Legislature(2011 - 2012)BELTZ 105 (TSBldg)
01/27/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB89 | |
| SB135 | |
| SB140 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 135 | TELECONFERENCED | |
| *+ | SB 140 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 89 | ||
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.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 140 Sponsor Statement v.B.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 140 |
| SB 140 Letter of Support MOA.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 140 |
| SB 140 Letter of Support ABADA AMHB.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 140 |
| SB 135 Sullivan, Susan - Letter of Support.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 135 |
| SB 135 Brown, Peggy - Letter of Support.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 135 |
| SB 135 Foster, Karen - Letter of Support.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 135 |
| SB 135 Haag, Nancy - Letter of Support.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 135 |
| SB 135 Kester, Victor - Letter of Support.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 135 |
| SB 135 Sponsor Statement.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 135 |
| SB 135 Sectional Analysis.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 135 |
| SB 140 Support Article ADN 01.24.11.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 140 |
| SB 140 Support Article ADN 11.15.11.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 140 |
| SB 140 Support Article Alaska Dispatch 11.07.11.pdf |
SJUD 1/27/2012 1:30:00 PM |
SB 140 |