Legislature(1995 - 1996)

06/30/1995 09:00 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   SENATE JUDICIARY COMMITTEE                                  
                         June 30, 1995                                         
                           9:00 a.m.                                           
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 Senator Al Adams                                                              
 Senator Johnny Ellis                                                          
                                                                               
  ALSO IN ATTENDANCE                                                           
                                                                               
 Senator Loren Leman                                                           
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 OVERSIGHT HEARING:  POLICIES REGARDING CHARGE BARGAINING                      
                                                                               
    WITNESS REGISTER                                                           
                                                                               
 Laurie Otto, Deputy Attorney General                                          
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
                                                                               
 Shannon D. Hanley, Chief, Assistant District Attorney                         
 3rd Judicial District                                                         
 Department of Law                                                             
 310 K St., Suite 520                                                          
 Anchorage, AK 99501-1975                                                      
                                                                               
 Kenneth J. Goldman, District Attorney                                         
 3rd Judicial District                                                         
 Department of Law                                                             
 310 K St., Suite 520                                                          
 Anchorage, AK 99501-1975                                                      
                                                                               
 Robert Bundy, U.S. Attorney for                                               
   District of Alaska                                                          
 Anchorage, AK                                                                 
                                                                               
 John Salemi, Director                                                         
 Public Defender Agency                                                        
 900 W 5th Ave., Suite 200                                                     
 Anchorage, AK 99501-2090                                                      
                                                                               
 Kevin O'Leary, Police Chief                                                   
 Municipality of Anchorage                                                     
 P.O. Box 196650                                                               
 Anchorage, AK 99519-6650                                                      
                                                                               
 Mike Williams, Budisness Advisor                                              
 Chugach Alaska Corporation                                                    
 560 E 34th Ave.                                                               
 Anchorage, AK 99501                                                           
                                                                               
 Janice  Lienhart                                                              
 Victims for Justice                                                           
 619 E 5th Ave.                                                                
 Anchorage, AK 99501                                                           
                                                                               
 Brant McGee, Director                                                         
 Office of Public Advocay                                                      
 900 W 5th Ave., Suite 525                                                     
 Anchorage, AK 99501-2090                                                      
                                                                               
 Dr. Teresa Obermeyer                                                          
 3000 Dartmouth Drive                                                          
 Anchorage, AK                                                                 
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 95-35, SIDE A                                                           
 Number 001                                                                    
                                                                               
  CHAIRMAN ROBIN TAYLOR  called the Senate Judiciary Committee meeting         
 to order in the Anchorage LIO conference room at 9:00 a.m.                    
                                                                               
 In his opening remarks, SENATOR TAYLOR referred to an incident                
 known as the Franklin case, which occurred recently in Anchorage,             
 and he said the main purpose of the hearing was to find out if, in            
 fact, it is an anomaly, and, if not, what suggestions or solutions            
 might be posited by various members of the public and the agencies            
 so as to make certain that a Franklin case does not occur again.              
 Ancillary to that, he thinks it is important to understand if, in             
 fact, there has been any shifting of policy within this                       
 administration or within previous administrations as concerns the             
 manner in which plea bargaining or charge bargaining is occurring             
 in the state of Alaska.  He then invited Laurie Otto to testify               
 before the committee.                                                         
                                                                               
 LAURIE OTTO, Deputy Attorney General, Department of Law, stated she           
 thinks the Franklin case was an anomaly, that the department did              
 not handle it properly, but she hopes through the testimony there             
 will be understanding of the circumstances that led up to that                
 case.                                                                         
                                                                               
 MS. OTTO, in presenting an overview on plea bargaining in the state           
 of Alaska,  said all states, the federal government, all other                
 jurisdictions have plea bargaining as a part of their criminal                
 justice system.  However, in 1975, former Attorney General Av Gross           
 forged new ground by banning plea bargaining in Alaska.  He had               
 concluded that justice was not being served, just results were not            
 being reached, that there were greatly disparate sentences being              
 agreed to in different parts of the state, and he thought the                 
 solution was to ban plea bargaining.  There was a great deal of               
 resistance to the ban, especially among the law enforcement                   
 community, because of concerns about it overloading the system.               
 She added that it did have a significant impact on the system.                
                                                                               
                                                                               
 In 1980 the plea bargaining ban was relaxed to allow dismissal of             
 multiple counts if somebody pled to the most serious charge with no           
 sentencing deals allowed.  That same year the legislature passed              
 presumptive sentencing, which mandates specific sentences for                 
 specific crimes.  As the courts applied the presumptive sentencing            
 laws, they developed what they called "benchmark sentences" and, as           
 a result, it could be determined what sentence somebody was going             
 to get just by reading the court opinions.                                    
                                                                               
 In 1986 the plea bargaining policy was relaxed further by allowing            
 greater latitude to enter into plea agreements with authority                 
 granted by somebody in the Criminal Division central office.  Over            
 the years, from 1986 through 1991, those kind of negotiations, both           
 charge and sentencing bargaining, started happening with greater              
 and greater regularity.                                                       
                                                                               
 The Alaska Judicial Council did a study on plea bargaining in 1991            
 and concluded that there was an official ban on plea bargaining in            
 Alaska, but, in reality, there was fairly widespread plea                     
 bargaining going on.  The Council recommended that the attorney               
 general evaluate the propriety of engaging in plea bargaining,                
 promulgate a policy for the department and live with the policy.              
 Following publication of the study, former Attorney General Charlie           
 Cole undertook that task, and then in 1993, he concluded that the             
 ban on plea bargaining should be lifted because plea bargaining               
 formed a valuable function in our criminal justice system, and that           
 is now the policy of the department.                                          
                                                                               
 Ms. Otto said when she returned to the Department of Law after a              
 four-year hiatus, she was shocked by the increase in plea                     
 bargaining and the quality of the deals that were going on.  She              
 referred to and discussed a handout on statistics she has gathered            
 entitled "Felony Percentages."  She found that in Fairbanks 75                
 percent of the people who were charged with felonies by the DA's              
 office were convicted of a felony offense.  Of those, 63 percent              
 were convicted of the crime with which they were charged, and only            
 7 percent were convicted of a misdemeanor.  In looking at the                 
 Anchorage DA's office of the cases that were filed as felonies in             
 FY 94, only 42 percent were convicted of felonies, 40 percent were            
 convicted of misdemeanors and only 27 percent were guilty as filed.           
 She then asked Shannon Hanley to discuss what was happening in                
 Anchorage that led to these numbers.                                          
                                                                               
 Number 175                                                                    
                                                                               
 SHANNON HANLEY, Chief Assistant District Attorney in Anchorage, who           
 has been with the Criminal Division since 1991, said when she went            
 to work there, she observed an aggressive policy of plea bargaining           
 going on in Anchorage, and the reason for this aggressive policy of           
 plea bargaining was because of the way that the office was set up.            
 There was an intake unit to which three attorneys were assigned,              
 and they were responsible for all of the felony cases that came               
 into the Anchorage District Attorneys Office.                                 
                                                                               
 Between 1991 and 1994, a number of attorneys were recruited and               
 hired.  A lot of those attorneys were brand new to the state, and             
 although they had experience prosecuting in other areas, they had             
 to pass the Alaska Bar, become familiar with the Alaska rules, and            
 get up to speed as trial attorneys in Alaska.  There were also                
 attorneys who had been in the misdemeanor unit who were being                 
 promoted into the felony unit and did not have a great deal of                
 felony experience.  So, in essence, in the period of 1991 to 1994,            
 the Anchorage District Attorney's Office was weak on strong felony            
 trial attorneys.  This resulted in a good deal of plea bargaining.            
                                                                               
 By the end of 1994, the policies were very well established.  They            
 were relied on by the court system, they were relied on by the                
 Public Defenders Agency.  At the end of 1994, Ken Goldman was                 
 appointed as the Anchorage District Attorney.                                 
                                                                               
 Number 275                                                                    
                                                                               
 KEN GOLDMAN, Anchorage District Attorney, said when he came to the            
 Anchorage office in 1994, he evaluated the system for about two               
 months.  He found there was a high volume of cases (approximately             
 4,000 cases last year and approximately 2,000 of them were                    
 felonies) and the mandate to the head of the intake unit was to               
 control the flow of cases to the trial attorneys, to keep the cases           
 getting down to the trial attorneys to be very minimal and to                 
 resolve everything that could be resolved.  He said the result was            
 that in order to resolve the cases, you had to basically give away            
 the cases whether they were good cases or bad cases.                          
                                                                               
 Mr. Goldman pointed out that crime has gone up in Anchorage, their            
 prosecutions seem to have gone down, and the number of judges                 
 assigned to the criminal bench have gone down.  When looking at               
 numbers in Anchorage, the assaultive crimes, both felonies and                
 misdemeanors, as well as robberies have taken off.                            
                                                                               
 As part of his evaluation of the system, Mr. Goldlman looked at               
 what was going in the office and he talked to almost everybody in             
 the law enforcement community to ask what was happening and what              
 could be done to fix the problem.  He found the police were very              
 unhappy as to how the cases were being resolved.  They would bring            
 in good cases and they would get resolved relatively cheap.  There            
 was also a great deal of concern about the time it was taking to              
 resolve cases.                                                                
                                                                               
 The trial attorneys were getting the cases from the intake unit and           
 they were coming down with these deals.  They didn't like the                 
 deals, but it was the mandate they were given.  The plea bargains             
 Mr. Goldman saw were pretty much always favorable to the defendant.           
                                                                               
 Number 400                                                                    
                                                                               
 SENATOR TAYLOR commented that we still have the same attorney                 
 general today that we had 18 months ago, so it all depends on which           
 boss we want to blame for the problem.   LAURIE OTTO said the                 
 person who was in her job before she took it had a personal                   
 relationship with the former governor and the decisions that were             
 being made in the Criminal Division were generally being made by              
 the governor, not by the attorney general.  She said this governor            
 has made it clear to the attorney general that he is responsible              
 for what happens in the Department of Law and that he expects her             
 to be responsive to the attorney general.                                     
                                                                               
 Number 450                                                                    
                                                                               
 KEN GOLDMAN said to address the problems, they redesigned the                 
 office with a long range result in mind and created two additional            
 units: the property crimes unit and the violent crimes unit.  When            
 they opened the property crimes unit, the flood gates opened in               
 their office, but things have leveled out and they have gotten rid            
 of the backlog that was sitting there for six months to a year.               
 The same is true with the violent crimes unit.  The concept was, if           
 they have the best prosecutors in the office assigned to do the               
 most high risk cases and they sit down and discuss how to resolve             
 these, they are going to have attorneys who are not afraid to go to           
 trial, attorneys who know what a case is worth, and, hopefully,               
 resolve a case.                                                               
                                                                               
 Mr. Goldman said they wanted to bring back the respect to the                 
 system and the basic protection to the public.  The office is now             
 having faster response time to the police and faster response time            
 to the victims.  The attorneys' caseloads and workloads have                  
 increased, but the attorneys have more control over their cases.              
 They are getting earlier indictments, they are getting more                   
 indictments, and they are getting a chance to evaluate the cases by           
 talking to the victims and witnesses more when the memory fresh.              
 Depending upon the case, more of a case-by-case assessment is                 
 taking place because now the intake unit is doing one thing: they             
 are looking at and evaluating those cases as they come in.   The              
 cases are then sent to the Violent Crimes Unit where they are                 
 reevaluated.                                                                  
                                                                               
 Mr. Goldman spoke to the impact the changes have had on the court             
 system where previously there were five criminal court judges, but            
 that number has been reduced to three, which has resulted in                  
 increased caseloads for the judges.                                           
                                                                               
  TAPE 95-35, SIDE B                                                           
                                                                               
 Using a chart, Mr. Goldman gave an in-depth overview on how                   
 offenders are classified and charged.                                         
                                                                               
 Number 090                                                                    
                                                                               
 SENATOR MILLER asked what the overall difference in philosophy was            
 that resulted in the Fairbanks office having a 75 percent                     
 conviction rate of felonies while the Anchorage office has a 42               
 percent conviction rate.                                                      
                                                                               
 LAURIE OTTO responded that if you go back before 1991, the offices            
 were much more similar, but she thinks that part of is that they              
 brought people into the Anchorage office who grew up in a system              
 where there was plea bargaining, which is every place in the                  
 country.  This period of time in Anchorage is anomalous over the              
 years.  What was happening in Fairbanks, Palmer and the rest of the           
 state is much more typical and had been much more typical.                    
                                                                               
 SENATOR MILLER asked if for the last four years the philosophy in             
 Anchorage was to just get these cases off of the books any way                
 possible.                                                                     
                                                                               
 SHANNON HANLEY agreed that was pretty much the policy she saw when            
 she arrived in Anchorage in 1991.  The goal was to negotiate the              
 cases and have them resolved by negotiation as opposed to trial.              
 At least part of it started out because the office was in turmoil             
 in 1991 in terms of there were a greatly reduced number of                    
 attorneys that year.  That policy was continued because new                   
 attorneys were being trained and, at some point, the policy was in            
 effect because there were only three attorneys handling every                 
 felony that came into the office.                                             
                                                                               
 KEN GOLDMAN added that there were major differences in the                    
 Fairbanks system and one of the major differences was a tighter               
 management control.  In the Anchorage office in 1991 there was much           
 more concern about media publicity and looking good.  He said they            
 have brought a lot of changes to the office and they are constantly           
 refining the system.  He said unfortunately it takes cases like Mr.           
 Franklin, who squeaked through the system and whose case is an                
 anomaly, to show you where to modify and where to refine.  He said            
 his bottom line is to take back control and look more at what is              
 happening.  Not that he hasn't been, but the sheer volume in the              
 Anchorage office makes it such that he can't have the same control            
 he had in Palmer or is exercised in Fairbanks where there are                 
 lesser cases.                                                                 
                                                                               
 Number 185                                                                    
                                                                               
 SENATOR TAYLOR, referring to the Franklin case, said it appears               
 that this man received special courtesy and special treatment                 
 because he violated the law at another field.  He was using illegal           
 drugs and because he has a habit of misusing and using illegal                
 drugs, he ends up with a sentence where he is told to go clean up             
 his act.  He asked what they do with a guy that isn't using drugs.            
                                                                               
                                                                               
 KEN GOLDMAN responded that Mr. Franklin got 90 days in jail as part           
 of his agreement.  He said it is possible that individual                     
 prosecutors would have asked for a lot more time in jail and that             
 he get a conviction of record, but part of the problem with the               
 process is that the bulk of the people that they see have substance           
 abuse problems.  The goal that the court is always jamming down the           
 prosecutors throats is rehabilitation.                                        
                                                                               
 LAURIE OTTO said people who have cocaine problems in addition to              
 the crimes that they commit, in general, are treated more partially           
 than people who don't.  However, she said she disagrees with how              
 the Franklin case was handled, and no longer in Anchorage are they            
 going to agree to SIS's on robbery II.  They have fixed the problem           
 by prohibiting, as a matter of policy, prosecutors from agreeing to           
 an SIS in robbery II cases, and to make sure that this is enforced            
 they are requiring any agreements to be run by the unit supervisor            
 and, in serious cases, by the district attorney.                              
                                                                               
 Number 265                                                                    
                                                                               
 SENATOR TAYLOR asked how they intend on using Rule 11 in the future           
 with judges.                                                                  
                                                                               
 LAURIE OTTO explained that a Rule 11 agreement is one where there             
 is a sentence agreement between the state and a defendant.  That              
 goes before the judge and the judge has the authority to either               
 accept or reject the agreement.  There are two kinds of SIS's that            
 they do: one where the state agrees to a specific sentence and the            
 other where the state agrees that a person get a suspended                    
 imposition of sentence.  She said she doesn't like sentence deals             
 and that they should only be done in rare cases.                              
                                                                               
 KEN GOLDMAN said in most cases he is opposed to sentence deals, and           
 it is his theory that is what the judge was elected to do, but the            
 reality of the Rule 11 program is that 25 to 30 percent of the                
 felony cases are resolved this way.                                           
                                                                               
 SHANNON HANLEY noted that in the past, judges have declined to take           
 some of their Rule 11 agreements, and, when that has happened,                
 often times those cases go to trial or are renegotiated in some               
 manner to make it more palatable to the judge.  The sheer volume of           
 the cases that they had in Anchorage is the reason why they went to           
 the Rule 11 program.                                                          
                                                                               
 Number 375                                                                    
                                                                               
 LAURIE OTTO directed attention to a chart with statistics on what             
 is happening in Anchorage since Mr. Goldman has taken over as                 
 district attorney for the Anchorage office.  In 1995 it shows a               
 doubling of the cases that are going to grand jury as a result of             
 not doing deals.                                                              
                                                                               
 Ms. Otto pointed out that the number of district attorneys has gone           
 down slightly in the last couple of years, but comparatively, there           
 has been a gigantic jump in the number of cases coming into the               
 office.  She believes the biggest problem in our criminal justice             
 system right now is underfunding and it is system wide, not just in           
 the DA's office.  She emphasized that in order to make the criminal           
 justice system work, the legislature has to provide the money for             
 prosecutors, public defenders, judges and jails.  She also spoke to           
 the impact that new laws passed by the legislature without adequate           
 funding have on the system.                                                   
                                                                               
 Number 485                                                                    
                                                                               
 SENATOR TAYLOR commented that if the Mr. Franklins of this world              
 had been kept in jail they would not have committed the subsequent            
 felonies that we are seeing.  However, he believes the only answer            
 is not just throwing more money into the system; a lot of it may              
 have to do with attitude and philosophy within the department.                
                                                                               
 Number 540                                                                    
                                                                               
 ROBERT BUNDY, U.S. Attorney for the District of Alaska and a former           
 assistant district attorney in the Anchorage office, said those two           
 offices work closely together.  It has been his perception that               
 over the last four to five months the state is taking more cases              
 and proceeding with felony charges.  There are a lot of federal               
 mandatory minimums in place with regard to possession of firearms,            
 drug cases and others that depend on a prior felony conviction, be            
 it state or federal, so when people were give misdemeanors,                   
 sometimes that made it tough.  He has seen that policy in the DA's            
 office change so that they more reliably will have a felony                   
 conviction.                                                                   
                                                                               
 Number 615                                                                    
                                                                               
 SENATOR TAYLOR pointed out we often hear the words "plea bargain"             
 used and that plea bargain is the structuring of a sentence                   
 agreement between the prosecutor and the defendant, but at least on           
 the plea bargain under Rule 11, the court, itself, has an                     
 opportunity to either accept or reject.  He said when we see the              
 charge bargaining that was so graphically illustrated as a                    
 guideline going on in the Anchorage area, the judge has no control            
 over that.                                                                    
                                                                               
  TAPE 95-36, SIDE A                                                           
 Number 001                                                                    
                                                                               
 JOHN SALEMI, Director, Alaska Public Defender Agency, said the                
 agency represents individuals who are accused of crimes, and those            
 people are interested in getting strong and competent legal                   
 representation.  In the context of plea bargaining, the agency's              
 role is to negotiate with the district attorney if it is the kind             
 of case where there is the possibility of a negotiated disposition            
 and to do their best, given the facts at hand, to reach a fair and            
 favorable result for their client if they can.  However, the agency           
 does not make decisions about plea bargains; they only communicate            
 the tenor of the negotiations and the result of their negotiations.           
                                                                               
 Mr. Salemi related that the way that plea bargaining and charge               
 bargaining occurs in Alaska is very restrictive when compared to              
 other jurisdictions.  Also, in comparing what is going on in other            
 markets to what is happening in Alaska you find that the people               
 that are sentenced to do jail time do jail time, and the state has            
 significant restrictions with respect to parole eligibility.                  
                                                                               
 Mr. Salemi said that although the Franklin case has been                      
 characterized as an anomaly, he thinks it is now serving a useful             
 purpose because the scrutiny that is now being given to the system            
 is healthy and it will be helpful.                                            
                                                                               
 Mr. Salemi noted that the agency is seeing a tightening up of the             
 screening policy of the DA's office in Anchorage.  They are taking            
 a tougher look at serious felony cases and they are reluctant to              
 make reductions which may have been offered in the past.                      
                                                                               
 Number 100                                                                    
                                                                               
 KEVIN O'LEARY, Chief of Police, Municipality of Anchorage, directed           
 attention to a graph entitled "Uniform Crime Reports" giving                  
 numbers on the reported felony cases investigated by the members of           
 the Anchorage Police Department.  He pointed out that the volume of           
 crimes in Anchorage is significant and it has gone up since 1990              
 with the increase in population.                                              
                                                                               
 Chief O'Leary related that prior to making the changes that have              
 occurred in the district attorneys office, which the department               
 supports, Mr. Goldman took a lot of time to meet with police staff            
 and to educate the commanders, street officers and detectives on              
 the changes they were planning on making, as well as taking                   
 feedback from them.  Prior to these changes, there was a high                 
 degree of frustration among officers who worked cases and are very            
 skilled at what they do.  When they would take a good solid case in           
 and it would disappear.                                                       
                                                                               
 Chief O'Leary also spoke to the need for more funding for the                 
 criminal justice system, as well as more interagency cooperation.             
                                                                               
                                                                               
 Concluding, Chief O'Leary stated the biggest concern he has with              
 respect to the criminal justice system is with the Department of              
 Corrections.  He expressed his appreciation that the legislature              
 put some money back into the department because it one of the                 
 biggest problems the state has.                                               
                                                                               
 Number 150                                                                    
                                                                               
 SENATOR TAYLOR spoke to his concern with the dramatic increase in             
 stolen vehicles in the Anchorage area, especially by juveniles, and           
 the fact that the juvenile justice system is not working.  CHIEF              
 O'LEARY agreed it is big problem, and he related that the penalties           
 for the offenders don't come from the juvenile justice system, but,           
 instead, from the school districts with suspensions from school.              
                                                                               
 SENATOR TAYLOR asked Chief O'Leary for his comments on whether or             
 not the Cleary decision is working.  CHIEF O'LEARY responded that             
 it clearly has an impact on corrections.  They are under sanctions            
 to the state to keep the inmate level at a certain level, and if              
 they go above that cap, then they are being fined.  It has an                 
 impact, systematically, on the magistrates, because when they have            
 a individual before them, most often that individual is released to           
 a third party or under their recognizance because of overcrowding             
 in the jails.  It has an impact on the police department in terms             
 of their ability to place prisoners, as well as non-criminal                  
 committals which are the inebriate problems, because there is no              
 facility in Anchorage that addresses that problem.  He said it is             
 working from the perspective that it is limiting the number of                
 people that can be placed in the prisons, but it does create a very           
 serious system-wide problem.  He also said he believes that the               
 Cleary decision needs to be revisited.                                        
                                                                               
 Number 300                                                                    
                                                                               
 MIKE WILLIAMS, Business Advisor for Chugach Alaska Corporation,               
 said Chugach has been working with Corrections Corporation of                 
 America, which has the ability to finance, design, build and                  
 operate correction facilities.  He said Chugach Corporation has               
 talked to the administration and the Municipality of Anchorage to             
 let them know that there are private corporations out there who are           
 willing and able to fill any gap, which they believe will be at a             
 lower cost.                                                                   
                                                                               
 Number 355                                                                    
                                                                               
 JANICE LIENHART, representing Victims For Justice, stated she has             
 been impressed with the District Attorneys Office taking time to              
 listen to the victims when they have done plea bargaining, and she            
 sees this being done more and more.  However, in working with the             
 victims of crime, she finds that the system, because of money, is             
 impairing public safety because there isn't the money to                      
 incarcerate criminals.  The laws are being redefined so that we are           
 letting more dangerous people on the street, so we are constantly             
 seeing more and more people victimized.  She believes the problem             
 starts in the juvenile system, and she suggested that until we                
 start again being proactive and making kids accountable for their             
 actions, there will never be enough prisons.                                  
                                                                               
 Number 430                                                                    
                                                                               
 SENATOR GREEN commented that one of the things that the Health,               
 Education and Social Services wants to look at is the role of                 
 parents' parental rights and how that has literally turned around             
 behaviors.                                                                    
                                                                               
 Number 500                                                                    
                                                                               
 BRANT MCGEE, Director, Office of Public Advocacy, said he thinks it           
 is ironic that DA's office is being criticized for plea bargaining,           
 although he thinks that office can be justly criticized for the               
 result in the Franklin case, which he attributed to human error.              
 He said it is unfair to criticize the DA's office because of a                
 failure involving a systemic problem regarding plea and charge                
 bargaining, especially where there is dramatic evidence that plea             
 and charge bargaining has been tightened up during the past six               
 months.  He added that charge bargaining is far more difficult to             
 achieve for defense attorneys and the plea bargains are nearly                
 impossible to achieve for defense attorneys in Anchorage.                     
                                                                               
 Mr. McGee said since Mr. Goldman has implemented some policy                  
 changes in the DA's office, the Office of Public Advocacy has seen            
 a substantial increase in trials, and it is far more common for               
 cases to go to trial than it was six months ago.  He believes the             
 office is being run much better since Mr. Goldman has taken over,             
 although he disagrees with a number of his policies.                          
                                                                               
  TAPE 95-36, SIDE B                                                           
 Number 075                                                                    
                                                                               
 SENATOR TAYLOR asked Ms. Otto is she would recommend taking every             
 step possible to overturn and rewrite Cleary.   LAURIE OTTO                   
 responded that Cleary is a order of the court, it is not an                   
 agreement at this point.  The Executive Branch is obligated to                
 comply with the court order that is entered in Cleary.  There are             
 circumstances under which the Supreme Court allows the state to               
 argue changed circumstances as a way of getting out from under                
 consent decrees, but they are very limited.  She said it may be               
 that the legislature is interested in looking at these things, but            
 the Executive Branch, by the terms of the order, is bound to follow           
 it or else they will be held in contempt.                                     
                                                                               
 SENATOR TAYLOR said if we can't find opportunities to challenge it            
 through the court system, then maybe it should be done through the            
 legislative system.  He asked Ms. Otto if she would work towards              
 that and encourage the legislature to do so.  LAURIE OTTO answered            
 that she was sure that they would work with the legislature                   
 consistent with what they believe is the best corrections policy              
 and what they are able to do without being contemptuous and                   
 violating their obligation to comply with an existing court order.            
                                                                               
                                                                               
 Number 300                                                                    
                                                                               
 [THE COMMITTEE RECESSED FOR LUNCH AND CAME BACK TO ORDER AT                   
 APPROXIMATELY 1:30 P.M.]                                                      
                                                                               
 DR. TERESA OBERMEYER of Anchorage spoke to various frustrations she           
 has with the legal system at the state and federal levels.  SENATOR           
 TAYLOR reminded her that the purpose of the meeting was to get                
 public comment on charge bargaining and plea bargaining.                      
                                                                               
 There being no further witnesses to appear before the committee,              
 SENATOR TAYLOR adjourned the meeting at 1:45 p.m.                             
                                                                               

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