Legislature(2009 - 2010)BELTZ 105 (TSBldg)
02/24/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB186 | |
| SJR21 | |
| SB257 | |
| SB265 | |
| SB252 | |
| SB241 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SJR 21 | ||
| = | SB 265 | ||
| = | SB 252 | ||
| = | SB 241 | ||
| + | SB 209 | TELECONFERENCED | |
| *+ | SB 239 | TELECONFERENCED | |
| + | SB 244 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 257 | ||
| = | HB 186 | ||
SB 241-POST-CONVICTION DNA TESTING; EVIDENCE
2:41:20 PM
CHAIR FRENCH announced the consideration of SB 241.
ANNE CARPENETI, Attorney representing the Criminal Division,
Department of Law (DOL), related that the governor wanted SB 241
to include two parts. It reprises much of the evidence retention
bill from last year and it establishes procedures for dealing
with requests for post conviction DNA testing that are based on
federal law. The intent is to achieve a balance to allow
somebody who is innocent to bring a request for post conviction
DNA testing because nobody wants an innocent person to remain in
jail.
2:44:28 PM
MS. CARPENETI described the following differences between SB 110
- the evidence preservation bill - and SB 241:
· SB 241 clarifies that evidence that is not biological
material must be kept until the end of all possible
litigation in the particular case.
SB 110 provides that evidence that is not
biological material should be kept until the case
is solved. This would work but it would depend on
the meaning of "solved."
· SB 241 provides that for crimes of sexual assault
in the first degree and sexual abuse of a minor
in the first degree, the biological material has
to be saved until the person is off probation,
parole, or any other condition of their
conviction. It does not extend to the time that
they have to register as a sex offender.
SB 110 provides that biological material should
be kept for the period of time that the person is
required to register as a sex offender. People
convicted of sexual assault in the first degree
and sexual abuse of a minor in the first degree
were required to register for their entire life.
· SB 241 and SB 110 have similar remedies but SB
241 provides that a court cannot reverse or
vacate a conviction solely on the basis that a
police department has not followed the
requirements of this new section. The rationale
is that this is a new burden and a court
shouldn't vacate a conviction because the police
department didn't get it right.
· SB 241 envisions the task force as a group of
people who would adopt standards of procedure for
the safe storage and retention of evidence so
that it is available for post-conviction relief.
A member of the court is on the task force
because the court sometimes keeps evidence.
CHAIR FRENCH asked Ms. Carpeneti to start with Section 6 and
walk through the new DNA testing procedure.
2:48:58 PM
MS. CARPENETI explained that the current post-conviction relief
statutes are amended to say that a person seeking post-
conviction DNA testing because of new evidence must proceed
under the new chapter AS 12.73 rather than under the current
law, AS 12.72.
Section 6 provides the following:
· A person convicted of a felony against a person who has not
been unconditionally discharged may apply to the superior
court for DNA testing. Unconditional discharge is defined
in the bill as the release from disability arising under a
sentence, including probation and parole, but not sex
offender registration.
· A person who wants to make application for post-conviction
relief must submit to the court an affidavit attesting:
· He or she did not commit the offense for which
they were convicted or a lesser included offense.
· He or she did not solicit another person, or aid
and abet the commission of the offense or any
lesser included offense. She noted that the
purpose of the bill is to allow relief for a
person who has been mistakenly convicted.
· He or she did not admit or concede guilt in
any official proceeding for the offense that
was the basis of the conviction.
MS CARPENETI suggested the committee amend the bill to say that
a guilty plea or nolo contendere plea by itself is not an
admission or concession of guilt. But if someone has stated
under oath to a parole board that he or she was guilty that
should preclude the person from getting post-conviction DNA
testing. She cited the Osborne case when that happened and said
that DOL thinks that people need to be held responsible for
things they say under oath in a court of law.
2:53:40 PM
Section 6 further provides:
· The applicant must try to get an affidavit from his or her
attorney explaining the reasons for not obtaining DNA
testing initially. She noted that DOL looks at this as a
way to encourage defendants to get DNA testing at the time
that they are charged.
· Post-conviction DNA testing would be permanently waived if
a person made a tactical decision at trial not to proceed
with DNA testing. This requirement is similar to federal
law. Other post-conviction remedies would continue to be
available.
MS. CARPENETI described the findings required for the court to
order post-conviction DNA testing.
· The evidence to be tested must be subject to a chain of
custody and retained in a way that ensures that it hasn't
been tampered with and is reliable.
· The testing must be reasonable and use accepted scientific
practices.
· The applicant must identify a theory of defense to
establish their innocence that is not inconsistent with the
theory pursued at trial.
· The applicant was convicted and the identity of the
perpetrator was an issue in the trial. She noted that this
is related to the requirement that the theory the applicant
is requesting is not inconsistent with the trial defense.
· There is a reasonable probability, in light of the
evidence, that the requested DNA testing could conclusively
establish that the person is innocent.
MS. CARPENETI said the bill also specifically allows the
prosecution and defendant to agree to post-conviction testing if
it's reasonable.
2:58:23 PM
MS. CARPENETI directed attention to page 10, Sec. 12.73.040, on
timeliness. There is a presumption that the application is
timely if it is brought within three years of the conviction.
This may be rebutted if there has been previous application for
post-conviction DNA testing. There is also a presumption of
untimeliness if the application is brought after three years.
This presumption can be rebutted if the applicant was
incompetent and that contributed to the delay in filing the
application, or for other good cause. She noted that the House
bill says that the presumption can be rebutted for a good cause.
CHAIR FRENCH said the committee would take the suggestion.
MS. CARPENETI said the Innocence Project disagrees, but DOL
continues to believe that there is a good reason for making the
application sooner rather than later if it's reasonably
possible.
She said that the bill also amends AS 44.41.035(b), the data
bank. The suggestions came primarily from the Department of
Public Safety; some is clarifying language. For example, current
statutes do not specifically provide that a person who has been
found innocent can get their DNA removed from the data bank. The
federal government has said that change must be made.
MS. CARPENETI reiterated that the taskforce is somewhat
different than in SB 110 because the focus was on technical
issues rather than broader policy issues.
She concluded saying that it's a balancing act to ensure that
innocent people aren't in jail and at the same time make sure
that people don't get another bite at the apple and continue
recreational litigation.
CHAIR FRENCH announced he would hold SB 241 in committee for
further work.
3:01:38 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:01 p.m.
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