Legislature(2009 - 2010)HOUSE FINANCE 519
04/12/2010 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB110 | |
| HB324 | |
| HB283 | |
| HB126 |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 110 | TELECONFERENCED | |
| + | SB 222 | TELECONFERENCED | |
| + | HB 324 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 283 | TELECONFERENCED | |
| += | HB 126 | TELECONFERENCED | |
CS FOR SENATE BILL NO. 110(FIN)
"An Act relating to the preservation of evidence and
to the DNA identification system."
1:46:55 PM
SENATOR HOLLIS FRENCH, SPONSOR, discussed SB 110. He
explained that the proposed legislation addresses post
conviction Deoxyribonucleic Acid (DNA) testing. He
commended his Chief of staff, Cindy Smith who initiated a
series of events allowing for provisions that move crime
bills through the process. The governor introduced a bill
this year with similar issues in respect to evidence
preservation. The DNA provisions from the governor's bill
are inserted into SB 110. He highlighted Section 3, Page 3
regarding evidence preservation. In the past rural law
enforcement agencies were tasked with storing large amounts
of evidence. With SB 110, an agency is not required to
preserve physical evidence for a crime that is of a size,
bulk, quantity, or physical character that renders
preservation impracticable. If the evidence is
impracticable, the bill asks the agency to grab those small
portions of biological evidence that may be useful in the
future to allow for a claim of innocence or conviction if
necessary. He noted the language insertion from the
Department of Law (DOL) "or until 50 years passes" allowing
a limit with respect to the amount of time evidence is
retained in storage. The Alaska Native Justice Center was
added to the task force. He noted that the task force will
provide good feedback in respect to evidence preservation.
1:51:02 PM
Senator French discussed provisions on post conviction DNA
testing. Individuals in prison can assert a claim of
innocence because of DNA evidence that may not have been
considered or available during conviction. The provision
ensures that no innocent individual is retained in an
Alaska prison. He explained that SB 110 is modeled on
Federal post conviction DNA statutes, which were passed in
2004 by a republican congress. He opined that the bill
struck the proper balance between civil liberties and
protection of the public order. Changes to HB 316 include
the deletion of language requiring applicants to cover the
cost of evidence retrieval. Timeliness provisions were
changed in that current prisoners have ten years from the
passage of the bill to initiate a claim. Provisions
regarding guilt where the applicant did not conceive guilt
under oath in an official proceeding can be waived by the
court in the interest of justice. He explained that
innocent people sometimes plead guilty to crimes. A
requirement asking for an attorney affidavit was deleted.
New language in Section 10 states that the proposed DNA
testing of the specific evidence may produce new material
that one would support the theory raised by the defense.
1:54:19 PM
DAN SULLIVAN, ATTORNEY GENERAL, DEPARTMENT OF LAW, sought
guidance from the House Finance Committee about the three
bills presented by the governor. He provided testimony
during the first week of session regarding the ten year
comprehensive plan to address the problem of domestic
violence and sexual assault in Alaska. He noted that the
way to combat the epidemic of sexual assault and domestic
violence is with a ten year strategic plan. He mentioned
that the help of the legislature has been instrumental in
the initiative process. He focused on the implementation of
the plan as a key aspect of the initiative. The strategic
objective is focused on changing the culture through a
comprehensive education and prevention campaign promoting a
culture of respect. He noted the importance of law
enforcement for interested communities. He discussed the
issue of victim services availability. A summit of lawyers
to increase the legal services via pro bono work is one
potential solution.
2:00:51 PM
Mr. Sullivan mentioned the legislation before the
committee. He recalled SB 222, SB 110 and HB 324, which
have been improved by this body. He requested that the
bills go out of committee as a package today. He pointed
out bail reform as an important issue. Alaska has not had
significant bail reform since the 1960s and HB 324 is an
effort to "catch up" to federal standards. He highlighted
four key points in HB 324. The first point requires a
person charged with a serious sex offense to prove that
release conditions before trial will protect the victim and
the public. The second point prohibits a person found
guilty of a serious sex offense from being released before
sentencing or during an appeal of a conviction. The third
point protects the victims of domestic violence by setting
standards that the court must find before allowing a
perpetrator of domestic violence to return to the victim's
residence. The fourth point allows more time before the
defendant's first appearance in court for the police to
investigate and the prosecutor to make an informed charging
decision to present better bail arguments and to contact
the victim so that they may be present at the bail hearing.
He commented on the positive demonstration made by the
administration, the House Finance Committee, and the Senate
Judiciary Committee. He complimented the various staff
members whose involvement created a strong package of three
bills encompassing important components of the overall
strategic plan to end sexual assault and domestic violence.
2:05:47 PM
SUE MCLEAN, PUBLIC DEFENDER, DEPARTMENT OF LAW, stated that
the testimony from Senator French was consistent with the
department's viewpoint. She expressed a strong interest in
allowing a challenge of convictions with the advent of DNA
testing. She stated that SB 110 strikes an appropriate
balance.
RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, noted that the department
worked well with the administration and Senator French's
district. The requirements for obtaining post conviction
relief under the state statute closely resemble the federal
statute. He pointed out one instance on Page 6, Line 28
that does not follow the federal statute in which a person
must be incarcerated prior to post conviction relief. With
SB 110, incarceration is not a requirement. The change
allows for the increased availability of post conviction
relief.
2:09:17 PM
Co-Chair Stoltze opened public testimony.
JEFFREY MITTMAN, EXECUTIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION OF ALASKA, testified in favor of the bill.
Co-Chair Stoltze pointed out two fiscal notes from the
Department of Public Safety (DPS) and one from DOL.
Mr. Svobodny explained the $4000 fiscal note from DOL. The
court of appeals created standards on post conviction
relief, but DOL believes that the legislature should
determine standards for Alaska. The $4000 cost allows the
task force to impose standards for the retention and return
of evidence.
2:13:08 PM
Co-Chair Stoltze detailed the zero fiscal note from DPS and
one zero fiscal note from the Senate Finance Committee.
ORIN DYM, FORENSIC LABORATORY MANAGER, DEPARTMENT OF PUBLIC
SAFETY, stated that the fiscal note takes the form of a new
crime lab. He explained that the department has gained
efficiency in evidence handling and evidence storage
providing reserves for the next two years.
Co-Chair Hawker asked about the fiscal note from DOL. He
asked if the funding would be absorbed into the existing
budget authority. Mr. Svobodny responded that the
department could absorb the cost. Co-Chair Hawker commended
the frugality of the zero fiscal note. Mr. Svobodny agreed
to present the note as a zero fiscal note.
2:16:32 PM
Representative Gara moved AMENDMENT 1. Co-Chair Stoltze
OBJECTED.
Amendment One
Delete "(A) is not inconsistent with a defense
presented at trial; and (B)"
Representative Gara spoke to the amendment. He explained
one outstanding issue on Page 8, Line 19 addressed by the
amendment. This section of the bill states that if a person
is innocent and able to prove it with DNA evidence, then
the person will no longer be in jail. He wished to prevent
any additional road blocks for an innocent person. The DNA
evidence is present for the person who is wrongly
convicted. He noted the list of ten points that must be
illustrated to prove innocence. If Line 19 is not amended,
then an innocent person charged on misidentification, who
chooses a plea of self defense as recommended by an
attorney, will not be eligible for the benefits of DNA
testing. The amendment states that an innocent person
cannot be punished for a decision made by the trial
attorney. He provided a hypothetical case in which this
amendment would prove necessary.
2:21:47 PM
Ms. McLean noted that a balance must be obtained between
assuring that an innocent person could utilize DNA evidence
testing and those who might use the new law to perpetrate a
fraud on the court. Normally in self defense cases the
defendant would testify that he acted in self defense. She
added that if a defendant had a lawyer that talked him into
a fraudulent plea, then he has an opportunity to file for a
petition for a post conviction relief based on the
ineffective assistance of counsel leading to his
conviction.
Representative Gara clarified that all circumstances must
be covered to truly achieve a balance. He argued that
balance is impossible if a person cannot use DNA evidence.
2:23:55 PM
General Sullivan responded that the bill does comprise a
balance. He noted that the language states that the theory
of defense is inconsistent, which provides some "wiggle
room." The language achieves the balance in the federal
statute.
Representative Doogan understood that if a person chose a
plea and lost then they are rendered unable to file a
petition for post conviction relief. He did not understand
how amendment one would negatively affect any person or
entity involved. Mr. Svobodny responded that most trial
lawyers seek the truth. Representative Doogan commented
that the person on trial does not pay the price in this
circumstance. His attorney makes the decision.
2:29:16 PM
Mr. Svobodny stated that he was a prior public defender and
he never advised a person to run a defense that was untrue.
He recalled instances where a defendant requested a new
lawyer because the current lawyer would not defend based on
the story provided by the defendant. He believed that the
courts should strive to tell the truth as opposed to
misleading people.
Representative Doogan stated that the goal of the amendment
is to prove innocence and tell the truth. He noted that
without this, prosecutors will return to court and allow
for further DNA testing. He cited that the DNA test
provides infallible proof.
2:31:51 PM
Representative Austerman asked if chapter 73 of the bill
was based federal law. Senator French answered yes; chapter
73 is largely patterned after post conviction DNA statutes.
2:33:29 PM
Representative Gara stressed that a lawyer can help an
innocent person use DNA evidence to prove that they are
innocent. He clarified that his hypothetical situation
addressed an innocent person. He requested testimony from
the department.
2:35:38 PM
QUINLAN STEINER, PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION, commented that the amendment addresses both
section seven and eight. Section eight details the
requirement of the perpetrator's identity disputed at
trial. Subsection eight requires that the court find that
the applicant was convicted after a trial, which is
inconsistent with another section of the bill which permits
a post conviction DNA relief after a guilty plea. The
defense attorney could make a reasonable decision to run
self defense, which creates an ethical dilemma.
2:38:45 PM
Representative Gara asked if there were circumstances where
an attorney acting in good faith would run one defense
during trial and later be precluded from using DNA evidence
to prove that the client was innocent. Mr. Steiner replied
yes, the most obvious example is a self defense claim which
identifies the defendant as the person who created the act
with eyewitnesses stating that the person was acting in
self defense. A defense attorney may elect to run self
defense rather than an identification defense despite the
fact that the client denies presence at the scene of the
crime. The decision rests exclusively with the attorney.
Co-Chair Hawker commented on the debate. He stated that his
aide is supportive of the amendment. He asked Senator
French about the amendment and the balance of concerns.
2:41:07 PM
Senator French responded that research shows the federal
statute is the gold standard. He stated that he approved of
the bill without change.
Co-Chair Hawker asked the Attorney General his opinion
about amendment one.
General Sullivan stated that each provision requires an
element of balance. He sought to strike the proper balance.
The procedures are intended to prevent the incarceration of
innocent people. He respected the concerns raised in the
amendment, but the procedures are a balance in judgment.
2:44:10 PM
Representative Fairclough spoke to the example provided by
Representative Gara. She wondered if the defense attorney
would have considered DNA evidence prior to the trial. She
was unsure how the DNA evidence was obtained once the trial
ended.
Mr. Steiner responded that similar decisions were made
prior to sophisticated DNA testing allowing for strategic
reasons to forgo testing. An attorney must make judgment
calls regarding the evidence's likelihood of success, which
includes questioning the defendant's testimony.
Representative Gara stated that the sophistication of DNA
evidence is recent and unprecedented.
2:47:12 PM
Co-Chair Hawker informed that court officers intend to make
good decisions and are seeking justice. People in the court
system are not always part of the judiciary system.
Occasionally immigrants might not feel comfortable in the
judicial system. This person may seek the best option out.
He explained that the defense mechanism could be the result
of fear or lack of understanding of the judicial system. He
wondered if the requirement might be inconsistent.
2:51:03 PM
Mr. Steiner commented that the amendment may not completely
address the issue. Subsection eight requires that identity
be disputed and works in concert with Section seven.
Representative Joule commented that all native Alaskans
look alike to some people. He wondered how the issue fits
in to the amendment.
Senator French stated that the DNA testing might truly
exonerate the defendant only with an eyewitness that proves
that the blood on the victim fell on the defendant. The
police would test any blood found on the victim. In order
for DNA evidence to exonerate the defendant the blood on
the victim would require testing.
2:54:19 PM
General Sullivan commented that the hypothetical situation
assumes that the person is innocent and the blood is not
presented at trial. He pointed out that a defense attorney
might wisely avoid DNA testing, but then seek it out in the
event of a conviction.
2:56:23 PM
Representative Kelly asked how many states have adopted the
federal approach. Senator French did not know the answer.
Representative Gara explained that his hypothetical
situation included a pre DNA evidence conviction. He
accepted that many people do not fit the hypothetical,
although if the amendment allows one innocent person to
leave jail, then he will be content.
Representative Doogan asked to know the potential harm of
the amendment if passed.
2:59:30 PM
Ms. McLean responded that the amendment opens the
opportunity for those who are not in fact innocent and are
continually bringing various motions on other theories.
The harm is that the trial and appeals have occurred.
Representative Doogan asked if the amendment would harm the
lawyer. He noted that the provision removed includes the
words "I did not do it." Ms. McLean answered that those who
present a defensive alibi yet were guilty can now use a
plea of self defense. She stated that the harm is the
manipulation of the system making it more difficult for
those people seeking access to the system.
Representative Doogan reminded that a DNA test does not
allow for a conviction change.
3:02:35 PM
General Sullivan clarified that he is not admitting to
administrative convenience. He thought the harm to the
system was in allowing new theories that may be
inconsistent with previous theories and thereby encouraging
a form of "crapshoot justice."
Representative Doogan expressed dissatisfaction with
further argument versus an answer to his question regarding
the potential harm of the amendment. He repeated the
question "what is the harm in the amendment?"
Representative Fairclough pointed out the cost to the
state's investment in correctional facilities when DNA
evidence is utilized. The harm to the system is that state
dollars would be spent to test theory after theory. She
recalled an appeal process addressed in the CS.
3:07:02 PM
Senator French referred to Page 9, which addresses the
summary dismissal if a person does not comply with the
requirements of the discussed provisions.
Ms. McLean added that citizens always have the right to
appeal a court order.
Representative Gara concluded that if the amendment passes,
a person must present the affidavit and illustrate that the
DNA evidence will prove innocence. If there was prior DNA
evidence, the defendant must illustrate the reason that the
new DNA evidence is superior. The DNA evidence must be
proposed as sound and valid. The balance will be the
inconvenience of rotten people who abuse the system, but
for an innocent person who might not have been
sophisticated enough to insist on the best defense
possible, the amendment could make the difference. He
continued that he felt that the bill was good with strong
standards and many hoops to jump through prior to utilizing
DNA evidence.
A roll call vote was taken on the motion.
IN FAVOR: 6
OPPOSED: 5
Amendment one was ADOPTED.
3:12:09 PM
Co-Chair Hawker MOVED to report HCSCSSB 110(FIN) as amended
out of Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
HCSCSSB 110(FIN) was REPORTED out of Committee with a "do
pass" recommendation and with attached new zero notes by
the House Finance Committee for Department of Law and
previously published fiscal notes: FN4 (DPS) and FN5 (DPS).