Legislature(2013 - 2014)HOUSE FINANCE 519
04/14/2014 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB108 | |
| SB127 | |
| SB169 | |
| HB287 | |
| HB316 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 64 | TELECONFERENCED | |
| + | SB 108 | TELECONFERENCED | |
| + | SB 178 | TELECONFERENCED | |
| + | SB 129 | TELECONFERENCED | |
| + | SB 127 | TELECONFERENCED | |
| + | SB 169 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 316 | TELECONFERENCED | |
CS FOR SENATE BILL NO. 108(JUD)
"An Act relating to the confidentiality of certain
records of criminal cases; and providing for an
effective date."
1:43:36 PM
SENATOR FRED DYSON, SPONSOR, remarked that the legislature
infrequently dealt with civil liberties topics. He believed
many members had handled Second Amendment issues well and
that First Amendment items would be addressed on a more
frequent basis. He relayed that the bill pertained to the
Fourth, Fifth, Sixth, and Fourteenth Amendments. He
discussed that in comparison to other states Alaska had the
most complete CourtView system [the Alaska Trial Court's
online and publicly accessible database]. He detailed that
most states had the equivalent of CourtView in their city
or county, but not statewide. The bill would strengthen the
privacy and liberty interests of persons when charges were
dismissed or acquitted by removing records from CourtView.
He acknowledged that some individuals who were arrested
were guilty, but were released due to insufficient
evidence. He relayed that over 9,000 of the 29,000 arrests
for misdemeanor offences the prior year had resulted in
dismissal. He believed there had been around 7,000 felony
arrests, with 1,700 dismissals.
Senator Dyson continued that under the current system, the
dismissed cases remained on CourtView in perpetuity. The
CourtView system had been implemented in 2004 and he
guessed there were approximately 60,000 people listed in
the database. He noted that despite the clear notification
that an arrest was not a guarantee of a person's guilt, the
listing of a person's name on the website made it more
difficult to obtain employment and to rent a home. He
stated that the process of removing a person's name from
the site was structurally defective. He detailed that a
police chief or equivalent were required to approve the
removal of a name from the website. He believed that
requiring the arresting department to remove the name was
counterintuitive and exposed the department to potential
liability. He relayed that if the first attempt to have a
person's name removed was unsuccessful, their next option
was to take the issue to court. He stated that Alaska's
statutes were clear that it was incumbent upon the accused
to prove they had been wrongly arrested.
1:47:49 PM
Senator Dyson stressed that the practice was contrary to a
person's constitutional right to innocence before proven
guilty. He believed there would always be pragmatic reasons
to trample on civil and human rights; however, legislators
had taken an oath to preserve the constitutional
provisions. He opined that the default should land on the
side of civil liberties and the Bill of Rights. He asked
his staff to address the bill's sectional analysis.
Co-Chair Stoltze noted that there had previously been some
public testimony on the subject matter in a hearing on a
separate crime bill. The subject matter had subsequently
been removed from the other bill to be dealt with as a
single issue.
CHUCK KOPP, STAFF, SENATOR FRED DYSON, read from the
sectional analysis (copy on file):
Section 1
Provides legislative intent directing the Court, to
the extent practicable, to treat as confidential
records of criminal cases disposed of before the
effective date of the Act by acquittal of all charges,
dismissal of all charges, or acquittal of some charges
and dismissal of remaining charges, to the same extent
that records are held confidential by this bill, under
AS 22.35.030.
Section 2
Amends AS 22.35 by adding a new section, AS 22.35.030.
Records concerning criminal cases resulting in
acquittal or dismissal confidential.
This section establishes that a court record of a
criminal case is confidential if 120 days have elapsed
from the date of acquittal or dismissal and (1) the
person was acquitted of all charges filed in the case;
(2) all charges against the person have been dismissed
by the prosecuting authority; or (3) the person was
acquitted of some of the charges in the case, and the
remaining charges were dismissed.
Provide exceptions for access to information made
confidential for state agency employees responsible
for health, safety, welfare, or placement of a child,
a person with a physical or intellectual disability,
or a person with a mental illness; employees that
protect other vulnerable citizens, and state criminal
justice information network users. The Department of
Health and Social Services will adopt regulations to
administer these exceptions.
Section 3
Establishes the Applicability of the Act to criminal
charges concluded on or after the effective date of
the Act by dismissal or by acquittal of the defendant.
Section 4
Establishes the effective date of the Act as October
1, 2014.
Senator Dyson communicated that the information would
remain available to police, the state, and the national
record; the bill would remove public records of dismissed
or acquitted cases after 120 days.
Co-Chair Stoltze asked for detail about the law related to
the police chief. Mr. Kopp pointed to the sealing of
criminal justice information under AS 12.62.180. He relayed
that a criminal justice agency may seal only the
information that the agency was responsible for
maintaining. A person may submit a written request to the
head of the agency responsible for maintaining past
conviction or current offender information. The two issues
required to be proven beyond a reasonable doubt were
mistaken identity or false accusation; the decision of the
agency head was the final administrative decision on the
request. The appellant bore the burden of proof and if they
did not agree with the agency decision their next option
was to appeal to the court. He read from the statute that
"a person about whom information is sealed under this
section may deny the existence of the information if it is
in fact sealed."
Co-Chair Stoltze asked a question related to a current
court case [specifics on the case were not provided]. Mr.
Kopp replied in the affirmative. Co-Chair Stoltze surmised
that the Municipality of Anchorage had made the decision to
litigate. He stated that the municipality had the ability
to correct an action, but chose to litigate instead. Mr.
Kopp agreed.
1:54:29 PM
Vice-Chair Neuman referred to a prior request from the
Office of Public Advocacy (OPA) to seal files related to
decreasing workload. He wondered if the bill addressed the
issue. Mr. Kopp replied that the bill did not pertain to
lowering the OPA workload.
Vice-Chair Neuman clarified his interest in the sealing of
cases. Mr. Kopp answered that the bill was strictly focused
on individuals with acquitted or dismissed charges who
remain on CourtView.
Senator Dyson believed it would be helpful to hear from the
courts. He noted that the court system was taking some
action on its own related to the records under discussion.
Co-Chair Stoltze remarked that many individuals did not
want to advertise their efforts to have a charge removed
from their record.
1:57:00 PM
NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, relayed
that the court system was neutral on the bill, but she
appreciated the sponsor's willingness to work with the
agency. She communicated that the bill would make dismissed
or acquitted cases confidential in electronic and paper
form (the bill did not include plea bargained cases). The
cases would remain in the state's public safety database
and would be accessible to arresting officers and the
district attorney's office. The legislative intent asked
the department to make the change retroactively; the court
system could achieve the goal without a fiscal impact note.
She stated that it was possible for the court system to
take records off of CourtView retroactively; it would be
significantly more burdensome to make archived hardcopy
files confidential.
Co-Chair Stoltze asked hypothetically if the bill would
remove O.J. Simpson case records from CourtView had the
events surrounding the case occurred in Anchorage. Ms.
Meade replied that the case would be covered by the
legislation given that all charges had been acquitted; the
criminal case would be removed from CourtView 120 days
after acquittal under the legislation.
Co-Chair Stoltze thought extreme examples could help frame
an issue. He mentioned an example related to a false
stalking accusation.
Ms. Meade replied that stalking was typically a civil
protective order and would not be covered under the bill.
She noted that the court was separately looking at a court
rule that would impact civil actions where the court found
no probable cause at an initial hearing. The bill before
the committee only covered criminal cases.
Co-Chair Stoltze referred to the conviction and later
exoneration of Mechele Linehan and asked if the case would
apply under the legislation. Ms. Meade replied that because
the case had not been dismissed by the prosecutor it would
not be covered under the bill and would not be
confidential.
2:00:48 PM
Representative Gara asked for verification that plea
bargained cases would remain on CourtView. Ms. Meade
replied in the affirmative.
Representative Gara asked for verification that the bill
only dismissed records for cases when the prosecution fully
dismissed the charges. Ms. Meade responded in the
affirmative.
Representative Gara asked for verification that a person
would end up on CourtView if they continued to commit
crimes and were convicted like O.J. Simpson. Ms. Meade
replied in the affirmative.
Co-Chair Stoltze asked for a description of the
administrative process. He asked about a process under
deliberation by the court system. Ms. Meade referred to a
proposed court rule that was underway. She discussed that
the court maintained the Alaska Rules of Court; there were
committees responsible for recommending changes and the
Alaska Supreme Court was ultimately in charge of making
changes to the rules. She elaborated that currently the
Supreme Court was considering (and would go out for public
comment) an amendment to its existing rule about items that
did not appear on CourtView. She detailed an administrative
rule designated items that could not be on CourtView, which
was slightly different than designating a case as
confidential. Anything the legislature deemed confidential
did not appear on CourtView including child in need of aid
cases, protective proceedings such as guardianships, and
juvenile delinquency cases.
Ms. Meade communicated that additional categories not
posted on CourtView included the names of children in
domestic relations cases (these were not confidential in
paper form), social security numbers, and victim addresses.
The court was amending the administrative rule to include
other items it found problematic when listed on CourtView.
She pointed to a case where a woman was arrested but no
charging document was filed; the case was not covered by
the bill, but it would be covered by the forthcoming court
rule that would remove anything where an arrest had taken
place but no charging document had been filed. She
explained that the situations were not covered by the rule
because they had not yet become a criminal case. The court
was also considering adding situations where no probable
cause had been found at an initial hearing, which sometimes
happened with stalking protective orders or other
protective order applications. The rule was going out for
public comment for wide circulation and the court was
expected to act within the next 45 days.
2:04:32 PM
Co-Chair Stoltze asked for verification that his
constituents who had testified in the past would be covered
under the administrative protective order, but not under
the bill. Ms. Meade referred to testimony related to Nancy
Means and replied in the affirmative.
Co-Chair Stoltze speculated that when an out-of-state
settlement was won against the municipality it would be
sealed as well. Ms. Meade clarified that people could ask
to have a confidential case made public. She elaborated
that the court system's case records were not considered
criminal justice information. Currently, the only way to
remove something from CourtView was through the court
system. She detailed that there was a court rule to seek to
have cases made confidential that otherwise were not and to
have confidential cases made public; it was the mechanism
required to remove something from CourtView.
Co-Chair Stoltze asked if the process was initiated by the
person wishing to have their name removed from the site.
Ms. Meade replied in the affirmative.
2:06:21 PM
CATHERINE STONE, DIRECTOR, PUBLIC HOUSING DIVISION, ALASKA
HOUSING FINANCE CORPORATION (via teleconference), spoke in
support of the bill. She relayed that the corporation
initially had concerns about the bill related to its
ability to use CourtView to research applicants' criminal
records; however, it ultimately supported the legislation
due to the way it would affect people participating in the
Alaska Housing Finance Corporation (AHFC) Housing Choice
voucher program. She detailed that the corporation provided
approximately 4,600 vouchers per month to families in 16
locations throughout the state. The recipients passed a
federally required screening process and were subsequently
issued a voucher in order to find a landlord and home to
rent; the voucher paid a portion of the rent and the
corporation provided the additional payment. She
communicated that sometimes people who had an old arrest
that had never resulted in a conviction experienced a
barrier to renting because CourtView was used as a
screening tool. She elaborated that even though the arrest
had not resulted in a conviction, the record on CourtView
many times prevented individuals from renting. Program
recipients were given an initial 60 days to find a unit,
which could be extended to a maximum of 120 days per
federal law. She remarked that it was a shame when
qualified individuals were not able to locate a rental
based on prior history or behavior that may not have
resulted in a conviction. She believed the bill would allow
people who may have made a mistake in the past to have a
better opportunity to find housing.
Co-Chair Stoltze surmised that it would help the AHFC
clientele to secure housing if landlords did not know about
prior activity. Ms. Stone replied in the affirmative. She
elaborated that individuals on the sex offender list or
with violent or drug related convictions did not qualify
for the AHFC program. Once the individual was approved in
the program screening process they should be able to find a
home; however, sometimes an old arrest was used as a
screening tool by landlords which prevented them from
finding a rental.
2:10:05 PM
JAMES MOONEY, SELF, ANCHORAGE (via teleconference),
testified in support of the bill. He spoke about how a
false sexual assault accusation in 2009 had impacted his
life. He stated that his ex-fiancé had moved from the state
with their daughter and had not seen his daughter since. He
had lost his job as a result of the experience. He had been
acquitted, but had never been able to obtain another
management job due to the records on CourtView. He spoke to
challenges securing work. He stated that he deserved to
have his life back, had never hurt anyone, and had not done
anything wrong. He pleaded with the committee to help
provide him with a fighting chance. He wanted his daughter
to know he loved her.
Co-Chair Stoltze appreciated Mr. Mooney's testimony.
2:14:03 PM
JAMIE ROGERS-JENKINS, SELF, TWO RIVERS (via
teleconference), spoke in support of the legislation. She
believed the bill represented a civil liberties issue and
could not thank the sponsor enough for carrying the bill.
She opined that the bill did not go far enough. She
believed people used CourtView as a screening tool for jobs
and housing and that people did not follow through to
determine what had actually happened. She stated that
people had a "where there's smoke there's fire" mentality
that could not be avoided. She used AHFC testimony as an
example and stated that the testimony had assumed an
individual may have done something wrong in the past, but
had not been convicted of a crime. Although she supported
the bill she believed it should include expungement. She
opined that the bill should include plea bargained cases.
Ms. Rogers-Jenkins stressed that the only cases that should
appear on CourtView should be those that resulted in a
conviction. She stated that many people had pled to
something they had not done or to a lesser charge because
it was closer to something that actually happened. Reasons
for taking a plea bargain could include fear, time, and
expense. She believed extreme examples like O.J. Simpson
should be avoided. Additionally, she felt that restraining
orders were abused and should not be listed on CourtView.
She spoke to a case she had taken a plea to; she stated she
had not committed the crime and there had been no
investigation. She believed the preferable remedy was
adequate investigation and no overcharging with the intent
to instill fear and gain conviction. She would support a
state funded campaign to let people know of the
occurrences. She stated that police were not always
truthful. She stated that the Office of Victims' Rights was
the primary opponent of the bill and that it did not
acknowledge various abuses. She asked the committee to pass
the bill.
2:22:13 PM
RICK ALLEN, DIRECTOR, OFFICE OF PUBLIC ADVOCACY, PALMER
(via teleconference), testified in support of the bill. He
addressed an earlier question by Vice-Chair Neuman. He
discussed that several years earlier the Public Defender
Agency had changed its policy related to sealing files
internally; the change had taken place in effort to reduce
the number of conflicts and the number of criminal cases
that went to OPA. He spoke to his experience as an
attorney. He had seen many examples of individuals charged
with theft or robbery; the cases had been appropriately
dismissed by a prosecutor when the defendant had been able
to prove their innocence. He stated that the allegation was
currently recorded on CourtView indefinitely regardless of
a person's innocence. He believed there was an unintended
consequence where the government was punishing individuals
without having proved them guilty of anything. He
understood that it had never been the intent of CourtView.
He stated that the presumption of innocence and the burden
of proof were important bedrocks in the American system. He
believed the bill would strike a good balance between a
person's right to privacy and liberty and the public's
right to important information.
2:25:26 PM
DEANNA SMITH, SELF, ANCHORAGE (via teleconference),
testified in opposition to the bill. She spoke to her
personal experience. She was currently staying in a safe
house. She stated that if she had known about the ability
to look on CourtView it would likely have prevented her
current situation. She stated that public access to the
records would provide the public with information about a
person and would inform them about a possible behavioral
pattern. She had used CourtView to determine that the
person her daughter had begun dating had an unlawful past.
She implored the committee not to pass the bill.
Co-Chair Stoltze appreciated Ms. Smith's courage in her
testimony.
2:28:29 PM
CARMEN GUTIERREZ, SELF, ANCHORAGE (via teleconference),
spoke in strong support of the bill. She spoke to her
extensive work history with the criminal justice system and
as former deputy commissioner for the Department of
Corrections. She stated that currently every person charged
with an offense had a permanent public record of the arrest
and charge. She detailed that in felony cases there was
also a statement of the alleged factual details
accompanying the charging document. The person's name and
the facts of the charge remained public even when charges
were dismissed or after a jury decided on an acquittal. An
arrest often became synonymous with conviction in the minds
of those doing an inspection when the arrest continued to
remain public information. She stressed that the records
greatly impeded a person's ability to find employment, to
rent an apartment, and to live a life free from
stigmatization for a crime they were never convicted of.
Ms. Gutierrez relayed that police officers tasked with a
tremendous amount of work were required to make snap
decisions when deciding it was more likely than not that a
crime had occurred. The soundness of an officer's decision
often depended on the experience of the officer and their
perceived need to diffuse a difficult situation. She
elaborated that after a person was arrested and charged a
prosecutor had more time to review the merits of the case;
in some cases upon more careful review and with the benefit
of additional facts, the prosecutor determined that a
charge did not merit prosecution and that it should be
dismissed. However, the individual arrested was forever
stigmatized by the arrest. She noted that close to 1,300
state felony cases and 9,500 misdemeanor cases had been
dismissed in FY 13. She communicated that cases were
dismissed for many reasons, but often due to lack of
evidence, misidentification, no crime committed, and other.
She stressed that many people were arrested even though
they never committed a criminal offence. The constitutional
right to due process of law was intended to protect
individuals from being treated as convicted persons without
first being afforded certain procedural safeguards. She
believed it was the way it should be. She submitted that it
was the state's responsibility to uphold the criminal
justice system.
Ms. Gutierrez spoke to her prior work as an attorney and
her oath to uphold the constitution. She had concerns about
the underlying premise of a letter addressed from Office of
Victims' Rights to the legislature (copy on file). She
believed that the premise was that something less than
innocence should be insinuated each time an Alaskan was
arrested even when the charge was later dismissed. She
detailed that every day judges were required to tell every
jury convened to hear a criminal case that the mere fact of
an arrest and charge could not be used as any kind of
evidence of guilt; however, CourtView information was
causing people to be judged by an arrest. The system
required criminal conviction. She stressed that an arrest
and charge should not tarnish the reputation of an Alaskan
citizen. She thanked the sponsor for introducing the
legislation.
2:35:04 PM
QUINLAN STEINER, DIRECTOR, PUBLIC DEFENDER AGENCY,
DEPARTMENT OF ADMINISTRATION (via teleconference), spoke
about the legal analysis involved in charging an individual
and sustaining a charge. He mentioned the idea that the
probable cause standard and a grand jury indictment was
sufficient to conclude when a person was guilty. However,
he stated that the probable cause and grand jury indictment
standard was only about concluding when unexplained or
uncontradicted items merited going forward on a case. He
stated that an important part of the legal analysis was
that once an investigation continued, the initial facts
were explained or contradicted in some cases. He relayed
that the screening process of probable cause was not
sufficient evidence for conviction, but was about providing
sufficient evidence to move forward on a case. He stated
that "not guilty" meant not guilty in the criminal trial
process. He remarked that there were many cases where
charges were dismissed and collateral consequences were
significant and life-long.
2:37:42 PM
Representative Gara asked for verification that only a
prosecutor presents evidence before a grand jury. Mr.
Steiner concurred. He added that a grand jury was a secret
and sealed proceeding in which only a prosecutor presents
evidence; defense attorneys were not permitted to enter the
proceedings.
2:38:40 PM
MARY GEDDES, SELF, ANCHORAGE (via teleconference), spoke in
support of the legislation. She remarked on her 28 years of
criminal law experience in Alaska. She read from a prepared
statement (copy on file):
Senate Bill 108, introduced by Senator Dyson, provides
a simple and sensible answer to an important question.
What should happen with the record of a state court
criminal case when no convictions were obtained and
the case is now closed?
Under the current language of SB 108, the approach is
straightforward. Four months after such a case is
closed, the court record is designated as
confidential. This means, simply, that the court
record is no longer offered for general public
viewing.
Many of you have heard the term, expungement. In the
majority of states, expungement is an available remedy
for arrests and other nonconviction records.
Expungement typically means the destruction of a
record. But Alaska does not have an expungement
statute. SB 108 provides a less drastic remedy than
expungement. SB 108 would not require the destruction
of court records. Nor does it impede or unnecessarily
burden law enforcement.
How often does it happen that a criminal case filing
ends with a dismissal and no conviction? More
frequently than you might imagine. In the last fiscal
year alone, approximately 7,563 misdemeanor and 945
felony cases were closed because of dismissals by
state prosecutors. In addition, approximately 100
felony and misdemeanor cases were closed as a result
of acquittals.
The reason for making nonconviction court records
confidential is a good one. It avoids an unnecessary
risk of harm to a person. Even though we all know it
should not make any difference, just the information
that there once was a criminal accusation can limit a
person's economic opportunity and severely damage a
reputation. Life, subsequent to an arrest, is
permanently altered. Making such records confidential,
by contrast, provides a meaningful end to a criminal
process.
Perhaps there is no better illustration of the
personal impact of criminal litigation for us Alaskans
than the case of Senator Ted Stevens. After 41 years
of faithful service, he was charged with crimes and
convicted. He was convicted. But his conviction was
later thrown out because of prosecutorial misconduct,
and his case was entirely dismissed by the government.
Let's suppose for a moment that Sen. Stevens had been
charged in state court. Even after a dismissal of all
charges, public court records would forever list him -
really, brand him - as a "criminal defendant." Why is
that fair? Why should any citizen be treated that way
for all time when the government has closely evaluated
the evidence and seen fit to dismiss the charges, or
when a defendant has been acquitted?
Taylor Winston, an employee of the state Office of
Victims' Rights, recently wrote this Committee
concerning SB 108. Ms. Winston opposes the idea of
making closed nonconviction records confidential for
reasons stated in her column on April 10, 2014. Under
such a theory of justice, however, a person once
charged of a crime should be forever considered "not
innocent," even though the courts lack any legal
authority to make such a determination. Neither
prosecutors acting alone nor a grand jury has a 'good
enough' fact-finding process such that their
indictments should forever stand as public monuments.
Let's remember that a grand jury meets in secret with
the prosecutor, and that the accused and his lawyer
aren't allowed in. Not only did the Founding Fathers
reject the grand jury as the means of determining
criminal responsibility, they also decided that there
would be no continuing penalty, no loss of privilege
and certainly no lifetime loss of privacy for those
who had been once charged but not convicted of a
crime.
Ms. Winston argues that the information provided on
the court's electronic website (showing information on
open and closed criminal cases) is "objective" and
provides information the public can use to protect
itself. In a letter she submitted to the Legislature,
she provided an example: she said she would check the
website to help make a decision on a babysitter. This
is a great example as to why SB 108 should be enacted.
The website warns the reader as to its unreliability
and prejudicial effect and yet people still rely on
it, presumptively, for divining someone's
trustworthiness.
A zealous advocate, Ms. Winston seems genuinely
concerned, but her dire prediction that "victims of
domestic violence, sexual assault, and child sexual
abuse, and our communities will suffer" under SB 108
is certainly not justified by the very modest reach of
this bill.
Senate Bill 108 would not block any police, prosecutor
or judge from access to closed nonconviction court
records. Any party to a closed case still has
automatic access. Because Alaska's statutes and its
constitution now also require the criminal justice
system to accommodate the rights of crime victims, it
is almost certain that a complaining witness would
also have automatic access. Access by any other
individuals can be obtained with the written
permission of the court if the court finds that the
requestor's interest outweighs the potential harm to
the person or interests being protected. In making
this call, the court will consider the (1) risk of
injury to individuals; (2) individual privacy rights
and interests; (3) proprietary business information;
(4) the deliberative process; or (5) public safety.
Finally, it should be noted that SB 108 does not
impose any burdens of secrecy or non-publication on
persons or companies who obtain the record.
Senate Bill 108 is a neat, nifty way to be fair to
defendants whose cases are entirely dismissed - like
Sen. Stevens- without undermining law enforcement or
prosecutorial functions. Let your state representative
know that SB 108 should pass.
Co-Chair Stoltze asked for written testimony. Ms. Geddes
agreed to provide her testimony to the committee.
2:47:02 PM
TAYLOR WINSTON, DIRECTOR, ALASKA OFFICE OF VICTIMS' RIGHTS
(OVR), ANCHORAGE, testified in strong opposition to the
legislation. She believed the bill was of grave concerns,
particularly to victims in Alaska. In reference to previous
testimony she stressed that the bill was not a "nifty"
service to victims of the state. She emphasized that the
victims had a constitutional right to be treated with
fairness, dignity, and respect; the bill did not treat them
with those things. She spoke to her professional experience
working in the Alaska legal system. She had spent over 12
years working on sexual assault cases. She stressed that
the path of a victim of sexual assault was arduous. She
spoke about the difficulty victims faced when reporting a
crime including feelings of guilt and shame. She discussed
that everyone wanted to encourage victims to report because
when victims reported the process should be able to act and
should make communities safer. She highlighted the bravery
victims showed when reporting a crime. She stated that the
process did not restore a victim's sense of well-being; it
was humiliating and constituted a re-victimization. She
stated that the individuals had to relive the trauma of
past events in front of a grand jury. She discussed that it
was up to a jury to determine whether there was sufficient
evidence to prove the case beyond a reasonable doubt. She
stated that an acquittal was like a knife through the heart
for the victim.
Ms. Winston testified that the legislation was contrary to
a victim's constitutional right to be treated with dignity,
fairness, and respect. She asked for verification that the
bill had been amended to only include dismissals by the
prosecution, not by the court.
Co-Chair Stoltze stated that there was an affirmation, but
he had not looked at the minutia of the bill.
Ms. Winston stated that the bill put the decision and fate
of the victims in the hands of prosecutors. She mentioned
her former work as a prosecutor and the dismissal of cases
that occurred for various reasons. She wondered what
justice the removal of records related to dismissed cases
provided for victims of various crimes. She stressed
justice for all and not just the defendant. She believed an
accurate account of information and a definitive source was
important. She mentioned the O.J. Simpson case; she
believed it was important for the public to have the
ability to see what happens in its institutions. She was
glad some of the supporters had brought forward their
convictions. She stated that certain things would not be
known if the record was not open.
Co-Chair Stoltze clarified that supporters had brought
forward their arrests, not convictions.
Ms. Winston agreed and restated that the record was clear
regarding the testifier's arrests. She pointed to
supportive testimony and noted that the bill would not
address some specific concerns mentioned. She spoke to the
testimony of Mr. Mooney and stated it was one of the
reasons transparency of government was important. She had
prosecuted the case he spoke about. She provided details of
the case. She stated that the evidence against him had been
strong, but the jury had acquitted him.
2:59:08 PM
Ms. Winston stressed the importance of the court record.
She pointed to the Mechele Linehan case, which had been
dismissed by the prosecution and would not stay in the
court record if the bill passed. She mentioned the John
Carlin case and communicated that there was going to be
voiding of his conviction; OVR had submitted that his death
in prison did not mean his conviction should be voided and
the decision had been reversed related to the specific
point. She spoke to the national George Zimmerman case and
believed it deserved to have public scrutiny and review.
She opined that prosecutors should be scrutinized for what
they dismissed. She stressed that the organization was not
opposed to the concept presented by SB 108, but it was
opposed to the language the bill used. She believed there
should be a surgical approach because the bill would affect
many people. The organization had proposed amendments to
the committee to help protect victims.
Ms. Winston referred to an earlier question by
Representative Gara related to a grand jury and relayed
that a prosecutor was under obligation to present
exculpatory evidence (any evidence that tended to negate a
defendant's guilt). She discussed grand jury procedures.
She spoke to the Joshua Wade cases related to murder
convictions. She mentioned that in cases of concurrent
state and federal jurisdiction, the state would dismiss a
case to allow it to move through the federal process; the
detail would be removed from the public's view under the
legislation. She did not believe it was fair to the
citizens of the state. She believed the bill was contrary
to the First Amendment, the Freedom of Information Act, and
the transparency of government. She reiterated that the
bill was divergent from the constitutional right to
fairness, dignity, and respect. She urged the committee to
think about the victims. She referred to statute and the
sealing of the process and expressed her belief that a
better process should be devised to address people trying
to seal their records.
3:05:25 PM
Representative Thompson noted his compassion for victims
and understood their constitutional rights; however, people
who were falsely accused also had constitutional rights. He
noted that under the legislation the records would be
removed from CourtView after 120 days. He wondered what
timeframe Ms. Winston would be comfortable with.
Ms. Winston replied that there was a difference between a
case where a person was falsely accused with no evidence to
support the charge and a case where a plea agreement to
dismiss had been agreed upon. She noted that a case was
sometimes dismissed if a defendant died. She relayed that
the 120-day time period was not the issue. She opined that
CourtView had been a problem. She did not want individuals
wrongfully accused of crimes to be punished by the system;
however, she did want the public record to remain on
CourtView for other situations. She believed the
legislation needed to be further defined.
3:08:44 PM
Representative Gara spoke from the perspective of a victim
and shared that his father had been murdered when he was a
child; however, he would not feel comfortable to have a
person who was wrongfully accused listed as a criminal for
the rest of their life even if the record showed that
charges had been dismissed. He stated that it was not
possible to have a perfect system. He would never feel
comfortable having a murder charge listed for an innocent
person.
JAMES NOBLE, SELF, PRUDHOE BAY (via teleconference), spoke
in support of the bill. He stated that charges had been
dismissed after he had been falsely accused of stalking and
domestic violence by an ex-girlfriend. He had been
surprised and upset by a letter of opposition written by
Ms. Winston. After listening to her prior testimony he
agreed with much of what Ms. Winston had said; however, he
personally related to her description of the various
process of humility and shame that victims went through. He
stated that he was the guilty party according to Ms.
Winston's letter and beliefs. He addressed the idea that
predators got away with crimes; he believed the system was
working hard to bring guilty persons to justice. He relayed
that the dismissed charges against him were on the
CourtView record. The charges had been brought over five
years earlier, but they remained visible. He stressed that
people looked at CourtView; it was useful, but also
harmful. He emphasized that the current system did not
work. He agreed that there were a few cases where the
guilty went free due to the system, but that the system
would never be perfect. He noted the high case dismissal
rate of 60 to 70 percent. He asked about the rights to due
process, innocence until proven guilty, about his right to
privacy, and his right after proving his innocence. He
reiterated his support for the legislation and thanked the
sponsor.
3:14:38 PM
Co-Chair Stoltze CLOSED public testimony.
CSSB 108(JUD) was HEARD and HELD in committee for further
consideration.
3:15:18 PM
AT EASE
3:17:09 PM
RECONVENED