03/19/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB202 | |
| SB234 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 234 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 202 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 19, 2008
1:34 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Charlie Huggins, Vice Chair
Senator Lesil McGuire
Senator Bill Wielechowski
Senator Gene Therriault
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 202
"An Act relating to expenditures in aid of or to implement the
provisions of the federal Real ID Act."
HEARD AND HELD
SENATE BILL NO. 234
"An Act relating to the crimes of assault in the fourth degree
and of resisting or interfering with arrest; relating to the
determination of time of a conviction; relating to offenses
concerning controlled substances; relating to issuance of search
warrants; relating to persons found incompetent to stand trial
concerning criminal conduct; relating to probation and to
restitution for fish and game violations; relating to
aggravating factors at sentencing; relating to criminal
extradition authority of the governor; removing the statutory
bar to prosecution of certain crimes; amending Rule 37(b),
Alaska Rules of Criminal Procedure, relating to execution of
warrants; and providing for an effective date."
MOVED CSSB 234(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 202
SHORT TITLE: PROHIBIT STATE SPENDING FOR REAL ID ACT
SPONSOR(s): SENATOR(s) WIELECHOWSKI
01/16/08 (S) PREFILE RELEASED 1/4/08
01/16/08 (S) READ THE FIRST TIME - REFERRALS
01/16/08 (S) STA, JUD
02/14/08 (S) STA AT 9:00 AM BELTZ 211
02/14/08 (S) Heard & Held
02/14/08 (S) MINUTE(STA)
02/19/08 (S) STA RPT 2DP 1DNP 1AM
02/19/08 (S) DP: MCGUIRE, FRENCH
02/19/08 (S) DNP: BUNDE
02/19/08 (S) AM: STEVENS
02/19/08 (S) STA AT 9:00 AM BELTZ 211
02/19/08 (S) Moved SB 202 Out of Committee
02/19/08 (S) MINUTE(STA)
02/27/08 (S) JUD AT 1:30 PM BELTZ 211
02/27/08 (S) Heard & Held
02/27/08 (S) MINUTE(JUD)
03/19/08 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 234
SHORT TITLE: CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/18/08 (S) READ THE FIRST TIME - REFERRALS
01/18/08 (S) JUD, FIN
02/22/08 (S) JUD AT 1:30 PM BELTZ 211
02/22/08 (S) -- MEETING CANCELED --
02/29/08 (S) JUD AT 1:30 PM BELTZ 211
02/29/08 (S) Heard & Held
02/29/08 (S) MINUTE(JUD)
03/17/08 (S) JUD AT 1:30 PM BELTZ 211
03/17/08 (S) Heard & Held
03/17/08 (S) MINUTE(JUD)
03/19/08 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
GEORGE ASCOTT, Staff
to Senator Wielechowski
Alaska State Capitol
Juneau, AK
POSITION STATEMENT: Provided information related to SB 202.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
Juneau, AK
POSITION STATEMENT: Responded to questions related to SB 234.
BILL OBERLY, Executive Director
Alaska Innocence Project (AIP)
Anchorage, AK
POSITION STATEMENT: Provided supporting testimony for
Conceptual Amendment 3 to SB 234.
DAN HOFFMAN, Chief
Fairbanks Police Department
Fairbanks, AK
POSITION STATEMENT: Expressed concern with Conceptual Amendment
3 to SB 234.
JOHN GLASS, Deputy Commissioner
Department of Public Safety
Anchorage, AK
POSITION STATEMENT: Stated that he needs to give Conceptual
Amendment 3 further study.
GARDNER COBB, Captain
Anchorage Police Department (APD)
Anchorage, AK
POSITION STATEMENT: Agreed with the intent of Conceptual
Amendment 3 to SB 234, but expressed concern with the mechanics.
GREGG STEWART, Supervisor
APD Evidence Section
Anchorage, AK
POSITION STATEMENT: Expressed concern with Conceptual Amendment
3 to SB 234.
ORIN DYM, Forensic Laboratory Manager
State Crime Laboratory
Department of Public Safety
Anchorage, AK
POSITION STATEMENT: Testified on SB 234 and described
procedures at the state crime lab.
QUINLAN STEINER, Director
Public Defender Agency
Department of Administration
Anchorage, AK
POSITION STATEMENT: Stated support for the mission of the
Alaska Innocence Project during testimony on SB 234..
DOUGLAS WOOLIVER, Administrative Attorney
Alaska Court System
Anchorage, AK
POSITION STATEMENT: Provided fiscal information related to SB
234.
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:34:18 PM. Present at the call to
order were Senators French, McGuire, Wielechowski, and Huggins.
Senator Therriault arrived shortly thereafter.
SB 202-PROHIBIT STATE SPENDING FOR REAL ID ACT
CHAIR FRENCH announced the consideration of SB 202.
1:34:43 PM
SENATOR WIELECHOWSKI noted the previous hearings, and said an
issue that's come up is whether or not the bill will impact the
Division of Motor Vehicle's (DMV) ability to continue to do best
practices. He suggested that his staff member explain how other
states with similar provisions have confronted the issue.
CHAIR FRENCH remarked that this goes to his concern about
whether the bill gives clear direction to the court and others
should a suit result due to the implementation of the law. The
question is whether DMV will know what it can and cannot spend
money on, and whether a judge looking at a suit brought under
this statute will know what money can and cannot be spent on.
GEORGE ASCOTT, staff to Senator Wielechowski explained that
Montana, Washington, and Maine all passed legislation rejecting
Real ID. None of those states indicated that doing so prevented
them from conducting best practices, regardless of whether the
practices coincidentally complied with some aspect of Real ID.
Officials from each state seemed somewhat surprised at the
suggestion that this would be an issue. In fact, they saw the
legislation as reinforcing the state's ability to make its own
decisions. Mr. Luckhaupt, the drafter of this legislation,
agrees that under this legislation the administration could
continue to conduct and implement best practices as long as it
wasn't done specifically to comply with Real ID. Thus, he said,
there is no need to amend SB 202.
CHAIR FRENCH summarized that he spoke with three states and the
legislative drafter all of whom said that this legislation has
not and would not prevent continued efforts to make driver's
licenses secure.
1:38:52 PM
SENATOR WIELECHOWSKI added that some of those states have the
most secure driver's licenses in the country. Those states were
aiming to prevent the sharing of their databases with other
states, which is what this bill does. That sharing exposes
citizens to substantial security risk, he said.
CHAIR FRENCH said his concerns are satisfied.
SENATOR HUGGINS referred to an issue that came up in Fairbanks
and Anchorage with respect to not using state money for
enforcing federal immigration provisions, and asked if there
might be similar unintended consequences with this bill.
1:40:43 PM
MR. ASCOTT relayed that, based on the recommendations of the 911
Commission, Maine is considering implementing a residency
requirement to obtain a driver's license or an ID card. It's one
of the few states that doesn't already have that requirement and
although it would comply with Real ID, state officials don't
foresee any problem.
SENATOR WIELECHOWSKI added that it's already against the law for
illegal immigrants to get an Alaska driver's license. "In our
opinion, this will not impede the state's ability to deal with
illegal immigrants in any way," he said.
CHAIR FRENCH found no further questions, comments, or
observations and asked for a motion.
SENATOR WIELECHOWSKI motioned to report SB 202 from committee
with individual recommendations and attached zero fiscal note.
CHAIR FRENCH announced that without objection, SB 202 is moved
from Senate Judiciary Standing Committee.
At ease from 1:42:19 PM to1:43:03 PM
SB 234-CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
1:43:11 PM
CHAIR FRENCH announced the consideration of SB 234. He explained
that when the committee last met Senator Wielechowski moved
Version C committee substitute (CS), and he had objected for
discussion purposes. In the interest of setting that CS aside
and getting a different one before the committee, he withdrew
his objection.
SENATOR WIELECHOWSKI withdrew his motion to adopt Version C, CS
to SB 234, labeled 25-GS2038\C, Luckhaupt.
CHAIR FRENCH asked for a motion to adopt Version E, CS to SB
234.
1:44:00 PM
SENATOR THERRIAULT joined the meeting.
SENATOR HUGGINS moved to adopt CS to SB 234, labeled 25-
GS2038\E, Luckhaupt.
CHAIR FRENCH objected for discussion purposes. He explained this
CS incorporates five changes as a result of the previous
hearing. Sections 1 and 2 tighten language with respect to
electronic database reporting such that the records will be
submitted, as required, to local law enforcement agencies.
Section 3 addresses the three-strikes assault provision. As
currently written, only assaults that happen forward of the
effective date of the bill would count as priors. It would only
count felony assaults, felony sex assaults, and sex abuse of a
minor as well as pain assaults in the misdemeanor realm, he
said. The third change adds zopiclone (Lunestra) to the list of
controlled substances in Section 7. The forth change occurs in
Section 17 [18]. Last week there was debate on how long the
police should have to return a search warrant and this keeps the
provision for two 30-day periods. "You have to make a return
within 30 days; if you apply to the court you can get another 30
days if you show good cause." Although some suggested adopting a
reasonable timeframe, it seems better to have a number and let
that be the guiding principle, he said. The final change is to
the applicability sections, making the assault provisions
prospective rather than retrospective.
1:46:43 PM
SENATOR WIELECHOWSKI referred to page 3, lines 5-15, and said
his understanding is that if someone has committed murder or
assault on two or more occasions then the third assault is a
felony.
CHAIR FRENCH asked Ms. Carpeneti to outline, for the record, the
statutory references on page 3, lines 8-13.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, explained that the predicate offenses are
listed on lines 8-15. Line 8 [AS11.41.100 - 11.41.170] refers to
homicide convictions. Line 9 [AS11.41.200 - 11.41.220] refers to
assault in the first degree-a class A felony, and assault in the
second degree-a class B felony. Line 10 [AS11.41.230(a)(1) or
(2)] refers to injury assault in the fourth degree. Fear assault
in the fourth degree, which is a misdemeanor, is not included as
a predicate offense. Line 11 [AS11.41.280 - 11.41.282] refers to
assault of an unborn child in the first and second degree. Line
12 [AS11.41.260 - 11.41.270] refers to stalking in the first and
second degree. Line 13 [AS11.41.410, 11.41.420.11.41.436. or
11.41.438] refers to sexual assault in the first and second
degree and sexual abuse in the first and second degree.
1:48:45 PM
SENATOR WIELECHOWSKI asked if all those offenses, if conducted
on their own, would already be felonies.
MS. CARPENETI replied all but the fourth degree injury assaults
and stalking in the second degree.
SENATOR WIELECHOWSKI said if someone is convicted twice of
stalking and then commits a fourth degree assault that would
become a felony.
MS. CARPENETI said yes, as long as it's an injury assault and
not a fear assault.
CHAIR FRENCH noted the memo from Mr. Wooliver and asked him to
give his view of the fiscal impact of the three-strikes assault
provision.
DOUGLAS WOOLIVER, Administrative Attorney, Alaska Court System,
explained how the court counts and tracks cases and relayed that
under the current statutory list of predicate offenses, had this
bill been in effect in calendar year 2007, approximately 600
misdemeanor offenses would have been charged as felonies.
CHAIR FRENCH restated that under the current CS, that is 600
individuals who were charged with assault in the fourth degree
and have two predicate priors. Mr. Wooliver agreed.
1:52:18 PM
SENATOR WIELECHOWSKI asked if the analysis was done under the
provision in Version E or under the prior provision that only
included crimes involving domestic violence.
MR. WOOLIVER replied the number 600 comes from an analysis under
the CS that's before the committee.
SENATOR THERRIAULT asked if there would be latitude to plead
down from the higher charge.
MR. WOOLIVER said yes; the number he gave is relevant for the
court because what a person is charged with determines which
court he or she will be in. What the person pleads to is a
different matter and doesn't affect the fiscal note too much.
CHAIR FRENCH added that any felony charge means the person will
be in superior court. For example, a person could be charged
with 9 misdemeanors and a felony, and because of the one felony
charge, they'd go to superior court.
MR. WOOLIVER agreed.
CHAIR FRENCH commented that he wouldn't have guessed the number
would be that high, but if 600 people who have a number of
priors are out there assaulting individuals, the message
obviously isn't getting across. That illustrates the need for
this kind of statute, he said.
MR. WOOLIVER added that in looking at the prospective
application of the bill, he found that the Department of
Corrections (DOC) has interesting statistics on the number of
people who have three convictions within a 12-month period.
"People wrack up these offenses very quickly," he said.
CHAIR FRENCH reminded the committee that there won't be 600
cases next year because it will take some time for the predicate
priors to begin to count. "None of the convictions that are on
the books today, will make a person a felon under this law.
They've got to be convictions after the effective date of the
Act," he said.
MR. WOOLIVER agreed.
CHAIR FRENCH added that "Better late than never." is the
watchword for today.
1:54:26 PM
CHAIR FRENCH removed his objection. Finding no further
objection, he announced that the CS is before the committee.
Directing attention to page 7, lines 5-6, he suggested that the
language about returning the search warrant based on the
circumstances of the investigation is no longer necessary. It
was necessary when the warrant had to be returned within a
reasonable amount of time, but not now that the timeframe is a
firm 30 days. He asked Ms. Carpeneti to comment.
MS. CARPENETI agreed that the language is surplus.
1:55:59 PM
CHAIR FRENCH moved Amendment 1.
Amendment 1
Page 7, lines 5-6:
Delete "as determined by the court based on the
circumstances of the investigation"
1:57:02 PM
SENATOR THERRIAULT asked if the end of the sentence should read,
"… after the date of its issuance."
MS. CARPENETI said it works without the insertion, but adding
the phrase does make the sentence sound better.
CHAIR FRENCH suggested that be addressed separately.
CHAIR FRENCH found no objection, and announced that Amendment 1
is adopted.
1:57:59 PM
CHAIR FRENCH moved Amendment 2.
Amendment 2
Page 7, line 5 following "date"
Insert "of issuance"
SENATOR THERRIAULT suggested the committee pass the amendment
with "wiggle room" to allow the drafter latitude. Chair French
added that if this inserts something horrific into the statutes
he'd hope that the drafter would bring it to the committee's
attention before the bill moves from the Senate.
CHAIR FRENCH found no objection, and announced that Amendment 2
is adopted.
1:58:58 PM
CHAIR FRENCH directed attention to a conceptual amendment in the
form of a work draft and explained that it was a separate Senate
crime bill that had he prepared. It seemed appropriate to
discuss it now, he said. The proposed amendment was circulated
to the interested parties so that the committee could hear from
both sides and have the debate. He expected to hear from the
Department of Public Safety (DPS), the Department of Law (DOL),
and affected law enforcement agencies today. It's controversial,
he warned.
CHAIR FRENCH moved conceptual Amendment 3, labeled 25-LS1554\A,
Luckhaupt.
2:00:03 PM
SENATOR THERRIAULT objected.
CONCEPTUAL AMENDMENT 3
"An Act relating to the preservation of biological evidence."
Section 1. AS 12.36 is amended by adding a new section
to read:
Article 2. Preservation of Biological Evidence.
Sec. 12.36.200. Preservation of biological
evidence. (a) Notwithstanding AS 12.36.010 -
12.36.090, the Department of Law, the Department of
Public Safety, the Alaska Court System, a municipal
prosecutor, or a municipal law enforcement agency
shall preserve all evidence that is obtained in
relation to an investigation or prosecution of a crime
for the period of time that
(1) the crime remains unsolved; or
(2) each person convicted of that crime
remains in the custody of the Department of
Corrections or subject to registration as a sex
offender or child kidnapper.
(b) Each agency required to preserve evidence
under (a) of this section shall preserve the evidence
in an amount and manner that is sufficient to develop
a DNA profile from any biological material contained
in or included on the evidence. An agency is not
required to preserve physical evidence of a crime that
is of a size, bulk, quantity, or physical character
that renders preservation impracticable. When
preservation of evidence of a crime is impracticable,
the agency shall, before returning or disposing of the
evidence, remove and preserve portions of the material
likely to contain relevant evidence related to the
crime in a quantity sufficient to permit future DNA
testing.
(c) Upon written request of a person convicted
of a crime and in custody or subject to registration
under (a)(2) of this section, an agency shall prepare
an inventory of evidence that has been preserved in
connection with the criminal case.
(d) An agency required to preserve evidence
under (a) of this section may destroy evidence before
the expiration of the time period in (a)(2) of this
section if
(1) the agency is not required to maintain
the evidence under another provision of state or
federal law;
(2) the agency mails a certified delivery
of notice of intent to destroy evidence to
(A) each person who remains in custody or
subject to registration under (a)(2) of this section
for that crime;
(B) the attorney of record for each person
listed in (A) of this paragraph;
(C) the Public Defender Agency;
(D) the district attorney or municipal
prosecutor responsible for prosecuting the crime;
(E) the attorney general;
(3) no person who is notified under (2) of
this subsection, within 180 days after receiving the
notice,
(A) files a motion for testing of the
evidence; or
(B) submits a written request for continued
preservation of the evidence.
(e) When an agency is required to produce
evidence required to be preserved under this section
and the agency is unable to locate the evidence, the
chief evidence custodian of that agency shall submit
an affidavit, executed under penalty of perjury,
describing the evidence that could not be located and
detailing the efforts taken to locate the evidence.
(f) If a court finds that evidence was destroyed
in violation of the provisions of this section, the
court may impose an appropriate sanction and order
remedies the court determines to be appropriate.
(g) In this section,
(1) "DNA" means deoxyribonucleic acid;
(2) "evidence" means the contents of a
sexual assault examination kit, and any item that
contains blood, semen, hair, saliva, skin tissue,
fingernail scrapings, bone, bodily fluids, or other
identifiable biological material, and includes
material, whether the material is cataloged separately
or is present on other evidence.
* Sec. 2. The uncodified law of the State of Alaska
is amended by adding a new section to read:
TASK FORCE ON STANDARDS AND TRAINING OF EVIDENCE
TECHNICIANS. (a) There is created in the Department of
Law the Task Force on Standards and Training of
Evidence Technicians. The task force consists of the
following persons appointed by the governor:
(1) the attorney general;
(2) a district attorney;
(3) the public defender;
(4) the director of the officer of public
advocacy;
(5) a municipal prosecutor;
(6) the commissioner of public safety;
(7) a member of the Alaska state troopers;
(8) a chief of a municipal police
department; and
(9) a representative of the Alaska
Innocence Project.
(b) There shall be four ex officio members of
the task force as follows:
(1) the chief justice of the Alaska Supreme
Court;
(2) a member of House Judiciary Committee
selected by the speaker of the house of
representatives;
(3) a member of the Senate Judiciary
Committee selected by the president of the senate; and
(4) the victims' advocate.
(c) Not later than December 31, 2010, the task
force shall
(1) devise standards regarding the proper
collection, retention, and cataloging of evidence, for
ongoing investigations and prosecutions;
(2) recommend practices, protocols, models,
and resources for the cataloging and accessibility of
preserved evidence.
* Sec. 3. The uncodified law of the State of Alaska
is amended by adding a new section to read:
APPLICABILITY. AS 12.36.200, enacted in sec. 1 of
this Act, applies to all evidence in the possession of
an agency listed in AS 12.36.200(a) on the effective
date of this Act for crimes committed before the
effective date of this Act and all evidence collected
on or after the effective date of this Act.
* Sec. 4. Section 2 of this Act is repealed
January 1, 2011.
CHAIR FRENCH explained that the thrust of the amendment is to
preserve evidence for a sufficient period of time to allow
individuals to prove their innocence. The justice system in any
state can go wrong and innocent people get put in prison and
that is not a result that anybody should be willing to live with
when it's not necessary, he said.
2:01:21 PM
BILL OBERLY, Executive Director, Alaska Innocence Project (AIP),
said that AIP's mission is to identify and exonerate individuals
who have been wrongfully convicted and incarcerated in the state
of Alaska. The project is modeled on the New York Innocence
Project, which has successfully resolved about 220 cases, a
number of which were death row cases. He said that he is here
today because AIP believes that this legislation is significant
in bringing the criminal justice system and crime fighting in
st
Alaska into the 21 century.
MR. OBERLY said that the science of criminal justice has seen
great advances, particularly though the use of DNA. Many of the
uses of evidence collected from crime scenes has increased crime
solving, settling claims of innocence, cold-case resolutions,
and identification of serial killers. Currently 25 states, the
District of Columbia, and the federal government have evidence
preservation laws. Exonerating innocent people is an
unassailable goal, but claims of innocence can only be proved if
evidence exists, he said. Also, if an innocent person is
released, that means that a guilty person is out there and that
same preserved evidence will assist in identifying and hopefully
solving the crime.
MR. OBERLY said this legislation is important for legal,
physical, and financial reasons. The most obvious legal reason
is that the evidence is available to exonerate someone who has a
claim of actual innocence. Almost weekly someone is cleared
through the use of evidence that was preserved; he cited a
recent example from Texas. Preserved evidence is also useful in
resolving cold cases. In 1995 Charlotte North Carolina undertook
a comprehensive program to preserve and organize evidence. As a
result the police department said that 15 cases have been
cleared, 14 individuals have been charged with murder, and 12
more cases have been opened for active investigation. Another
benefit is the identification and apprehension of serial
criminals. DNA evidence collected today can be compared to
evidence that has been preserved from other crime scenes to
identify individuals who have committed multiple crimes over
time. "To not take advantage of these advances by preserving
evidence is an incredible waste of the criminal justice
potential," he said.
MR. OBERLY highlighted that this legislation requires evidence
to be preserved under two standards: 1) while the crime remains
unsolved or 2) when the person who was convicted of the crime
remains in custody or subject to registration as a sex offender.
The alternative is to not preserve evidence, thus failing to
solve crimes; denying justice to crime victims; preventing
wrongfully convicted people from proving their innocence; and
leaving the public vulnerable to previously unidentified but
currently identifiable offenders.
MR. OBERLY said that the physical issues can be addressed in
conjunction with the new crime lab bill, which the Senate is
currently considering. "We're talking space here and if we're
building a new crime lab, that is very easily addressed in this
new legislation." Charlotte North Carolina, which had 110,000
residents in 1995 when it started this program, has all its
evidence stored in a 6,700 square foot building. We're not
talking about monumental room or monumental evidence, he said.
The majority are small DNA samples, and this legislation says
that if the piece of evidence is too large, then a small
representative piece will be saved. It's not the case that an
entire car has to be kept. "You just need to keep a little piece
of the upholstery that has the biological evidence on it," he
said. Although beyond the scope of this bill, this is an
opportunity for public safety to consider a centralized storage
facility with statewide cataloging, he added. This legislation
also provides for premature disposition of evidence under
controlled situations, he said. It establishes a way for the
state to balance storage concerns with the loss of potentially
probative evidence. So preservation is not absolute, it can be
overcome if the balance is met.
2:09:53 PM
MR. OBERLY, turning to the fiscal aspect, said that the federal
government believes that evidence preservation is so very
important that it is currently soliciting grants, through the
2004 Justice For All Act, to applicants that can demonstrate
statewide laws or practices that are in place that assure proper
preservation of evidence. If this law passes, Alaska next year
will qualify to apply for a federal grant to help cover the
costs. The expectation is that either this year or next, a grant
proposal will be accepted that will include money to build crime
lab capacity to catalog biological evidence. So this legislation
will provide more economical criminal justice in Alaska, and it
will help the state pay for it through federal grants, he said.
2:11:42 PM
MR. OBERLY characterized the legislation as a winner for
everyone in Alaska. It allows the state to take advantage of the
goldmine of potential justice contained in preserved evidence.
Crimes can be solved, thus enhancing public safety and serving
the victims whose cases were never solved, and the innocent will
no longer need to endure the nightmare of wrongful convictions.
th
The alternative is to condemn Alaska to 20 century crime
st
fighting in the 21 century, leaving it behind the rest of the
country. Failure to pass this legislation takes an important
arrow out of the quiver of Alaska law enforcement and it takes
away one of the only hopes of the wrongfully convicted. The
reliability of the criminal justice system cannot depend on the
serendipitous discovery of evidence. By establishing a
reasonable preservation policy, Alaska will tap into the
potential of preserved evidence and provide Alaskans with the
quality of justice that it would be unconscionable to deny.
2:13:15 PM
DAN HOFFMAN, Chief, Fairbanks Police Department, said he echoes
the concerns that law enforcement administrators have
articulated. Certainly nobody wants innocent people to be
convicted, and everyone understands the power that DNA evidence
affords in terms of convicting and exonerating the right people.
However, his concern relates to the provision that says that an
agency shall preserve all evidence obtained in relation to an
investigation, and the prosecution of a crime for the period of
time that the crime remains unsolved. That is an onerous
requirement because an enormous amount of evidence would need to
be retained. That basically amounts to an unfunded mandate for a
lot of municipalities. "Who down there in Juneau is going to be
sending me the check to add on to my evidence room to
accommodate the expansion that's going to be needed for this?"
he asked.
CHIEF HOFFMAN said he was pleased to hear the prior speaker
address the needed expansion of the state crime lab. Until it is
at the point where it is no longer dealing with a backlog for
current DNA evidence, it's hard for him to support initiatives
that will further burden the state and municipalities. The
proper preservation of DNA evidence is a laudable goal, but this
state has issues that need to be ironed out before that role is
expanded further, he said.
2:16:13 PM
CHAIR FRENCH asked what evidence he saves now, and how he
decides what to save and what to discard.
CHIEF HOFFMAN explained that evidence in unsolved homicides and
sex assaults are retained forever. In any case where biological
evidence may potentially identify a suspect, the evidence is
already saved so he's not sure how much additional burden this
proposal would create. His concern of his is that the language
is far too broad, and sounds like all evidence in every burglary
case needs to be saved.
CHAIR FRENCH asked if requiring retention of all biological
evidence related to homicides or first degree rape cases would
be more in line with what he's already doing.
CHIEF HOFFMAN said yes. "That would be a very strong step in the
right direction." He'd also like to see a mechanism for
municipalities to submit biological evidence for that category
of case to the expanded state crime lab.
2:18:38 PM
JOHN GLASS, Deputy Commissioner, Department of Public Safety,
said he would like to give the conceptual amendment further
study. The potential liability for failure to act is a real
concern. Many of the requirements are current procedure with
respect to retaining evidence that comes into the crime lab. We
like the concept and idea and would like to meet with the
committee over the Interim to work toward an end product that
satisfies all the parties involved, he said.
2:20:31 PM
GARDNER COBB, Captain, Anchorage Police Department (APD), said
he's read the [conceptual amendment] and agrees with the intent.
Putting the wrong people in jail is horrible, but this proposal
raises serious concerns about cost, liability to some employees,
and further overburdening the department's property and evidence
section. APD currently employs 14 people to process up to 48,000
pieces of evidence each year. Currently 169,000 evidence items
are stored in two warehouses that are about 98 percent full on a
weekly basis. Finding room to keep evidence is a struggle
already and expansion is desperately needed. "We strongly
support the expansion of the state lab," he said. Currently APD
is being told that there is no storage room for some DNA samples
that have been sent over for examination so they will be
returned. In those samples there's probably a case or two that
could be solved, he said.
CAPTAIN COBB said that the scope of the proposed amendment is
too broad. He cited the requirement that all evidence that is
obtained in relation to an investigation or prosecution of a
crime shall be retained while the crime remains unsolved. APD
already keeps forever all evidence in cases involving homicide,
sexual assault, and sex abuse of a minor. Another concern
relates to the notification requirement before evidence is
disposed. And who determines what is practical and what is
impractical with regard to retaining samples from large pieces
of evidence, he asked. Also, what will be the fallout when some
defense attorney says that relevant evidence was not retained?
Another concern relates to training; who will pay and where will
that training be held? "The intent of the bill is good; we're
concerned about the funding and how it's going to be
implemented. The scope seems to be pretty wide," he said.
2:24:05 PM
GREGG STEWART, Supervisor, Anchorage Police Department Evidence
Section, said the evidence room is overcrowded. He explained
that all homicide as well as adult and child sex crime evidence
is already kept indefinitely, and he is concerned about the
requirement to retain evidence from all unsolved crimes. The
crime lab can't possibly process all the samples it has from
cases with known suspects, let alone the many it has with
unknown suspects, he said.
MR. STEWART referred to the training requirement and said that
APD personnel already receive that training. Also, APD has
mandatory evidence collection and packaging standards based on
current state and national forensic policies. DNA evidence is
treated appropriately. Because of the significant number of
items that are already retained, this will potentially require
doubling the storage space for evidence. Storage requirements
for homicide cases vary from a few items that fit in a small box
up to a container full. The requirement to send inventory
notices to all affected parties by certified mail is
troublesome. Currently APD sends those notices by certified mail
or by fax depending on where the individual lives or is
incarcerated. The state corrections system won't accept
certified mail on behalf on an inmate and the federal
corrections system will only accept certified mail. Finally
there is concern about individual liability with respect to
destroyed evidence.
2:29:56 PM
CHAIR FRENCH asked if restricting the proposal to homicide
investigations and prosecutions would comport with current
practice.
MR. STEWART said yes.
2:30:37 PM
ORIN DYM, Forensic Laboratory Manager, State Crime Laboratory,
Department of Public Safety, described how evidence is received,
processed and retained. Each agency submits evidence that is
entered into the screening section for the purpose of locating
and identifying potential sources of stains or material to go on
for DNA analysis. Typically cuttings or swabs are taken and
moved on to the DNA unit and the bulk of the evidence is
returned to the submitting agency. The lab barcodes and retains
all those cuttings and swabs and as a result, space has become
an issue. There is some discussion about returning the cuttings
and swabs to the submitting agency since the lab is for evidence
analysis, not evidence storage.
2:33:16 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration, said he can't comment on the proposed amendment
because he hasn't seen it, but he echoes the concerns Mr. Oberly
articulated. "One of the most devastating things that can happen
in the justice system is that an innocent person would be
convicted. … Mistakes do happen so what can be done to promote
undoing the mistakes that…have happened, I believe is worth the
effort," he said.
CHAIR FRENCH, hearing and seeing no further testimony, moved an
amendment to Conceptual Amendment 3.
AMENDMENT TO CONCEPTUAL AMENDMENT 3
Page 1, line 8 before "investigation"
Delete "an"
Insert "a homicide"
Page 1, line 9
Delete "crime"
Insert "homicide"
SENATOR McGUIRE asked if the committee wanted to consider sex
crimes as well as homicides.
CHAIR FRENCH suggested doing one thing at a time. He asked if
there was objection.
SENATOR THERRIAULT asked if this purports to the way the system
operates now with respect to the information that is being
retained.
CHAIR FRENCH said yes; Chief Hoffman, Mr. Stewart and Mr. Dym
from Anchorage all testified that homicide evidence is kept
indefinitely.
2:36:39 PM
SENATOR WIELECHOWSKI asked why rapes aren't included.
CHAIR FRENCH said he's addressing one thing at a time. Finding
no objection, he announced that the amendment to Conceptual
Amendment 3 is adopted.
2:37:06 PM
SENATOR McGUIRE observed that a number of statutes already
pertain to sex offenses so a definition here would need to be
specific.
CHAIR FRENCH agreed there's a wide range of activity including
rape, child pornography, touching, and penetration.
SENATOR WIELECHOWSKI said this can be revisited and he would
suggest including only the most heinous acts now. He doesn't
want to do something that will cost the state and municipalities
potentially millions of dollars.
2:38:14 PM
CHAIR FRENCH said a benefit of the amendment is that it
envisions a task force on standards and training of evidence
technicians. It would put the attorney general, the district
attorney, the public defender, the office of public advocacy,
prosecutors, and public safety together to consider how to move
forward with the idea. We heard that law enforcement wants to do
this because it doesn't want to convict innocent people, but
there is concern about cost, mechanics of how this works, and
liability when evidence is destroyed by mistake.
SENATOR McGUIRE questioned creating a task force on just the one
issue. The issue of the crime lab needs work, but the idea of
keeping evidence for innocence purposes is just one part.
CHAIR FRENCH expressed the view that this relatively new concept
to the statutes will require some implementation, and the best
way to make that come about is to force the stakeholders to sit
down and talk to one another in an official setting.
He observed that the drafters would need to clean up the
amendment somewhat, since paragraph (2) on page 1, refers to
registration as a sex offender and that probably would not apply
to individuals convicted of homicide.
2:41:58 PM
SENATOR McGUIRE said she agrees that it's important to look at
the wrongly convicted, but it's also important to consider the
victims of crime who are suffering, too, under the system. She
doesn't have language to offer now, but she would encourage the
Chair to expand his thinking beyond the one problem.
CHAIR FRENCH agreed with her point and highlighted that the task
force does include a victims' advocate as an ex officio member.
He read paragraphs (1) and (2) on page 4, that outlines work
that the task force shall do, and acknowledged that it doesn't
fully address her concern.
SENATOR THERRIAULT observed that the list of task force members
is fairly specific with the exception of the victims' advocate.
He understands which advocate it refers to under Sec.24.65.110,
but perhaps that should be specified.
At ease from 2:45:13 PM to 2:45:59 PM.
CHAIR FRENCH said the discussion today has convinced him that
this needs more work, and it can be done as a standalone bill.
SENATOR THERRIAULT withdrew his objection
CHAIR FRENCH withdrew Conceptual Amendment 3. We'll explore the
idea in more depth at another time, he said.
CHAIR FRENCH stated that the governor's crime bill, as amended,
is before the committee.
2:46:42 PM
SENATOR McGUIRE motioned to report CSSB 234, Version \E, from
committee with individual recommendations and attached fiscal
note(s).
CHAIR FRENCH announced that without objection CSSB 234(JUD), 25-
GS2038\E, as amended, is moved from the Senate Judiciary
Committee.
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:47:44 PM.
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