04/05/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Alaska Rural Justice and Law Enforcement Commission | |
| HB325 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | HB 325 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 5, 2006
1:42 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Berta Gardner
Representative Ethan Berkowitz
COMMITTEE CALENDAR
OVERVIEW: ALASKA RURAL JUSTICE AND LAW ENFORCEMENT COMMISSION
- HEARD
HOUSE BILL NO. 325
"An Act relating to post-conviction DNA testing; and amending
Rule 35.1, Alaska Rules of Criminal Procedure."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 325
SHORT TITLE: POST-CONVICTION DNA TESTING
SPONSOR(S): REPRESENTATIVE(S) LEDOUX
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
03/22/06 (H) JUD AT 1:00 PM CAPITOL 120
03/22/06 (H) <Bill Hearing Postponed to 03/24/06>
03/24/06 (H) JUD AT 1:00 PM CAPITOL 120
03/24/06 (H) <Bill Hearing Postponed to 03/27/06>
03/27/06 (H) JUD AT 1:00 PM CAPITOL 120
03/27/06 (H) <Bill Hearing Postponed to 03/29/06>
03/29/06 (H) JUD AT 1:00 PM CAPITOL 120
03/29/06 (H) Scheduled But Not Heard
04/05/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DEBORAH M. SMITH, Acting U.S. Attorney
District of Alaska
United States Attorney's Office (USAO)
U.S. Department of Justice (DOJ);
Federal Co-Chair
Alaska Rural Justice and Law Enforcement Commission
Anchorage, Alaska
POSITION STATEMENT: Assisted with the overview regarding the
Alaska Rural Justice and Law Enforcement Commission.
DAVID W. MARQUEZ, Attorney General
Department of Law (DOL);
State Co-Chair
Alaska Rural Justice and Law Enforcement Commission
Juneau, Alaska
POSITION STATEMENT: Assisted with the overview regarding the
Alaska Rural Justice and Law Enforcement Commission.
WILLIAM TANDESKE, Commissioner
Department of Public Safety (DPS);
Commissioner
Alaska Rural Justice and Law Enforcement Commission
Juneau, Alaska
POSITION STATEMENT: Assisted with the overview regarding the
Alaska Rural Justice and Law Enforcement Commission.
WILSON JUSTIN, Executive Vice President and Acting President
Mount Sanford Tribal Consortium (MSTC);
Commissioner
Tribal Representative
Alaska Rural Justice and Law Enforcement Commission
Slana, Alaska
POSITION STATEMENT: Assisted with the overview regarding the
Alaska Rural Justice and Law Enforcement Commission.
REPRESENTATIVE GABRIELLE LeDOUX
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 325.
KIMBERLY WALLACE, Staff
to Representative Gabrielle LeDoux
House Special Committee on Fisheries
Alaska State Legislature
POSITION STATEMENT: Presented HB 325 on behalf of the sponsor,
Representative LeDoux.
CLIFF STONE, Special Assistant
Office of the Commissioner
Department of Public Safety (DPS)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 325.
STEPHEN SALOOM, Policy Director
Innocence Project
New York, New York
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 325.
HILLIARD H. "TRES" LEWIS, III, Private Investigator
Mendenhall Investigations, Inc.
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 325.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 325, expressed
concerns and responded to questions.
ACTION NARRATIVE
REPRESENTATIVE TOM ANDERSON, acting as chair, called the House
Judiciary Standing Committee meeting to order at 1:42:25 PM.
Representatives Anderson, Coghill, Gruenberg, Wilson, and Kott
were present at the call to order. Representatives Gara and
McGuire arrived as the meeting was in progress. Representative
Berkowitz and Gardner were also in attendance.
^Overview(s)
^Alaska Rural Justice and Law Enforcement Commission
1:42:35 PM
REPRESENTATIVE ANDERSON announced that the first order of
business would be the overview regarding the Alaska Rural
Justice and Law Enforcement Commission ("the Commission").
1:45:12 PM
DEBORAH M. SMITH, Acting U.S. Attorney, District of Alaska,
United States Attorney's Office (USAO), U.S. Department of
Justice (DOJ); Federal Co-Chair, Alaska Rural Justice and Law
Enforcement Commission, noted that committee members have copies
of the Alaska Rural Justice and Law Enforcement Commission's
2006 report entitled, "Initial Report and Recommendations", and
that the Alaska Native Justice Center has provided the
Commission with a great deal of logistical support. In
conjunction with a PowerPoint presentation, she provided a brief
history of the Commission; outlined the makeup of the Commission
and its staff; and explained that the Commission's mission was
to study the following topics as they related to rural Alaska:
law enforcement, judicial services, alcohol importation and
interdiction, and domestic violence and child abuse.
MS. SMITH relayed that to accomplish this mission, the
Commission established four working groups made up of
professionals, experts, and officials working in fields related
to the four topics; held meetings and public hearings;
synthesized the input garnered from these meetings and hearings;
and formulated the final recommendations outlined in the
aforementioned report. She noted that the PowerPoint
presentation provided details regarding the make up of the
working groups, where the hearings were held, and which entities
and individuals provided input.
1:50:33 PM
DAVID W. MARQUEZ, Attorney General, Department of Law (DOL);
State Co-Chair, Alaska Rural Justice and Law Enforcement
Commission, also referring to the PowerPoint presentation,
relayed that the aforementioned working groups created over 100
options, and that those options the Commission adopted were
subsequently organized into nine general recommendations:
engage in more partnering and collaboration; make systemic
changes to improve rural law enforcement; enlarge the use of
community-based solutions; broaden the use of prevention
approaches; broaden the use of therapeutic approaches; increase
employment of rural residents in law enforcement and judicial
services; build additional capacity; increase access to judicial
services; and expand the use of new technologies.
ATTORNEY GENERAL MARQUEZ then detailed, as did the PowerPoint
presentation, what each of the nine general recommendations
might entail. For example, referring to the recommendation to
engage in more partnering and collaboration, he mentioned that
this could include, among other things, developing a number of
agreements to better coordinate law enforcement and judicial
services in rural Alaska such as voluntary memorandums of
understanding (MOUs) between tribes and the state regarding
coordination and integration of child protection and domestic
violence (DV) protective services; a state-tribal Indian Child
Welfare Act (ICWA) agreement; and tribal-state partnerships on
juvenile justice, which might result in Division of Juvenile
Justice (DJJ) referral mechanisms.
ATTORNEY GENERAL MARQUEZ, referring to the recommendation to
make systemic changes to improve rural law enforcement,
mentioned that this could include the expansion of police and
public safety training so that further work can be done toward
cooperation in alcohol interdiction, and the development of a
statewide, uniform, and tiered system of certification and
training for police and public safety officers so as to provide
a reasonable opportunity for advancement that could culminate in
obtaining the qualifications for full police certification by
the Alaska Police Standards Council (APSC).
ATTORNEY GENERAL MARQUEZ mentioned that the state has made
efforts to fund new state trooper and prosecutor positions; to
establish a rural prosecution support team and domestic violence
fatality review teams; to appoint a "cold-case" prosecutor; and
to possibly implement a pilot project for village safety aides
who would work with village health aides. He then relayed that
the state has made efforts to address alcohol importation and
interdiction by implementing legislation pertaining to local
option and bootlegging laws and by discussing possible solutions
with the U.S. Postal Service regarding increases in investigator
staffing; he offered statistics about crimes involving alcohol
consumption and the recent prosecution of bootlegging
operations.
ATTORNEY GENERAL MARQUEZ, referring to the recommendation to
enlarge the use of community-based solutions, relayed that this
could include amending state statute to allow the DJJ to
delegate its authority to tribes in order that they may share
resources with respect to tribal juvenile offenders; amending
state statute to permit tribes to participate in juvenile
proceedings and delinquency treatment; expanding funding to
nonprofit organizations and rural communities so that they may
develop restorative justice re-entry programs and new programs
to increase prevention, intervention, and treatment of domestic
violence and child abuse; seeking alternatives to out-of-state
prisons; and establishing alcohol distribution centers in "damp"
hub communities.
ATTORNEY GENERAL MARQUEZ, referring to the recommendation to
broaden the use of prevention approaches, mentioned that this
could include expanding culturally appropriate programs to
reduce the demand for alcohol in rural Alaska, link youth with
adults in healthy activities, and provide more information to
schools for first-time misdemeanor alcohol/drug related
offenders; expanding education, prevention, and early
intervention programs targeting domestic violence and child
abuse; and developing new prevention curricula to be implemented
in grades K-8.
2:00:16 PM
ATTORNEY GENERAL MARQUEZ, referring to the recommendation to
broaden the use of therapeutic approaches, relayed that this
could include expanding alcohol/drug abuse treatment programs in
rural Alaska, with a system of longer-term residential care in
hub communities matched with a network of aftercare services in
rural villages; strengthening substance abuse, mental health,
and dual diagnosis treatment options; strengthening therapeutic
courts and group homes for children in need of aid; and changing
regulations to allow close relatives caring for children in need
of aid to receive the same level of financial reimbursement that
non-relatives now receive.
ATTORNEY GENERAL MARQUEZ, referring to the recommendation to
increase employment of rural residents in law enforcement and
judicial services' fields, indicated that this could include
implementing a focused recruitment effort to bring more Alaska
Natives - and other rural Alaskans - into the correctional, law
enforcement, and public safety workforce; increasing the
training and utilization of Village Public Safety Officers as
probation officers in the villages; and contracting with tribes
to oversee community service work.
ATTORNEY GENERAL MARQUEZ, referring to the recommendation to
build additional [law enforcement] capacity [to alleviate the
current lack of supporting infrastructure], relayed that this
could include improving and expanding housing for police and
public safety officers; increasing availability of appropriate
intra-community transportation; [constructing] more law
enforcement offices and holding facilities in rural Alaska;
improving law enforcement equipment; improving and expanding
training; and developing a standardized statewide data system to
document and monitor law enforcement investigations in rural
Alaska. One possible method of accomplishing some of these
goals, a method that the Department of Public Safety (DPS) is
already starting to implement in a pilot project, is to
construct multipurpose facilities with an apartment, an office,
and a holding cell for the troopers in larger, underserved
village locations, thereby allowing troopers to be reassigned to
these new "sub-hub" posts on a rotating schedule; this concept
exemplifies community-oriented policing and has many benefits,
including reducing response times and providing a significantly
enhanced law enforcement presence.
ATTORNEY GENERAL MARQUEZ, referring to the recommendation to
increase access to judicial services, indicated that this could
include increasing funding for civil legal assistance pertaining
to domestic violence and child abuse situations; asking the
federal government to restore funding opportunities for tribal
courts located within municipal boundaries; increasing
videoconferencing capabilities and the use of tribal courts; and
providing training and technical assistance to judges and
support staff in the Alaska Court System and in tribal courts to
inform and instruct participants in both systems to be aware of
and value the cultural differences in rural Alaska.
2:05:50 PM
ATTORNEY GENERAL MARQUEZ, referring to the recommendation to
expand the use of new technologies, mentioned that this could
include increasing access to telecommunication networks;
changing current regulations to allow law enforcement officers
and court officers to utilize "already-in-place" bandwidths;
exploring the use of new electronic monitoring technology for
rural Alaskan probationers; and having the Alcohol Beverage
Control Board ("ABC Board") develop a statewide database for all
alcohol written orders for the aforementioned new community
alcohol distribution centers.
ATTORNEY GENERAL MARQUEZ, in conclusion, asked for the
legislature's support with regard to funding and any necessary
legislative changes with which to institute the aforementioned
recommendations, spoke of pending legislation and the
Commission's support of that legislation, and offered the
following additional suggestions for changes to current law:
change the definition of alcohol manufacture and expand the
forfeiture provisions; ban written order sales to dry towns; ban
shipping plastic by air; and change the regulatory definition of
a village from 1,000 individuals to 1,500 individuals.
2:09:29 PM
MS. SMITH relayed that the Commission has asked Congress to
extend the Commission's life via continued funding, and is
seeking permission from the U.S. Attorney General to expand its
membership to also include the commissioner of the Department of
Health and Social Services (DHSS), a representative of Alaska
Native healthcare providers, and a non-voting state court
representative who would be appointed by the chief justice of
the Alaska Supreme Court. Furthermore, the Commission will
continue the dialog among justice stakeholders, conduct
additional research, monitor the development and implementation
of the aforementioned recommendations, and evaluate the impact
of any new and expanded activities.
MS. SMITH said that the Commission recognizes that in order to
meet its objectives it must advocate at state and federal
levels, educate and obtain buy-in from stakeholders and the
public; advocate for expansion of innovative prevention, early
intervention, and treatment programs; increase interest in
recruitment, training and hiring of qualified Alaska Natives in
the law enforcement and justice fields; further define the role
of the Commission as necessary; and seek solutions, whenever
possible, at the local level.
REPRESENTATIVE WILSON asked about the impact of changing the
regulatory definition of a village from 1,000 to 1,500
individuals.
REPRESENTATIVE ANDERSON expressed appreciation for the detail of
the report and characterized it as a critical component.
2:14:30 PM
WILLIAM TANDESKE, Commissioner, Department of Public Safety
(DPS); Commissioner, Alaska Rural Justice and Law Enforcement
Commission, in response to Representative Wilson, offered his
understanding that at present only Hooper Bay would be impacted;
the rationale behind the requested change is that [the
administration] doesn't want to start treating a community
differently solely because of a population increase. Noting
that he makes a distinction between public safety and law
enforcement, he offered his belief that part of the
aforementioned solutions really pertains more to public safety
than to law enforcement; for example, there are many public
safety activities that could improve the quality of life for
rural residents and reduce incidences of suicide and accidental
death. Of the recommendations involving collaboration with the
U.S. Postal Service, he acknowledged that the DPS doesn't yet
appear to have a very willing partner, though some steps are
being taken.
COMMISSIONER TANDESKE referred to the aforementioned "sub-hub"
[housing] pilot project, and relayed that this could involve
[using preexisting] permanent structures or seeking federal
funding to build facilities. He then mentioned some of the
steps being taken, what the scheduling rotations might involve,
and some of the locations being considered. He assured the
committee that the DPS is seeking to become more effective
without increasing costs, and mentioned federal appropriations,
tiered training, continuity, and progression.
REPRESENTATIVE ANDERSON asked how the legislature might help at
the state level.
COMMISSIONER TANDESKE mentioned the Village Public Safety
Officer (VPSO) program, rural public safety as a whole, a
possible pilot project to establish some form of public safety
personnel in villages, and seeking latitude from federal
authorities to invest federal funds in rural communities for
public safety efforts that may not necessarily involve VPSOs.
He relayed that the DPS would like to stay within the boundaries
of state law even though there are some gray areas when dealing
with tribes.
2:23:54 PM
WILSON JUSTIN, Executive Vice President and Acting President,
Mount Sanford Tribal Consortium (MSTC); Commissioner, Tribal
Representative, Alaska Rural Justice and Law Enforcement
Commission, reiterated comments made by Ms. Smith and further
detailed by the PowerPoint presentation, offered his belief that
no one was left out of the Commission's process, and relayed
that the topic of tribal jurisdiction and sovereignty was
specifically and intentionally left unaddressed.
[Representative Anderson turned the gavel over to Chair
McGuire.]
MR. JUSTIN remarked that the Commission, by and large, focused
on public safety issues and prevention issues; the prime concern
in Alaskan communities, whether rural or not, is alcohol and
substance abuse, because all other issues are tied to that. He
expressed agreement with comments made by Commissioner Tandeske,
but noted that the topic of a safety aide program was not
actually discussed by the Commission yet would be easy to
support as a pilot project. A critical component of any pilot
program is that it fit the communities it is intended to serve.
He remarked that a tremendous amount of money is returned from
rural communities to Anchorage and Fairbanks, and thus tribal
entities, organizations, and nonprofits are in essence pre-
paying the cost of the aforementioned recommended programs. The
issues being considered by the Commission can be viewed from an
economic standpoint, a political standpoint, a social
standpoint, a public safety standpoint, and a law enforcement
standpoint, and this can result in outcomes not occurring
automatically, particularly when long-term solutions are being
sought; nonetheless, he opined, the Commission did an extremely
good job of producing recommendations that will, in general, fit
the times that Alaska is facing.
2:34:59 PM
REPRESENTATIVE WILSON commended the Commission for its focus on
prevention.
REPRESENTATIVE GARA expressed appreciation for the Commission's
work, but remarked on the lack of available treatment services
statewide, possibly due to a lack of public education regarding
the need for funding such services.
MR. JUSTIN pointed out that a restorative justice approach
focuses on teaching a community how to make amends with itself
and how to heal itself and its citizens, and should therefore be
viewed as a valuable component of any programs that are put in
place.
REPRESENTATIVE COGHILL expressed appreciation for the
Commission's approach.
COMMISSIONER TANDESKE, in response to a question, relayed that
although the DPS is not mandated to do so, it has been training
VPSOs in "hub locations," and is also trying to be flexible with
the aforementioned pilot projects in order to see what works.
MR. JUSTIN, in response to a question, noted that in Kake, for
example, [law enforcement officials] work closely with the
magistrate and train in aspects of healing as part of a
restorative justice approach; this has had a high rate of
success in reducing incidents of suicide and domestic violence.
2:45:17 PM
MS. SMITH, at the request of Representative Gruenberg, engaged
in a discussion with members regarding the role of the U.S.
Attorney's Office in Alaska and how the legislature might best
assist the DOJ with its goals regarding antiterrorism, violence
reduction, prosecutions of firearm- and gang-related crimes,
[prosecution] of child enticement and child sexual abuse crimes,
environmental issues, and drug prosecutions.
HB 325 - POST-CONVICTION DNA TESTING
3:01:13 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 325, "An Act relating to post-conviction DNA
testing; and amending Rule 35.1, Alaska Rules of Criminal
Procedure."
The committee took an at-ease from 3:02 p.m. to 3:04 p.m.
REPRESENTATIVE GABRIELLE LeDOUX, Alaska State Legislature,
sponsor of HB 325, relayed that her aide, Kimberly Wallace,
would introduce the bill.
KIMBERLY WALLACE, Staff to Representative Gabrielle LeDoux,
House Special Committee on Fisheries, Alaska State Legislature,
informed the committee that a committee substitute for HB 325
had been prepared.
3:05:37 PM
REPRESENTATIVE COGHILL moved to adopt the proposed committee
substitute (CS) for HB 325, Version 24-LS1222\I,
Mischel/Luckhaupt, 4/1/06, as the work draft. There being no
objection, Version I was before the committee.
3:05:51 PM
MS. WALLACE paraphrased from her written testimony, which read
in part [original punctuation along with some formatting changes
provided]:
Currently, 40 other states provide convicted persons
access to DNA testing. The handout before you
prepared by Legislative Research, dated February 1,
2006, shows a sample of states that have adopted
legislation pertaining to post-conviction DNA testing
within the past 5-6 years.
The Innocence Project states that since 1989, over 170
people imprisoned in the U.S. have been proven
innocent through post-conviction DNA testing.
The intent of HB 325, is to improve the Alaska
Criminal Justice system for all Alaskans by providing
a statutory right to DNA testing.
Specifically, this act establishes a procedure for
application for DNA testing and the appointment of
counsel. This legislation can help free an innocent
person and let law enforcement and the public know
that a guilty and dangerous person is still at large.
One of the handouts in your committee packet is an
article from the Ketchikan, "Stories in the News",
dated March 6, 2006, by Representative Anderson. In
the last paragraph, Representative Anderson states
that one of his top priorities as a State Legislator
is expansion of the DNA database. On page 4 of
version I of HB 325, lines 9-11, the testing
laboratory is ordered to make the DNA available to the
DNA identification registration system and to any
other law enforcement DNA databases.
Our office has collaborated with the Department of
Public Safety, the Department of Law, the Innocence
Project and members of this committee to make HB 325 a
better bill.
I'd like to direct your attention to the format and
content changes to HB 325, as outlined in the memo to
the committee members from Representative LeDoux,
dated April 4th, 2006.
In conclusion, I'd like to mention the Scientific
American Mind article that was also included in your
packet. On page 26, in the bottom left-hand column,
the article states that "Typically 20 to 25 percent of
DNA exonerations had false confessions in evidence."
This begs the question, "Why would anyone admit to
something they haven't done?" The article continues
on page 30 to note that psychologists categorize false
confessions into three groups:
1) Voluntary false confessions
2) Compliant false confessions
3) Internalized false confessions
There have been cases where no physical evidence has
linked a person to a crime, but due to a confession,
they have been charged and convicted and even
sometimes executed for a crime they did not commit.
If HB 325 can help just one person prove their
innocence, and the real perpetrator to be identified
by DNA testing, then we will have achieved what we set
out to do.
Thank you again for the opportunity to testify before
you today. I know there are others who wish to
testify on-line and in the audience. This concludes
my presentation.
3:09:18 PM
CLIFF STONE, Special Assistant, Office of the Commissioner,
Department of Public Safety (DPS), relayed that the department
[did have] a concern with [the original language of] proposed AS
12.72.230 - located on page 3 - because the drafter
inadvertently stated that the deoxyribonucleic acid (DNA)
testing itself would be performed at a law enforcement or
correctional facility when, in fact, it's only the collection of
samples for DNA testing that would be performed at these
facilities. He noted that the language in proposed AS 12.72.240
and proposed AS 12.72.250 refers to the contracted, accredited
laboratories where the DNA is actually tested. In response to a
question from Chair McGuire, he said he is comfortable with the
language currently in Version I.
REPRESENTATIVE GRUENBERG offered his understanding that the DNA
collection would be performed at the correctional or law
enforcement facilities and the testing done elsewhere. He then
referred to [page 3], line 23, and suggested that using the word
"done" instead of the word "performed" would more accurately
describe the DNA sample collection process.
MR. STONE agreed. In response to further questions, he
explained that the only other laboratory approved by the DPS to
process DNA [samples] is a Washington State accredited
laboratory, and suggested that someone else might be better able
to answer questions regarding payment.
3:13:28 PM
STEPHEN SALOOM, Policy Director, Innocence Project, expressed
his thanks to those involved in sponsoring and hearing the bill.
He highlighted that court review of DNA evidence has proven the
innocence 175 people incarcerated for serious crimes and that
freeing [those falsely accused] has allowed the pursuit of the
actual perpetrators of those crimes. He referred to
Representative Anderson's work and support of using DNA sampling
to "enhance the accuracy and effectiveness of the criminal
justice system," and opined that [HB 325] would offer the same
opportunity. He relayed that President George W. Bush; U.S.
Senator Frist, President of the Senate; and U.S. Representative
Hastert, Speaker of the House, also demonstrated their support
of post-conviction DNA testing through passage of the
congressional Justice for All Act of 2004, [H.R. 5107], which
[provides financial incentives to those states] that allow the
testing.
MR. SALOOM said, "The Innocence Project is extremely pleased to
know that Alaska is considering legislation to join the other 40
states that have created statutory avenue for consideration of
DNA evidence after a conviction." He expressed his belief that
such legislation ensures public confidence in criminal
conviction, public safety, and justice itself. No one benefits
when an innocent person is convicted of a crime - not the
victim, the police, the prosecutor, the legal system, or the
public. The only person who wins is the real perpetrator who's
protected from prosecution by the mistaken focus on an innocent
person; HB 325 is a fantastic step towards providing exactly the
justice that Alaska deserves and that is being adopted around
the country, he remarked.
MR. SALOOM relayed, however, that whereas the Innocence Project
endorses this bill, there is concern regarding the language used
on page 4, lines 13-14, which says:
(1) "actual innocence" means clear and convincing
evidence such that no reasonable juror would have
convicted the defendant;
MR. SALOOM opined that this provision could provide "a fatal
flaw" to the bill, and recommended that it be changed to say,
"'actual innocence' means that no reasonable jury would have
convicted the defendant". However, he characterized even this
suggested change as a "slight compromise." He relayed that most
of the other states use a more ideal standard which takes into
account that a jury, within "reasonable probability," might have
provided a different verdict had they been able to consider
[DNA] evidence. He explained that the issue is not about
setting someone free but rather whether to test evidence that
might then indicate that either a new trial should be granted or
some other form of release be considered.
3:19:09 PM
REPRESENTATIVE GRUENBERG sought confirmation that Mr. Saloom was
suggesting that the words, "clear and convincing evidence" be
deleted from page 4, line 13.
MR. SALOOM concurred, and referred to the first mention of
"actual innocence" found in proposed AS 12.72.210, which says in
part:
A court may not order DNA testing unless the
petitioner shows, by a preponderance of the evidence,
that
(1) favorable results of the DNA testing could
demonstrate the petitioner's actual innocence;
MR. SALOOM explained that "preponderance" already sets one
standard and so adding another standard of "clear and convincing
evidence" would not be [ideal].
REPRESENTATIVE GRUENBERG asked why "preponderance of the
evidence" should be used as the standard.
MR. SALOOM relayed that the Innocence Project believes that
"preponderance of the evidence" is the best standard to use at
"this" point. He referred to the aforementioned 175 DNA
exonerations and noted that a jury had already found those
people guilty beyond a reasonable doubt on all elements of the
crime. He explained that once new evidence is obtained [through
DNA testing], it is possible [though unintentional] to over-
estimate the other, previously considered evidence.
REPRESENTATIVE GRUENBERG opined that this issue should be
considered further.
3:26:06 PM
HILLIARD H. "TRES" LEWIS, III, Private Investigator, Mendenhall
Investigations, Inc., provided some historical background of DNA
testing in an effort to explain the importance of HB 325. He
relayed that much of the collected evidence - such as a hair
without a root from an arm - is not suitable for any kind of
testing other than for mitochondrial DNA, which is DNA through
the mother's side. He sited a former case of his where the
individual was convicted though might not have been had this
statute and mitochondrial DNA testing been available. He then
referred to the earlier discussion of the dual standard [present
in Version I] and opined that the "preponderance of the
evidence" standard is more appropriate.
MR. LEWIS relayed that there are still hurdles convicted
individuals must face before the biological samples can be
tested, and that a somewhat lower standard would be appropriate
in providing those convicted with the opportunity to prove their
innocence through the DNA testing process. In researching test
prices, he said he found the costs to be anywhere from $125 to
$1,500 - with some tests going so far as to determine the eye
color of the individual from which the biological sample
originated. He expressed his belief that the state should
consider these costs to be insignificant [compared to the
benefit provided].
REPRESENTATIVE COGHILL asked Mr. Lewis whether he felt the
science of DNA testing has become more reliable or whether
bigger questions have simply been raised.
MR. LEWIS explained that advances in DNA testing have been made
from the first-time testing through Restriction Fragment Length
Polymorphisms (RFLP) - DNA fingerprinting - to Polymerase Chain
Reaction (PCR), which now tests up to 13 positions of the DNA.
He opined that DNA testing is becoming more discrete, more
precise. He referred to the science of relying on matching the
lead content in bullets to determine whether someone was guilty
or not - a science since determined to be unreliable by the
National Academy of Science and no longer used by the Federal
Bureau of Investigation (FBI). He expressed his belief that
"the science involved in the early development of DNA testing
was very fundamentally sound." Furthermore, he opined, DNA
testing is reliable for both the conviction as well as the
release of the innocent and has become more important in
determining "who was present and who was not present [at the
crime scene]."
3:34:21 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
informed the committee that whereas the [department] agrees with
Representative LeDoux that this is an important issue and bill,
the DOL still has serious reservations about the substantive
provisions of the bill in its present form. In noting that the
bill would establish circumstances where a person convicted of a
crime could obtain post-conviction DNA testing with the goal of
undermining the conviction, she relayed that two important
principles were involved. The first, she explained, deals with
the importance of the finality of criminal convictions when the
person asking for this testing was convicted by a jury "beyond a
reasonable doubt," had the automatic right to an appeal, and had
the conviction affirmed following the appeal.
MS. CARPENETI explained that the second principle pertains to
the victim of a crime who is trying to put closure on the
experience and move on. She informed the committee that the
Alaska State Constitution now gives victims of a crime the right
to timely disposition of the case following the arrest of the
defendant, and therefore reopening the case for post-conviction
procedures is hard on victims. Furthermore, she highlighted
that the U.S. Supreme Court has found that finality in criminal
convictions is essential to the operation of the criminal
justice system because without finality, criminal law is
deprived of much of its deterrent effect.
MS. CARPENETI, in noting that there are rare cases of truly
innocent persons being wrongly convicted, posed the question of
how the statute should be written to catch the truly innocent
person without allowing a [convicted] defendant who should be
serving his/her time from bringing repetitive requests for DNA
[testing]. She also said that the "burden of proof" [in Version
I] is not clear and that [the department's] position, unlike
that of the Innocence Project, is that a person should prove, by
clear and convincing evidence, that post-conviction testing is
appropriate.
REPRESENTATIVE GRUENBERG opined that there are two aspects to
"burden of proof": the burden of going forward, which pertains
to "who carries it," and the burden of persuasion, which refers
to the level at which it must be proved. He said that although
he recognizes the importance of not having a victim repeat the
court experience, his belief is that this is far less important
than determining whether someone is guilty or innocent.
MS. CARPENETI reiterated her earlier comments regarding those
who've been convicted and said that at a certain point, one has
to say that a person has had his/her chances [to prove
innocence], and so if he/she wants to challenge a perfectly
valid conviction, then he/she ought to bear a pretty high burden
of proof to show that it's appropriate to challenge the
conviction at that point in time. She highlighted that current
Alaska statutes require "clear and convincing evidence" as the
burden of proof for factual matters for all other post-
conviction release cases, and therefore this should apply
equally to those petitioning for DNA testing, which is merely
another form of post-conviction release case.
3:40:42 PM
REPRESENTATIVE GRUENBERG referred to language on page 3, lines
6-10 - proposed AS 12.72.210(3) - which read in part:
(3) conclusive DNA test results were not
available before the petitioner's conviction, and the
petitioner did not secure DNA testing before the
petitioner's conviction because DNA testing was not
reasonably available or for reasons that constitute
justifiable excuse, ineffective assistance of counsel,
or excusable neglect;
REPRESENTATIVE GRUENBERG suggested that this might be sufficient
justification for not requiring "clear and convincing evidence."
He expressed his belief that if DNA testing was not available,
then a "preponderance of the evidence" should be sufficient.
MS. CARPENETI remarked that it is difficult to discuss these
situations in a vacuum, and noted that there were very few cases
in Alaska for which [DNA testing] was not available and this
might be due to the fact that Alaska is a fairly new state. She
highlighted that many of those convicted submit applications
requesting different or more sophisticated DNA testing than was
available at the time of their conviction or they claim that
their attorneys did not ask for the testing at the time of the
trial when in fact there may have been a very good reason for
not doing so.
REPRESENTATIVE GRUENBERG said such latter instances might come
under the heading of "ineffective assistance of counsel," which
is another matter.
MS. CARPENETI agreed.
3:42:46 PM
CHAIR McGUIRE announced that HB 325 would be assigned to a
subcommittee made up of Representatives Gruenberg, Anderson, and
Kott, with Representative Kott being chair of the subcommittee.
REPRESENTATIVE GRUENBERG, referring to page 3, noted that
language on line 6 says, "results were not available", whereas
language on line 8 says, "not reasonably available."
MS. CARPENETI agreed that this difference in language raises the
issue of clarity, and relayed she would provide the subcommittee
with a list of anything else in the bill that raises that same
issue.
REPRESENTATIVE GRUENBERG then referred to page 3, lines 25-29,
regarding payment of the cost, and requested that Mr. Saloom be
available to provide the subcommittee with input regarding the
language New York used in addressing this topic.
MS. CARPENETI relayed that one of the DOL's suggestions
incorporated into Version I was the suggestion requiring that
applicants for post-conviction DNA testing submit an affidavit
swearing that they are "factually innocent" of the crimes for
which they were convicted as well as of any lesser included
offenses.
REPRESENTATIVE GRUENBERG opined that this process should provide
for additional penalties to [be added to existing sentences] if
applicants are found guilty of perjury.
MS. CARPENETI remarked that there ought to be some risk
associated with filling out the affidavits. She explained that
the purpose for wanting an affidavit of factual innocence is to
have on record that a defendant is claiming true, "actual
innocence." She then noted that the Alaska Court of Appeals
case, Osborne v. State, provides a good example of a defendant
who should not be allowed post-conviction DNA testing, someone
who at the time of the hearing admitted, both verbally and in
writing, to participating in the crime. Because of those
admissions, she relayed, the DOL's belief is that the defendant
should not be allowed post-conviction DNA testing. She said she
is aware of the belief held by the Innocence Project that
factually innocent people do, under some circumstances, confess
guilt; however, under those circumstances, there should be no
reason why those convicted should not be willing to make an
affidavit claiming they are factually innocent of the crime and
explain why their prior admissions of guilt should not be
believed.
3:53:06 PM
MR. SALOOM interjected to opine that the term "factual
innocence" raises a separate issue than does the term "factually
innocent of that or any lesser included crime."
REPRESENTATIVE GRUENBERG returned attention to the language on
page 4, lines 13-14, referring to "would have convicted the
defendant" and suggested that the subcommittee draft more
specific language such as, "would have convicted the defendant
of the crime for which the DNA sample is sought."
CHAIR McGUIRE concurred, and relayed her understanding of the
challenges the DOL faces on this issue. She noted that [the
DOL] also suggests that the bill include language requiring a
defendant's attorney to submit an affidavit explaining his/her
reasons for the particular "approach to DNA testing [chosen] at
the trial level." She again referred to the Osborne case as an
example, and surmised that the defendant's attorney made the
tactical decision to not pursue "more sophisticated DNA testing
at trial," even though it was available at that time, so as to
not further implicate [his] client.
REPRESENTATIVE GRUENBERG remarked that all of the circumstances
[of a case] should be known. He suggested that [Ms. Carpeneti]
and Mr. Saloom each provide [the subcommittee] with more
[information] on this issue so that both sides are represented.
MR. SALOOM agreed to do so.
MS. CARPENETI relayed that the biggest concern [the DOL] has
with Version I pertains to the language of proposed AS 12.2.210
that reads:
(1) favorable results of the DNA testing could
demonstrate the petitioner's actual innocence;
MS. CARPENETI opined that the meaning of "could demonstrate" is
not clear enough because [the DOL] believes that the petitioner
requesting DNA testing should have to "conclusively prove" that
he/she is innocent.
3:57:24 PM
REPRESENTATIVE COGHILL commented that changing the wording to
"will [conclusively prove a person's innocence]" might be too
"conclusive the other way." He suggested possibly "ratcheting
up" [the standard to] "preponderance of the evidence." He then
referred to the language on page 3, line 6, regarding test
results not being available and opined that this could be a
"technical snafu" as well.
REPRESENTATIVE GRUENBERG, referring to page 3, line 1, said he
might support the word "could" because ultimately at trial, the
prosecution has the burden of proving a fact beyond a reasonable
doubt, yet [language in the bill] pertains to a civil action,
and therefore the burden of persuasion shifts to the defendant
to prove a fact by a preponderance of the evidence.
MS. CARPENETI concluded by saying that the DOL's stand is that
the applicant for post-conviction testing should exercise due
diligence in bringing forward his/her claim.
CHAIR McGUIRE concurred.
REPRESENTATIVE GRUENBERG sought confirmation regarding whether
Alaska Rules of Civil Procedure Rule 35(b)(1) already contains a
due diligence standard.
MS. CARPENETI explained that there are existing statutes that
address "due diligence" and specify other requirements and
exceptions regarding post-conviction requests (PCR).
CHAIR McGUIRE said that it is in everybody's interest to have
certainty one way or the other.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 325, reiterated that HB
325 [Version I] has been assigned to a subcommittee, and
remarked on possibly hearing the bill again next week.
ADJOURNMENT
4:03:10 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:03 p.m.
| Document Name | Date/Time | Subjects |
|---|