SB 135-CONTINUANCES IN CRIMINAL TRIALS; VICTIMS  1:44:26 PM CHAIR FRENCH announced the consideration of SB 135. LILA HOBBS, Staff to Senator French, introduced SB 135 as follows: When Alaska's Constitution was amended in 1994 to add section 24 to article 1, entitled the "Rights of Crime Victims," the state established important groundwork to provide greater equity within our judicial system. I would like to read two of the eight provisions that are enumerated in section 24. Crime victims, as defined by law, shall have the following rights as provided by law: the right to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process; in addition, crime victims shall have the right to timely disposition of the case following the arrest of the accused. While both of these provisions are vital steps for strengthening victims' rights, there are currently no statutes in place requiring their implementation. The minor changes to statutes and court rules in SB 135 would provide a means to enforce these critical rights. Repeated delays prevent victims from reaching emotional, physical, and financial closure from the trauma that they suffered as a result of the crime perpetrated against them. Delays in prosecution can also affect the availability of witnesses, a victim's ability to recall important details, and they can create other impediments to a successful trial. What is particularly important about SB 135 is that it gives victims the right to be notified of any substantial delays, and also allows them to voice their position on a motion for the delay. Before the motion has been ruled on, the judge must consider the victims' position and how they would be affected. Therefore, this bill addresses the fair and respectful treatment of crime victims while ensuring a more timely disposition of their case. Clearly, these additions will enhance the accountability, transparency, and equity of our judicial system. MS HOBBS provided the following sectional analysis: Section 1 amends AS 12.61.010(a)(2) by adding a provision to the rights of crime victims, providing that a victim has a right to be notified by the appropriate law enforcement agency or the prosecuting attorney of any request for a continuance that may substantially delay the prosecution. Section 2 amends AS 12.61.015(a) by modifying the duties of a prosecuting attorney to include the duty to inform the victim of a pending motion that may substantially delay the prosecution, and inform the court of the victim's position on the motion to continue. Section 3 amends Criminal Rule 45(d)(2), relating to the authority to grant a continuance in a criminal case. This section adds a provision that requires that a court, when considering a motion to grant a continuance, may do so only after considering the victim's interest in a ruling by the court on the motion to continue. This section references the new section of Criminal Rule 45 added in Section 4. Section 4 amends Criminal Rule 45, by adding a new subsection (h) entitled "Victim's Interest in Ruling on Motion to Continue." It provides that before ruling on a motion to continue in a case involving a victim of crime, the court must consider the victim's position on the motion to continue, and the effect that a continuance would have on the victim 1:49:55 PM SENATOR COGHILL asked for the practical meaning of "consider the victim's position." CHAIR FRENCH said he would defer to the court representative, but his expectation was that the judge will pause to formally consider the effect on a victim. SENATOR COGHILL said he'd also like to hear about the protocol for notification. CHAIR FRENCH responded that the folks who work in this area can address the question, but the process does not come to a halt when a victim cannot be notified. 1:51:37 PM LISA MARIOTTI, Policy Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), stated that the saying, "Justice delayed is justice denied." is especially true for victims of domestic violence and sexual assault. It takes tremendous courage, faith, and belief for a survivor to prepare to confront their perpetrator in court, and all too often their courage and hopes are dashed by endless delays in seeking justice. This can lead to a loss of hope and disappointment in the criminal justice process. SB 135 will ensure that victims' voices are heard, and that the impact of substantial delays in seeking justice will be considered. Equally important, it will give full force and effect to the constitutional rights of all crime victims to a speedy trial. 1:53:48 PM VICTOR KESTER, Executive Director, Alaska Office Victims' Rights (OVR), stated that SB 135 furthers the spirit of the Alaska State Constitution, which mandates crime victims be treated with dignity, respect, and fairness. It also clarifies the constitutional right to a timely disposition of a case. Fundamentally, SB 135 amplifies the crime victim's voice before the court regarding a delay in the criminal justice process. This will improve the administration of justice and help victims realize dignity, respect, and fairness in the criminal justice system. It stands to eliminate unnecessary delay that often results in undue hardship or injury to crime victims trying to cope with the lengthy prosecution of a criminal case. MR. KESTER said the OVR stands ready to work with the Legislature and criminal justice agencies to promote the interests of justice and further the principles of dignity, respect, and fairness for Alaska crime victims. CHAIR FRENCH stated that before moving the bill he'd like the committee to hear from Nancy Meade who was reviewing the average period of time it takes to get a felony case to trial in Anchorage. 1:57:50 PM SUSAN SULLIVAN, Executive Director, Victims for Justice, stated that SB 135 improves the standards of notification to crime victims in requests for continuance, and reinforces their constitutional rights to be present at proceedings to address the court and see timely disposition of their case. By requiring the court to consider the victim's perspective, the bill creates a mechanism through which these rights can be more consistently realized. She explained that Victims for Justice advocates for victims of violent crimes, including surviving family members of homicide victims. In this role they've seen continuances provided to defendants in criminal cases for insufficient and sometimes disingenuous reasons, with no consideration given to the victims. Some cases have taken more than a decade to go to trial because of the number of continuances that were granted. Such long delays can work to the unjust benefit of the accused and the serious disadvantage of victims. These are clearly cases of "Justice delayed is justice denied." For many victims the end of the trial is a landmark after which they can begin to recover, and unnecessary continuances only delay the healing process. It's appropriate for the court to extend the benefit of the doubt to defendants because it is their liberty that is at stake. However, the court often fails to take into consideration the constitutional rights of victims in these situations. SB 135 puts the victim in the picture and supports the judge who considers the victim when deciding whether or not to grant a continuance. SB 135 is a modest change to existing statutes and court rules, but in a very important way it brings balance to the justice system. CHAIR FRENCH thanked Ms. Sullivan for talking about the tension between this bill and the defendant's presumption of innocence and right to a speedy trial. 2:02:01 PM NANCY HAAG, Executive Director, Standing Together Against Rape (STAR), stated strong support for SB 135 as it recognizes the rights of crime victims. She explained that STAR works with victims of sexual assault, and has a front-row seat to the anguish a victim feels as they prepare to testify in court against the person who assaulted them. Many victims do not feel as though they are a survivor until the trial is over and the person who assaulted them is sentenced. The build-up to trial is emotionally traumatizing, and the victim pays the toll each time a hearing is continued. SB 135 may help shorten the time between arrest, conviction, and sentencing, but more importantly it will place the victim at the center of the criminal justice effort. Victims call on their civic duty when they report, and the favor must be returned by offering a timely disposition of the case. This will help victims to finally put the assault behind them, knowing justice has been achieved. At that point, a deeper depth of healing may finally begin. 2:04:50 PM TRACEY WOLLENBERG, Deputy Director, Appellate Division, Public Defender Agency, Department of Administration (DOA) expressed concern with the compulsory language in SB 135, particularly in sections 3 and 4 regarding Criminal Rule 45. If the language is strictly construed and the victim is unavailable, the court may be required to grant the very continuance that the bill is designed to prohibit so it can ascertain the victim's position. As has been noted, the courts are already constitutionally required to take into account the victim's interest, the victim's right to be treated with dignity, and to a timely disposition. The language compelling the courts to ascertain the victim's position will potentially undermine these concerns. SENATOR PASKVAN asked if this could back the court into a procedural corner; if the judge can't grant a continuance, it would increase the likelihood that he or she would have to grant a dismissal. MS. WOLLENBERG replied that was one potential unintended consequence, and another was increased post-conviction relief litigation if the defendant wasn't given sufficient opportunity to litigate issues. CHAIR FRENCH suggested she keep in mind that the procedural posture is that defendant is trying to push the trial date back. The provision would go into effect after the defendant has asked for a continuance, after which the judge would decide whether or not to grant the continuance. He added that a provision would probably be added to the bill to address the problem of what to do when a victim can't be contacted. 2:10:49 PM KAREN FOSTER, victim advocate, described the tragedy of having her 18-year-old daughter, Bonnie Craig, brutally raped and murdered. The family waited 12 years for the killer to be identified, and was then re-victimized by the State of Alaska. The killer was identified by a DNA match in November 2006, and was convicted and sentenced almost 5 years later on October 31, 2011. The first trial date was set for September 2008 to ensure adequate time to prepare, and to eliminate any reason for a continuance. Very late in the process the defense requested a continuance, and the judge set a new date for January 5, 2009. The defense couldn't meet that date either, and the judge again granted a continuance to May 11, 2009. Before the case came to trial a new defense attorney was appointed causing further delay. The judge knew the first defense attorney was incapable of handling the case, but had no effective means to control the case. SB 135 will help identify problems earlier and help judges determine if a continuance is actually unavoidable. Alaska law needs to be changed so that the constitutional rights of crime victims are respected and there is timely disposition of the case. Delays re-victimize the victims. It's time to balance the scales of justice, she stated. 2:18:50 PM ANNIE CARPENETTI, Attorney V, Criminal Division, Department of Law (DOL), said it's hard to disagree with what's been said today but criminal prosecutions can be problematic and take a long time. Judges generally take into account the victim's point of view in granting continuances, but they have to balance that against the possibility of sending somebody to trial who isn't ready. A conviction under that circumstance would be subject to appeal, and that isn't good for anybody. MS. CARPENETI said she had practical concerns with Section 1. It gives crime victims the right to notice of a continuance in appeals [that may substantially delay the prosecution]. On average a brief on appeal takes 270 days, so nearly every appeal would be considered a substantial delay. Crime victims are not currently notified when there's a request for a continuance in an appellate matter, and the Office of Special Prosecution and Appeals does not have paralegals to do notifications. This provision would mean giving notice when it is not currently given, by an office that doesn't have people who give notice in the appellate arena. She stated agreement with the defense bar that there should be an escape valve to accommodate those victims who do not want to be notified. She offered to work with the committee to develop solutions to make the bill more practical. "On the whole though, we've always agreed that victims have the right to be treated with dignity," Ms. Carpeneti concluded. CHAIR FRENCH said there's generally some period of time between when the defense attorney is ready and the case actually goes to trial, and this measure ratchets down on that leeway. He said he recognizes that there have to be some escape hatches and he's sensitive that it will fall on the prosecutor to notify the victim and find their position. MS. CARPENETI responded that DOL does notify the victim when the trial date is set and when it's changed. CHAIR FRENCH commented that this is just one more message, although continuances tend to happen more frequently than a sentencing or trial date. MS. CARPENETI reiterated concern with the practical matter of giving notice on appeals. CHAIR FRENCH said there may be a way to exempt it altogether or express it differently. 2:24:40 PM {KEVIN HIGGINS, Attorney, Juneau, AK, expressed concern with the unintended consequences of the compulsory language in SB 135,{ and the potential for an ineffective assistance of counsel claim if a request for continuance was denied. He opined that continuances increase the pain tenfold to the victim and the increase costs as well, particularly to the indigent defense bar. He said Court Rule 45(d)(2) has language that allows the victim to be heard and takes into account the public interest in prompt disposition of criminal offenses, and he had never heard a judge say he or she didn't want to hear from a victim that was in the courtroom, or deny a continuance in a bail hearing if the prosecution wanted more time to notify a victim. 2:28:26 PM CHAIR FRENCH closed public testimony and held SB 135 in committee.