Legislature(1997 - 1998)
01/28/1998 02:00 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
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SENATE JUDICIARY COMMITTEE
January 28, 1998
2:00 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Johnny Ellis
MEMBERS ABSENT
Senator Sean Parnell
COMMITTEE CALENDAR
SENATE BILL NO. 219
"An Act relating to establishing an office of crime victims'
advocacy; and amending Rule 16, Alaska Rules of Criminal Procedure,
Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of
Evidence."
SENATE BILL NO. 201
"An Act relating to prohibiting recovery of damages and prohibiting
a remedy to a person in a civil action."
PREVIOUS SENATE COMMITTEE ACTION
SB 219 - See Judiciary minutes dated 1/21/98.
SB 201 - See Judiciary minutes dated 10/10/97.
WITNESS REGISTER
Senator Rick Halford
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Prime Sponsor of SB 219
Ms. Jayne Andreen
Council on Domestic Violence and Sexual Assault
PO Box 111200
Juneau, Ak 99801
POSITION STATEMENT: Commented on SB 219
Mr. Brant McGee
Office of Public Advocacy
960 West 5th
Anchorage, Ak
POSITION STATEMENT: Recommended change to SB 219
Mr. Dean Guaneli
Department of Law
PO Box 110300
Juneau, Ak 99801
POSITION STATEMENT: Commented on SB 219
Ms. Lauree Hugonin
Alaska Network on Domestic Violence and Sexual Assault
130 Seward room 501
Juneau, Ak 99801
POSITION STATEMENT: Commented on SB 219
ACTION NARRATIVE
TAPE 98-3, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:06 p.m. and noted the presence of SENATOR MILLER,
SENATOR PEARCE, SENATOR ELLIS as well as SENATOR HALFORD, prime
sponsor of SB 219.
SB 219 - OFFICE OF VICTIMS' ADVOCACY
SENATOR HALFORD presented an amendment which he said deletes the
subpoena of a judge or jury. He said it does not mean a person
cannot ask a question of a judge or juror, only that they have no
authority to enforce the question be answered. He said this
addresses one concern raised and remembered SENATOR ELLIS had
another concern. He did not object to accommodating his request but
wasn't sure an amendment had been drafted.
SENATOR ELLIS said he believed there was an amendment.
CHAIRMAN TAYLOR requested that before moving on to the second
amendment he would like to take testimony on SENATOR HALFORD's
amendment.
SENATOR MILLER moved amendment one and without objection, the
amendment was adopted.
SENATOR ELLIS apologized his amendment had not been copied earlier.
He agreed with SENATOR HALFORD that the misdemeanors covered in his
amendment should be prioritized under felony crimes and dealt with
by the advocate as resources permit. He offered it to the committee
for consideration.
SENATOR HALFORD said he had not seen it until this time but it does
meet the requirements he had expressed to his staff. He sees it as
a positive change that does not substantially dilute the bill's
effectiveness.
SENATOR ELLIS committed himself to go no further with this or any
other amendments.
SENATOR HALFORD researched the question of who is defined as the
victim and found the current laws inadequate. He sees this bill as
a big step in the right direction in relation to all victims'
rights. He stated that the prosecutor can decide who is a victim
and advocate for and notify this person or persons. He explained
this is a new area of law that will need some fleshing out to
elevate victims' rights to the proper level.
CHAIRMAN TAYLOR expressed concern that, in only specifying domestic
violence misdemeanors, other serious violent misdemeanors like
assault may be overlooked.
SENATOR ELLIS replied it was not his intention to omit these crimes
but he was not positive they were covered.
CHAIRMAN TAYLOR restated his concern that some very serious
felonious misdemeanors might not be included if this amendment only
covers domestic violence misdemeanors.
SENATOR HALFORD explained thatthe amendment covers a felony or a
class A misdemeanor if the class A misdemeanor was a crime
involving domestic violence or a crime against a person. This
covers first, second, third, and fourth degree assault, reckless
endangerment and stalking in the second degree. He assumed it did
cover most violent crimes. He said the amendment made this good
thing bigger.
CHAIRMAN TAYLOR was somewhat concerned with the fiscal note but
noted it would be dealt with in Finance.
SENATOR ELLIS moved the amendment and there being no objection, the
amendment was adopted.
DEAN GUANELI, representing the Department of Law (DOL) apologized
for not attending the last meeting and came forward to respond to
some concerns he learned had been expressed. He stated that the DOL
was one of the first jurisdictions in the country to create a
victims' assistance program in the late 1970's. Last year the
department held a district attorney and paralegal training
conference devoted to the discussion of sexual assault crimes,
including the effect on victims. They dealt with domestic violence
in a previous conference and hope to focus on child victims this
year. He said the department has strongly focused on victims
because it helps the prosecutor and is the right thing to do. He
reviewed the concerns expressed at last week's hearing; going over
the testimony regarding lack of notification and poor treatment of
victims. He said it was not a surprise to hear. He may, however,
have a different interpretation of the situation than the victims
for several reasons. The first reason he cited was sheer numbers,
saying the department may have to make 50,000 contacts a year just
to get people to court. He said occasionally things fall through
the cracks. He explained also that often they get very short notice
from the court system and he doesn't expect the proposed office of
victims' advocacy to help in this. He mentioned several handouts
available for victims that educate them about their rights, and
said some of these are being translated into Yupik for distribution
statewide. He described how victims undergo trauma that can not be
undone by the department no matter what. He said often other
circumstances in a victim's life can compound the pressure they are
under. Sometimes all the combined trauma a victim is dealing with
leaves them unable to adequately understand and process information
given to them. He cited this as another reason for giving victims
brochures which allow them to use these materials when they are
best able to process them. He thinks the victims' advocate would be
helpful and the department would appreciate any help.
Number 240
DEAN GUANELI gave detail about the Fairbanks triple murder case
last week's witness gave testimony on. There were three victims in
this case designated for notification when, by law, the department
only had to designate and inform one. He did not want to go in to
detail but mentioned that there were other very serious things
going on in the lives of the victims that affected their ability to
process and comprehend the information they were given.
Specifically, DEAN GUANELI believed some of the information this
witness wanted was the police report which is by law confidential
until the case is concluded. He said victims have no greater right
to view confidential information than the public. He said she may
have not been able to understand this at the time and might have
even been given too much information, but he did review the actions
in the case and he was satisfied they did the best job possible.
DEAN GUANELI mentioned two ways in which the office of victims'
advocacy could help; primarily by explaining the law to victims and
helping them through their trauma and secondly, by protecting
victims against unfair defense attorney tactics.
DEAN GUANELI also mentioned ways in which the office could
potentially do harm in some cases. He said victims in many domestic
violence cases later want to recant their testimony and current
policy prohibits the department from allowing this. If the victims'
advocate facilitated non-cooperation or recantation, it would be a
problem. He said this may or may not happen depending on the type
of client advocate relationship initially set-up. He suggested that
if an advocate fully advised victims of their criminal and civil
rights, including their possible right to civil compensation, this
might open up other lines of questioning and possibly even make the
victim out to look "money-grubbing." He concluded that depending on
what was advised by the advocate, the victim could be inadvertently
harmed by well intentioned advice.
DEAN GUANELI continued his testimony, giving examples of cases
where the department has been frustrated by the courts in their
attempts to grant victims their rights as outlined under Alaska
Statute 12.61.10b. This statute says every reasonable effort should
be made to ensure victims of crimes are treated in accordance with
their rights as set out in this section. In one case, a severely
injured woman who had surgery and memory loss due to domestic
violence had to go through a battery of psychiatric tests. In
response to this, the legislature passed a law to keep this from
happening. He also said sometimes the courts are not considerate of
the victims' rights if they conflict with the court's schedule. He
added that sometimes a problem like this can be resolved in the
court of appeals but they do not always rule in favor of victims'
rights. He gave other examples in which the court did not act in
the best interests of the victims.
Number 400
DEAN GUANELI explained that his point was that if the committee
wanted progress to be made, victims' rights should not be developed
through case law at the appellate court level in Alaska. He
expressed a lack of confidence that case law would develop quickly
or predictably. He suggested that if the intent was to develop
victims' rights, it should be done through statutory change. He
suggested a comprehensive body of statutes and said Alaska has a
good start. He urged them to pursue this course of action.
BARBARA BRINK, Public Defender for the State of Alaska, agreed with
Mr. Guaneli regarding the unintended consequences of the bill. She
said she had heard some questions regarding allocation of resources
in the public defender's office and she was available to answer
these.
SENATOR HALFORD asked about a case in Anchorage where the
defendant's family hired an attorney and this attorney was
subsequently hired by the public defender's office to represent the
man after he was declared indigent and the family hired yet another
attorney for the man. He asked what defines indigent and does it
apply to a person whose family can afford to hire an attorney.
BARBARA BRINK replied that this was a misunderstanding. She said
this man did have private counsel before he turned himself in.
Later, when he no longer had counsel, a determination was made that
he was indigent and a public defender was appointed. The family
later contacted BARBARA BRINK to ask if some joint arrangement
could be worked out, allowing the private counsel to be hired and
work alongside the public defender. She flatly said no, saying a
person is either indigent and entitled to the services of a public
defender or they are not. The family later rallied their resources
and retained the private attorney, according to MS. BRINK. She said
the public defender is not involved in that case.
SENATOR HALFORD thanked MS. BRINK for her good answer.
Number 490
MR. BRANT MCGEE, Director of the Office of Public Advocacy
testified he was concerned that the public may confuse this office
with his own. He said it is difficult for the average citizen to
wade through the alphabet of state agencies already and a different
name may make it easier for people to locate this office. He said
it was a small concern and he was not sure how much difficulty it
would potentially cause but thought the name change was
appropriate.
CHAIRMAN TAYLOR agreed, saying he has seen this happen in relation
to other agencies and asked SENATOR HALFORD if he had any problem
removing the word advocate and inserting "rights." With none
stated, he moved it as a conceptual amendment and without
objection, CHAIRMAN TAYLOR said that conceptual amendment would be
incorporated into a committee substitute.
MS. LAUREE HUGONIN, representing the Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), came forward to inform the
committee of what nonprofit and volunteer groups around the state
are doing to support victims' advocacy. She cited results of a
statewide survey of victims that asked what their number one need
was and overwhelmingly found it was legal advocacy. She informed
the committee that in 23 communities around the state there are
legal advocates for victims thanks to federal grants. She said this
money has also allowed a paralegal coordinator to be placed in the
criminal division of the DOL to work with victim witness
coordinators in each district attorney's office to prepare victims
for court. She talked about other positions and programs that exist
around the state and others in the planning phase. She hoped these
projects could also be supported with state funding and said it
would help to take better care more of more victims. Her only
concern with a centralized office of victims' right is that the
office will be overwhelmed. She suggested perhaps later as the
office was being instituted, boundaries could be set to determine
what kind of representation would be available to whom and how
often.
CHAIRMAN TAYLOR agreed with MS. HUGONIN that it is unlikely victims
will always have legal representation with the limited budget
available. He said the victim already has an attorney there, that
being the district attorney, and the idea is the advocate would be
there to protect the victims' rights under our Constitution, as
amended. He speculated the work load would be tremendous, making it
difficult for this office to do much more than triage. They will
most likely develop protocol to help deal with the cases that are
most grievous.
TAPE 98-3, SIDE B
Number 001
SENATOR HALFORD said he was also concerned that this office would
help people who had been denied their Constitutional rights, not
provide people with an attorney to find ways to mess up their
cases.
SB 201 - PROHIBIT RECOVERY BY WRONGDOER
CHAIRMAN TAYLOR said one of his main concerns was that in a hearing
held in Anchorage regarding the largest fraud case in Alaska, he
could not tell people why not a single charge was filed. He said
that until an explanation was provided by the attorney general, he
thought these people deserved an apology.
DEAN GUANELI said he was prepared to give a response if the
committee so desired and CHAIRMAN TAYLOR replied that it seemed
relevant to him.
DEAN GUANELI gave a bit of background, saying in the mid 1980's
there was an audit done of the finances of the North Slope Borough
which revealed widespread fraud and corruption involving public
officials. As a result of the initial investigation, it was decided
that the scope of the case and the fact that federal officials were
already investigating necessitated that the case be turned over to
the federal prosecutors. The federal prosecutor successfully
prosecuted the case and jail sentences were imposed. DEAN GUANELI
said in reference to this particular case involving a travel agency
revealed to be a classic "ponzi scheme," there is already a federal
investigation going on. The perpetrator's attorney has left the
country but the case is ongoing. The case involves 1,100 victims in
several states from all over the country and DEAN GUANELI said
there are both legal and practical reasons why the state is not
pursuing charges. MR. GUANELI said by the time state prosecutors
were advised of the scam, there was already a federal bankruptcy
and an IRS investigation going on and it was clear the case would
be taken over by the feds. He said he personally sat down with the
U.S. Attorney and it was obvious they would take over since they
clearly had better laws and sentencing provisions. He said if there
are any assets left anywhere the federal authorities are in a
better position to collect them and provide restitution to the
victims, as they have more money and more investigative resources.
DEAN GUANELI said one legal reason why the state would not
investigate is the fact that parallel investigations are not a good
idea. The IRS had many of the documents and does not share
information with state investigators. Also, with parallel
investigations going on, each runs the risk of ruining the case for
the other if they are not aware and informed of one another.
Number 511
DEAN GUANELI said the other legal issue under consideration was the
fact that the federal authorities had already granted immunity to
one of the participants in the case, which, under a court ruling at
that time, also translated into blanket state immunity. He
explained "use immunity," means immunity for the use of a person's
testimony, vs. "transactional immunity" which means complete
immunity from prosecution. The federal authorities use the former
type, whereas the State of Alaska uses the latter. He explained
that they were in a position of going forward with the
investigation blindfolded and said it was not appropriate. Not
until after this decision had been overturned by the Court of
Appeals would the state have been able to prosecute that person at
all. The later ruling of the Court of Appeals determined that
federal immunity only granted comparable immunity in state court,
but that was not the case at the time.
MR. GUANELI continued with the risks faced in proceeding with state
prosecution. He said the different rules of state and federal
discovery allow for complete discovery in a state case and only
partial discovery in a federal case. This would mandate the state
turn over all its information to the defendant but a federal
prosecutor would only have to turn over some information. He gave
the opinion that this would have permitted the state to convict
only on a class B felony. He said these were part of the whole host
of legal and practical reasons why it was inappropriate for the
state to be involved. He said the one the papers picked up on was
that there were several individuals at the Department of Law who
had been involved as investors. He stated this created a perception
of impropriety, even if the department had appointed a special
prosecutor. So, because of these problems and at the request of the
U.S. attorney, the department did not get involved and instead
there is a federal indictment and the trial is scheduled for the
summer. He said he believes these to be sound legal and practical
reasons and if they were not adequately communicated he is sorry.
SENATOR PEARCE asked if any of the Department of Law employees are
under indictment.
MR. GUANELI replied no.
CHAIRMAN TAYLOR assured DEAN GUANELI he was sure there were reasons
for why it happened this way and said the headlines were
unfortunate. He also said he thinks there is a feeling of betrayal
on the part of the victims and remarked that one of the biggest
beneficiaries of this scheme was one of our state's employees. He
believed this raises serious questions and creates poor public
perception. No state prosecution has been brought on any charge
when citizens of the state brought bad checks and showed them to
the troopers. He knew the State of Idaho had prosecuted this woman
since she was on probation when she came to Alaska. He wondered if
our state talked to the State of Idaho. He thought computers kept
track of all kinds of things and wondered why they could not be
used to protect Alaskans. He hoped things did happen the way DEAN
GUANELI said and added he would be having additional hearings on
this matter.
CHAIRMAN TAYLOR said it was his understanding that the IRS has not
prosecuted this woman and it has been suggested that they held off
in order to receive more taxes and is actually prosecuting the
victims right now on their tax returns. He reminded those present
that some of these people came out well ahead and some were state
employees. He believed this justified a stronger, swifter response.
He expressed concern about the lengthy time period elapsed from the
first mention of the issue and about the letters written by state
employees who were in fact winners in the scheme.
DEAN GUANELI agreed that regarding public perception the ball was
dropped and his office could have done a better job providing all
the reasons.
CHAIRMAN TAYLOR said as a judiciary committee they had to
investigate these subjects but feared this might further enhance
the state's liability. He said that liability may be of some
magnitude. He appreciated MR. GUANELI'S response and said he truly
believed in the right of non-prosequitur. He also believed he was
the only person who wanted to retain the right of an individual to
bring a criminal charge of prosecution when the state failed to do
so. That law was eliminated eleven or twelve years ago when people
were using it as a tool of harassment. He still believes there
should be an avenue for victims to be heard in the absence of
prosecution and maybe this bill will do that.
SENATOR MILLER moved CSSB 219(JUD) out of committee with individual
recommendations and CHAIRMAN TAYLOR told committee members the
final CS would be brought to them before signing the committee
report. There were no objections and the bill moved from committee.
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