-5, 9-12, 16, and 17.
Number 2208
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), referring to the suggestion that the self-defense
provisions [Sections 1-5] be deleted, said that these provisions
are the law in other states and have been upheld by the U.S.
Supreme Court. He offered that these provisions are in direct
response to specific situations, which occurred primarily in
Anchorage and purportedly involved gang shootings, and noted
that these provisions provide an exception for self-defense in
one's own home. In the interest of expediency, however, he
relayed that it would be acceptable to the administration if
Sections 2-5, which relate to the defense of self-defense, were
deleted; Section 1, on the other hand, relates to the heat of
passion defense pertaining to first or second degree murder, and
should therefore be retained.
MR. GUANELI, in support of retaining Section 1 of the bill,
offered the following about a case that was heard in the Alaska
Supreme Court a number of years ago:
Someone ... had paid some money to buy some drugs.
The runner went to the house and disappeared, and
disappeared with the drug money. The person who paid
to get the drugs pounded on the door, broke in, put a
gun to the drug dealer's head, said, "Give me my money
back or give me the drugs." A struggle ensued, he
ended up killing the drug dealer, and the defense was
heat of passion: "I was so incensed, I was so
enraged, that my reason overcame me." And his
conviction was reversed because the jury wasn't
allowed to consider that heat of passion defense.
MR. GUANELI opined that one ought have the burden of proving
that one was so enflamed, so enraged, as to kill another person.
He likened it to the defenses of insanity and duress. Heat of
passion is significantly different than self-defense, he
remarked, and urged the committee to retain Section 1.
MR. GUANELI, on the issue of whether to delete Sections 9-12 and
17, the provisions regarding immunity, suggested that "secret
hearings" are occurring, during which information critical to
the prosecution is being discussed. He opined that this
situation is unfair to the state and to the public. In support
of keeping these provisions in the bill, he offered the
following about a case that occurred in Juneau.
TAPE 03-56, SIDE B
Number 2400
A couple of guys ..., over a $50 or $60 debt involving
marijuana, ... ended up killing somebody. They beat
him to death. It turned out that a witness ... had
some information about the case, and he got an
attorney and basically came to us and said, "I'd
really like to help you, but I'm a little bit worried
about my own exposure." And so, after pressing the
attorney a little bit, ... the attorney writes us a
letter and says, "My good faith belief about what my
client fears is, this guy came to him, broke into his
house, said, 'I know you've got a gun, give me your
gun,' ran out, did the killing, and came back and gave
the client the gun back." So the client was afraid he
was going to get accused of ... concealing evidence
....
MR. GUANELI said that the forgoing is an example of a witness
that wants to cooperate with the prosecution. He remarked,
however, that in the aforementioned "secret hearings," the
witness really doesn't want to cooperate with the prosecution
and so hides behind the Fifth Amendment. He mentioned what he
called a general maxim that says that the government is entitled
to every person's evidence; in other words, every one who has
information about a case is obligated to come forward and give
testimony. Hiding behind the Fifth Amendment in such a way that
the prosecution is deprived of the information it needs in order
to even know whether to grant immunity is really inappropriate,
he opined.
MR. GUANELI suggested that all these provisions do is require
that a person's attorney provide a good-faith statement
regarding what that person is seeking immunity for. Currently,
the prosecution gets no information. He asserted that by
granting transactional immunity, the prosecution faces the risk
that the person who is granted the immunity will simply confess
to the crime in an effort to protect the defendant; the result
of such a situation is that the person with the immunity won't
be prosecuted and the defendant will be acquitted, and so they
get away with the crime.
Number 2207
MR. GUANELI assured the committee that if the prosecution starts
prosecuting the people that cooperate, it will soon lose that
cooperation. He said:
If we believe that someone is only peripherally
involved in a murder, and if their attorney's good-
faith belief is that there is only peripheral
involvement, then we have no interest in (indisc. -
paper ripping); we want their testimony, we are going
to immunize that person, and we're going to get their
testimony. If it's something other than that, then I
think that we might not provide immunity for them, but
most people that we focus on, as wanting their
testimony, we have some good-faith belief for thinking
that they're not a principal actor. But we worry
about those cases [in which someone wants to] protect
the defendant in some way; they may be a relative,
they may be friend, they may be an associate in some
way, and we're worried about what would happen if we
[give] immunity completely in the dark.
MR. GUANELI, in response to a question, explained the difference
between transactional immunity and "use immunity": Under use
immunity, a prosecutor only has to tell the witness that
anything he/she says will not later be used to prosecute
him/her. Under transactional immunity, a witness can never be
prosecuted regarding anything he/she reveals, even if there is
independent evidence that he/she committed a particular crime.
He noted that the federal government grants use immunity, which
was what was given to Oliver North, and that the federal
government bears a heavy burden of proving that any testimony
for which use immunity was granted is not later used in any way
to prosecute the person who was given the use immunity.
MR. GUANELI reiterated his belief that the provisions of HB 244
require only that a witness's attorney provide a good-faith
statement regarding what the witness is seeking immunity for,
and offered that the state would still have a heavy burden of
showing that the information didn't lead to a future prosecution
of the witness. He posited that the provisions being discussed
are intended to craft a procedure that is in keeping with
Alaska's transactional immunity while still giving the
prosecution a minimal amount of information by which to form a
decision regarding whether to grant somebody immunity. In
response to another question, he relayed that most other states
grant use immunity, but a few other states grant transactional
immunity.
MR. GUANELI surmised that if, indeed, these proposed sections
are found to be unconstitutional - as predicted by previous
testifiers - prosecutors will be no worse off than they
currently are. The question is, does the legislature believe
that this is enough of a problem that it ought to try to craft a
solution. "We believe it is; ... it happens to us all the time,
and we believe that this is a solution that ... is designed to
work well and ... be constitutional," he added.
Number 1868
CHAIR McGUIRE referred to the language Section 8 is proposing to
delete: "no testimony or other information compelled under the
order, or information directly or indirectly derived from that
testimony or other information, may be used against the witness
in a criminal case". She asked why not keep that language in
and tinker with that language?
MR. GUANELI explained that the language being removed is from
the federal law, and that Alaska's court has ruled, via the
Gonzalez case, that the Alaska State Constitution provides a
broader protection. In other words, the court has struck down,
as unconstitutional, the language being deleted in Section 8,
which is intended to reflect Alaska case law, he added.
REPRESENTATIVE GARA asked whether Section 8 adopts use immunity.
MR. GUANELI said it does not, reiterating that the court has
ruled that use immunity is not sufficient under the Alaska State
Constitution. Section 8 crafts a procedure by which the
prosecution can obtain needed information about the type of
offense that the witness wants immunity for, so that immunity is
not being granted "in the dark."
REPRESENTATIVE GARA pointed out, however, that the language
Section 8 proposes to insert in statute does not appear to be an
accurate statement of transactional immunity.
MR. GUANELI suggested that Representative Gara's reading is not
correct; Section 8 is designed to be from the Gonzalez case, and
simply reflects what the [case] law is in Alaska regarding the
constitutional rule.
CHAIR McGUIRE asked why not simply insert a constitutional
amendment in the bill to provide for use immunity. Why create a
mechanism that is untested, particularly in light of the
Gonzalez case? She suggested that rather than changing several
statutes to allow the prosecution to interject itself in the
judge's chambers, the administration should find a simpler way
to achieve its goal. She opined that the current provisions in
the bill infringe on the judge's power, discretion, and ability
to communicate in private with an individual.
Number 1601
MR. GUANELI offered that it is the administration's preference
to try to achieve its goals through statute, rather than through
a constitutional amendment. He added: "Once you start going
down the road of amending the constitution to overturn judicial
decisions, there's really no end to that." He predicted that
there are other Fifth Amendment rulings and Fourth Amendment
rulings by Alaska's courts that prosecutors "would love to get
rid of."
CHAIR McGUIRE offered her belief that on this issue, if the
administration is determined to make such a fundamental change,
a constitutional amendment is needed. This isn't just a
technical change; use immunity and transaction immunity are "two
completely different animals," she remarked. In addition, a
constitutional amendment will allow voters an opportunity to
weigh in on the issue. Pondering how other states approach this
issue, she asked whether immunity is typically addressed via
statute or via constitution.
MR. GUANELI said that with respect to whether the type of
immunity granted is use immunity or transaction immunity, that
is probably a matter of judicial interpretation of a state's
constitution. He offered to provide, at the bill's next
hearing, more information regarding how states with
transactional immunity deal with the issue.
CHAIR McGUIRE said she wants to know where the concept proposed
in the bill originated. "How do we know this is going to work,"
and why go out on a limb if it's going to be thrown out anyway,
she asked, and indicated that she does not like that approach.
Going to court over this issue is a waste of people's time, she
opined, particularly if there is no precedent that such language
is going to work.
MR. GUANELI relayed that the procedure of accepting a proffer
from an attorney - a good-faith statement of what he/she
believes the client would say - does have precedent in the
federal government, and is currently used in the granting of
[federal] use immunity. He suggested that the proposed changes
are in response to the "secret hearings" that judges currently
hold in determining whether a witness has a valid privilege
against self-incrimination.
REPRESENTATIVE GARA asked that at the bill's next hearing, the
committee be provided with an excerpt from the Gonzalez case.
MR. GUANELI agreed to provide that information.
REPRESENTATIVE GARA said that his main problem with HB 244 is
that it includes "six months' worth of criminal law class." The
concepts encompassed in HB 244 are so varied and so complex, he
remarked, that he is concerned that he will be voting in an
uninformed manner.
CHAIR McGUIRE indicated that although she has made a commitment
to move the bill out of committee after deleting some of its
more controversial sections, it might not be a bad idea to work
on the bill over the interim.
[HB 244 was held over.]
ADJOURNMENT
Number 1195
The House Judiciary Standing Committee was recessed at 5:58 p.m.
to a call of the chair. [The meeting never was reconvened.]
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