Legislature(2009 - 2010)HOUSE FINANCE 519

03/25/2010 09:00 AM FINANCE


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09:23:06 AM Start
09:23:10 AM HB316
10:25:33 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 316 POST-CONVICTION DNA TESTING; EVIDENCE TELECONFERENCED
Heard & Held
<Bill Hearing Rescheduled from 3/23/10>
HOUSE BILL NO. 316                                                                                                            
                                                                                                                                
     "An Act relating to post-conviction DNA testing, to                                                                        
     the preservation of certain evidence, and to the DNA                                                                       
     identification registration system; relating to post-                                                                      
     conviction     relief    procedures;     relating    to                                                                    
     representation  by the  public defender;  amending Rule                                                                    
     35.1,   Alaska  Rules   of   Criminal  Procedure;   and                                                                    
     providing for an effective date."                                                                                          
                                                                                                                                
                                                                                                                                
9:23:24 AM                                                                                                                    
                                                                                                                                
DAN SULLIVAN, COMMISSIONER, DEPARTMENT  OF LAW presented the                                                                    
overview of the bill. The  bill included four main elements:                                                                    
new standards for the preservation  of evidence by all state                                                                    
law   enforcement  agencies,   new   procedures  for   post-                                                                    
conviction    DNA   testing,    amendments   to    the   DNA                                                                    
identification  registration system  to comply  with federal                                                                    
procedures,  and  the creation  of  a  task force  to  adopt                                                                    
standards for  evidence preservation.  He remarked  that the                                                                    
bill  fits  into  the broader  context  of  reducing  sexual                                                                    
assault  and domestic  violence in  the state.  The governor                                                                    
had a 10 year  plan to help address and pose  no harm to any                                                                    
citizen.  This plan  had five  key strategic  objectives: to                                                                    
break  the  cycle  of abuse  using  a  comprehensive  public                                                                    
education and  prevention campaign, to promote  a culture of                                                                    
respect  and  awareness;  to  deter,  segregate,  and  treat                                                                    
offenders  so  they  pose  no  risk of  harm  to  women  and                                                                    
children; to  establish a law enforcement  presence in every                                                                    
community that desires one; to  increase victim services, so                                                                    
more  have   a  safe   sanctuary;  and  to   coordinate  and                                                                    
streamline  efforts among  all  stakeholders to  effectively                                                                    
combat violence against women and  children. He believed the                                                                    
governor's  plan, though  imperfect, was  a good  foundation                                                                    
with  many different  perspectives. He  spoke of  leaders on                                                                    
this   issue,   specifically    Representative   Joule   and                                                                    
Representative   Fairclough   who   worked  hard   to   make                                                                    
improvements to this plan. He  believed the legislative plan                                                                    
was   working.  The   legislature  was   already  addressing                                                                    
improvements  to the  governor's  plan,  and felt  confident                                                                    
that the broader strategy of  tackling domestic violence and                                                                    
sexual assault was  poised to be stronger.  He also remarked                                                                    
that  he had  presented  this plan  to  senior officials  in                                                                    
Washington  at  the  Department of  Justice,  including  the                                                                    
attorney  general  and  the Vice  President  of  the  United                                                                    
States. The  presentation in  Washington was  a part  of the                                                                    
plan to  raise awareness  of this  cultural issue.  The Vice                                                                    
President gave a personal commitment  to help Alaska address                                                                    
this  challenge. On  March  31, 2010  marches  all over  the                                                                    
state would  focus on  the issue  of violence  against women                                                                    
and children.                                                                                                                   
                                                                                                                                
9:30:01 AM                                                                                                                    
                                                                                                                                
He commented  that there  were a  number of  bills regarding                                                                    
the  governor's plan:  one pertained  to sexual  assault and                                                                    
domestic violence issues; one  pertained to bail reform; and                                                                    
HB 316,  which pertained to post-conviction  DNA testing. He                                                                    
post-conviction DNA testing  issues were critical components                                                                    
to the  broader comprehensive  strategy. He  maintained that                                                                    
these were  grass-roots bills, in  that they  were developed                                                                    
from  looking at  ways to  make Alaskans  safer. Prosecutors                                                                    
should be given the tools  to put offenders behind bars, and                                                                    
also be  sure they have  prosecuted the right  offender. The                                                                    
state of  Alaska won  a US Supreme  Court case:  the Osborne                                                                    
case.  This case  was argued  by  the Alaska  DOL, and  they                                                                    
reversed the  ninth circuit. The  Supreme Court  agreed that                                                                    
post  conviction  issues  are  better  left  to  the  states                                                                    
instead  of  the federal  courts.  The  bill would  set  out                                                                    
procedures and standards on how  a convicted felon can apply                                                                    
for DNA  testing. It  would also set  up procedures  for the                                                                    
preservation  of DNA  evidence,  which would  help the  cold                                                                    
case  unit  crack  more  cases.   While  it  is  known  that                                                                    
criminals  and crime  should be  dealt  with seriously,  and                                                                    
victims should  be given as  much protection  from dangerous                                                                    
criminals  as allowed  under the  law, it  is also  believed                                                                    
that  procedures   should  be   in  place  to   enhance  the                                                                    
opportunity for fair trials. He  addressed the four elements                                                                    
of the  bill: it set  new standards for the  preservation of                                                                    
evidence by  all law enforcement agencies,  evidence must be                                                                    
preserved  until time  of appeal  or post-conviction  relief                                                                    
has  expired, biological  material must  be preserved  until                                                                    
the person  is unconditionally discharged of  the crime, and                                                                    
implement  new procedures  for post-conviction  DNA testing.                                                                    
The  bill  also had  amendments  to  the DNA  identification                                                                    
registration  system,  to  comply  with  federal  procedure.                                                                    
Finally,  the  bill  would  create a  task  force  to  adopt                                                                    
standards for evidence preservation.                                                                                            
                                                                                                                                
9:36:38 AM                                                                                                                    
                                                                                                                                
Representative Fairclough  queried the  impact on  the crime                                                                    
lab in Anchorage, regarding the governor's proposed plan.                                                                       
                                                                                                                                
9:37:20 AM                                                                                                                    
                                                                                                                                
Commissioner Sullivan  mentioned there were four  bills that                                                                    
focus on finance  and aspects of the crime  lab, and without                                                                    
all four  it will limit  what is  trying to be  achieved. He                                                                    
commented that about 50 percent  of the cases that the crime                                                                    
lab  examines   relate  to   sexual  assault   and  domestic                                                                    
violence.                                                                                                                       
                                                                                                                                
9:38:30 AM                                                                                                                    
                                                                                                                                
RICHARD   SVOBODNY,   DEPUTY  ATTORNEY   GENERAL,   CRIMINAL                                                                    
DIVISION, DEPARTMENT OF LAW, added  that with the passing of                                                                    
this bill, he hoped that  all DNA testing would occur before                                                                    
a trial. He  noted that the work load in  the crime lab will                                                                    
increase, but would presumably take  place before the trial.                                                                    
This may  make DNA evidence retention  less problematic. The                                                                    
bill does  include provisions for evidence  retention, which                                                                    
would keep the  burden of evidence storage at  a minimum. He                                                                    
added  that   the  task  force  would   deal  with  evidence                                                                    
retention  issues, for  example: how  to return  property to                                                                    
victims.                                                                                                                        
                                                                                                                                
Representative   Fairclough   wondered   how   quickly   the                                                                    
collected  DNA was  entered into  the national  DNA database                                                                    
(CODAS).  She also  queried the  protocol  for entering  DNA                                                                    
into CODAS.                                                                                                                     
                                                                                                                                
Mr. Svobodny explained that he  believes it took about three                                                                    
or four days  for DNA to enter CODAS, but  remarked that the                                                                    
Alaska Department of  Public Safety (DPS) could  give a more                                                                    
accurate  answer. He  continued that  the DNA  goes directly                                                                    
into CODAS  when there  is no suspect,  in order  to compare                                                                    
DNA  to other  cases and  felons. He  stated that  there are                                                                    
several  different databases  that are  used to  determine a                                                                    
possible subject. He  specified that there is  no wait until                                                                    
someone is convicted, in order  for their DNA to get entered                                                                    
into the  system. He furthered  that there was a  portion of                                                                    
the  bill  that  would  require  removal  of  DNA  from  the                                                                    
database, if that person had been exonerated.                                                                                   
                                                                                                                                
9:42:25 AM                                                                                                                    
                                                                                                                                
ANNE CARPENETI,  ASSISTANT ATTORNEY GENERAL,  LEGAL SERVICES                                                                    
SECTION-JUNEAU,  CRIMINAL   DIVISION,  DEPARTMENT   OF  LAW,                                                                    
mentioned that  the drafters  of the  bill were  two lawyers                                                                    
from the  Office of Special Prosecutions  and Appeals (OSPA)                                                                    
who represented  Alaska in the  Osborne case at  the Supreme                                                                    
Court.                                                                                                                          
                                                                                                                                
Ms. Carpeneti explained  that the bill was  divided into two                                                                    
major  parts: evidence  retention,  and post-conviction  DNA                                                                    
testing.  The   bill  specified   two  different   types  of                                                                    
evidence: physical  and biological.  The bill  would require                                                                    
state law  enforcement agencies to retain  physical evidence                                                                    
for  the   entire  litigation  period  in   cases  involving                                                                    
homicides,  first degree  sexual assault,  and first  degree                                                                    
sexual  abuse.  It  would  recognize  that  law  enforcement                                                                    
agencies are different sizes, remarking  that a rural police                                                                    
department  might have  less storage  capacity than  a large                                                                    
urban center.  The bill required  that each  law enforcement                                                                    
agency  establish written  protocols and  standards for  how                                                                    
cuttings and samples  would be taken from  bulkier pieces of                                                                    
physical  evidence. She  continued that  biological evidence                                                                    
is  defined as  the contents  of  a rape  kit: human  bodily                                                                    
material; slides  and swabs from the  human bodily material;                                                                    
and  swabs  or cuttings  from  evidence  that contained  the                                                                    
biological material.  The biological  material must  be kept                                                                    
for the  period of time that  a sex offender is  required to                                                                    
register for the sex offence;  and for homicides, it is kept                                                                    
until  the  person  is unconditionally  released  from  that                                                                    
crime. The  bill would  adopt a procedure  to dispose  of or                                                                    
return evidence  to the owner.  If law  enforcement agencies                                                                    
do  not  abide  by  the  rules  and  procedures,  there  are                                                                    
remedies  provided according  to Supreme  Court rulings.  As                                                                    
legislation has passed,  the task force related  to the bill                                                                    
had   expanded  to   include  representatives   of  evidence                                                                    
custodian  agencies.  The duty  of  the  task force  was  to                                                                    
recommend standards  and protocols for  evidence collection,                                                                    
storage, organization, and return to owner.                                                                                     
                                                                                                                                
9:49:32 AM                                                                                                                    
                                                                                                                                
Representative  Gara  requested  a  comparison  between  the                                                                    
current  evidence  retention  standards,  and  the  proposed                                                                    
legislation.   Mr.  Svobodny   responded  that   there  were                                                                    
currently  no state-wide  standards  pertaining to  evidence                                                                    
retention.                                                                                                                      
                                                                                                                                
Representative Gara  queried the length of  time evidence is                                                                    
kept post-conviction.  Ms. Carpeneti  replied that  the bill                                                                    
would allow traditional physical  evidence to be returned to                                                                    
the owner upon incarceration,  and biological evidence would                                                                    
be  kept  for  the  period   of  time  that  the  person  is                                                                    
incarcerated, fulfilled probation or  parole, and the length                                                                    
of time they are registered as a sex offender.                                                                                  
                                                                                                                                
Representative  Gara asked  if  there would  be a  situation                                                                    
where   retention  of   evidence  is   unnecessary,  as   to                                                                    
accommodate  a victim's  needs. Ms.  Carpeneti replied  that                                                                    
the legislation  would provide a procedure  where the police                                                                    
would  ask  the  parties  involved if  they  object  to  the                                                                    
returning of evidence.                                                                                                          
                                                                                                                                
Representative  Gara remarked  that the  procedures are  too                                                                    
rigid  for  the  convicted  persons, who  are  innocent,  to                                                                    
obtain DNA testing.                                                                                                             
                                                                                                                                
9:53:06 AM                                                                                                                    
                                                                                                                                
Representative Fairclough  asked why a Sexual  Assault Nurse                                                                    
Examiner  (SANE) was  not a  member of  the task  force. She                                                                    
spoke  in   favor  of  the  Alaska   Native  Justice  Center                                                                    
inclusion  in  the   task  force,  because  it   is  a  good                                                                    
representation of  rural voices. Ms. Carpeneti  replied that                                                                    
she did not believe a  SANE was ever considered. She pointed                                                                    
out  that they  had  tried  to keep  the  task force  small,                                                                    
because the  vision of the  task force was  originally based                                                                    
on basic  storage and retention  procedures. The  members of                                                                    
the task force are  mostly people who professionally collect                                                                    
and store  evidence.  Commissioner  Sullivan added  that the                                                                    
DOL would  have no objection  to the  addition of a  SANE to                                                                    
the  task force.  Representative  Fairclough reiterated  the                                                                    
importance of a SANE on the task force.                                                                                         
                                                                                                                                
9:55:54 AM                                                                                                                    
                                                                                                                                
Co-Chair  Stoltze  added  that  the  Alaska  Native  Justice                                                                    
Center has a  broader mission than rural  Alaska, although a                                                                    
chunk of victimization is in rural Alaska.                                                                                      
                                                                                                                                
9:56:07 AM                                                                                                                    
                                                                                                                                
Representative   Austerman  queried   the  state's   current                                                                    
evidence retention  standard. Mr. Svobodny stated  that each                                                                    
individual  police  department  set its  own  standards.  He                                                                    
related  that  one  police   department  might  require  all                                                                    
photographs  to  be  maintained,  while  another  department                                                                    
might   require  all   specifically  clear   photographs  be                                                                    
maintained.  He  stated  that there  are  federal  standards                                                                    
regarding DNA  collection, but the  task force would  be set                                                                    
up to deal with all evidence.                                                                                                   
                                                                                                                                
Representative Austerman  wondered why the bill  states that                                                                    
each police  department would  develop their  own standards,                                                                    
when the intent is to  create a state standard. Mr. Svobodny                                                                    
responded that  the local police departments  have limits to                                                                    
what  they  can  do.  The bill  would  not  establish  state                                                                    
standards. He  reiterated that  there are  broad differences                                                                    
between  departments across  the state,  but the  task force                                                                    
would   impose   a    requirement   on   municipalities   to                                                                    
specifically retain biological evidence.                                                                                        
                                                                                                                                
9:59:41 AM                                                                                                                    
                                                                                                                                
Representative Austerman  wondered if  the task  force would                                                                    
present their  findings to  the governor,  and if  so, would                                                                    
DOL  write  a  new  bill with  their  standards  written  in                                                                    
statute. Mr.  Svobodny replied  that the  task force  may or                                                                    
may  not   present  their  findings  to   the  governor.  He                                                                    
furthered  that   if  the   task  force   was  unsuccessful,                                                                    
standards may need to be written in statute.                                                                                    
                                                                                                                                
10:00:37 AM                                                                                                                   
                                                                                                                                
Ms.  Carpeneti continued  with  post-conviction DNA  testing                                                                    
standards. She  believed that the standards  outlined in the                                                                    
bill would  be short-lived,  in the  hopes that  DNA testing                                                                    
would occur for  all cases where DNA  evidence was available                                                                    
and relevant.  She remarked  that sophisticated  DNA testing                                                                    
already existed  in Alaska. In  cases where DNA  testing did                                                                    
not occur,  the bill attempts  to attain a balance.  The two                                                                    
sides  of  the  balance   address  helping  those  who  were                                                                    
wrongly-convicted  and  discourage  those  who  were  justly                                                                    
convicted  to   challenge  a   fair  conviction.   The  bill                                                                    
specified findings that  a court must make  before the judge                                                                    
can  order post-conviction  DNA  testing:  1) The  applicant                                                                    
must be convicted  of a felony for a crime  against a person                                                                    
under Alaska law; 2) The  applicant must submit an affidavit                                                                    
swearing  that he/she  is innocent  of the  crime they  were                                                                    
convicted of,  and any  lesser included  offenses, attempts,                                                                    
or aiding/abetting; 3) The applicant  must not have conceded                                                                    
or  admitted guilt  in an  official preceding.  She remarked                                                                    
that a  guilty or  nolo contendere plea  at the  trial level                                                                    
should not  be considered concession or  admission of guilt;                                                                    
4)  The  applicant  must   submit  an  affidavit  describing                                                                    
previous  efforts to  obtain DNA  testing;  5) The  evidence                                                                    
must   be  obtained   as  part   of  an   investigation  and                                                                    
prosecution, and  subject to  a chain  of custody  to ensure                                                                    
its  reliability;  6)  The applicant  must  seek  reasonable                                                                    
testing  which is  consistent with  forensic practices  that                                                                    
employ scientifically  sound methods; 7) The  applicant must                                                                    
propose  a defense  theory; 8)  Lastly, the  bill encourages                                                                    
applicants to  apply as  soon as  the applications  are made                                                                    
available.                                                                                                                      
                                                                                                                                
10:07:17 AM                                                                                                                   
                                                                                                                                
Co-Chair Stoltze  appreciated the  section of the  bill that                                                                    
would remove DNA  from the database, if the  person is found                                                                    
innocent. He remarked that one  of his constituents was very                                                                    
concerned with that particular issue.                                                                                           
                                                                                                                                
10:07:36 AM                                                                                                                   
                                                                                                                                
Representative  Foster  requested   an  explanation  of  the                                                                    
section of  the bill  regarding those  that plead  guilty in                                                                    
preliminary hearings. Ms. Carpeneti  explained that the bill                                                                    
provides that  a person who  has admitted or  conceded guilt                                                                    
in an official  preceding, which is defined  in statute, may                                                                    
not  be granted  post-conviction  DNA testing.  A guilty  or                                                                    
nolo contendere  plea at the  trial level is  not considered                                                                    
an  admission or  concession of  guilt, for  purposes of  an                                                                    
application for post-conviction DNA testing.                                                                                    
                                                                                                                                
10:09:42 AM                                                                                                                   
                                                                                                                                
Representative  Gara urged  the  committee  to consider  the                                                                    
perspective  of  the  Alaska  Innocence  Project  (AIP).  He                                                                    
pointed out  that there was a  memo in the bill  packet from                                                                    
the  AIP, and  hoped the  organization  would be  a part  of                                                                    
future discussions regarding post-conviction DNA testing.                                                                       
                                                                                                                                
Co-Chair Stoltze agreed with Representative Gara.                                                                               
                                                                                                                                
Representative   Gara   commented   that  there   are   some                                                                    
circumstances when  an innocent person may  admit guilt, and                                                                    
the  bill  limits that  person's  ability  to further  prove                                                                    
their  innocence  through  post-conviction DNA  testing.  He                                                                    
remarked that  in parole hearings, convicts  are often asked                                                                    
if  they  concede to  guilt.  Many  times the  convict  will                                                                    
concede, in order to be  granted parole early. Mr. Carpeneti                                                                    
agreed that  Representative Gara's  concerns are  valid, but                                                                    
furthered that people  need to be held  accountable for what                                                                    
they say under oath.                                                                                                            
                                                                                                                                
10:13:13 AM                                                                                                                   
                                                                                                                                
BILL  OBERLY, EXECUTIVE  DIRECTOR, ALASKA  INNOCENCE PROJECT                                                                    
(via  teleconference), testified  that the  current language                                                                    
of  the   bill  restricts  access  to   post-conviction  DNA                                                                    
testing. He  pointed out  that there is  a zero  fiscal note                                                                    
attached,  because DOL  did not  anticipate  many cases.  He                                                                    
suggested significant changes to  the bill, specifically the                                                                    
removal of the time  restriction in the application process.                                                                    
He assured the committee that  no innocent person would wait                                                                    
to  make  a request  for  testing.  With the  difficulty  in                                                                    
identifying  cases  and  locating  evidence,  the  practical                                                                    
effect   of  the   time  limitation   could  prohibit   most                                                                    
applications.  The AIP  was concerned  about restriction  in                                                                    
testing,  if  the  person  admitted  guilt  in  an  official                                                                    
preceding.  There  should  be  no  restriction  on  innocent                                                                    
claims due to  an admission of guilt, if it  could be proved                                                                    
that their innocent. He added  that requiring someone to pay                                                                    
for own DNA testing would  greatly restrict the innocent. He                                                                    
referred  to the  written testimony  (copy  on file),  which                                                                    
addressed  a procedure  that requires  a judge  to guess  an                                                                    
outcome  of DNA  testing  before ordering  it. The  combined                                                                    
effects  of  the  current restrictions  in  the  bill  would                                                                    
burden rural  communities. He urged the  committee to remove                                                                    
the restrictive language in the bill.                                                                                           
                                                                                                                                
10:19:25 AM                                                                                                                   
                                                                                                                                
Representative  Gara wondered  if  Mr.  Oberly prefered  the                                                                    
current  Senate version  of the  bill, because  it does  not                                                                    
contain  as much  restrictive  language.  Mr. Overly  stated                                                                    
that  SB110 specifically  dealt with  evidence preservation,                                                                    
and does not deal with post-conviction DNA testing.                                                                             
                                                                                                                                
10:22:07 AM                                                                                                                   
                                                                                                                                
Representative  Gara queried  the  standards  judges use  in                                                                    
order  to  grant  DNA  testing.  Mr.  Oberly  explained  the                                                                    
standard  in Alaska  requires the  judge to  guess what  DNA                                                                    
testing  would show  before ordering  the test.  Most states                                                                    
would allow for a test only if the evidence still exists.                                                                       
                                                                                                                                
Representative  Gara  requested  exact language  that  other                                                                    
states  use  regarding that  issue  of  judges ordering  DNA                                                                    
testing. Mr. Oberly agreed to provide that information.                                                                         
                                                                                                                                
10:25:33 AM                                                                                                                   
                                                                                                                                
DENISE   MORRIS,   ALASKA   NATIVE   JUSTICE   CENTER   (via                                                                    
teleconference), expressed concern about  the section of the                                                                    
bill  restricting DNA  testing  because of  an admission  of                                                                    
guilt.  She remarked  that there  may be  a large  number of                                                                    
innocent  individuals among  the native  community, who  may                                                                    
have admitted  guilt. This would prevent  them from applying                                                                    
for  post-conviction  DNA   testing.  She  recommended  that                                                                    
section  of  the  bill  be removed.  She  also  suggested  a                                                                    
representative from AIP join the task force.                                                                                    
                                                                                                                                
Co-Chair Stoltze  stated that he understood  the sensitivity                                                                    
of the issues  in the bill, and apologized  that some people                                                                    
would not get the chance to testify during the meeting.                                                                         
                                                                                                                                
HB  316  was  HEARD  and   HELD  in  Committee  for  further                                                                    
consideration.                                                                                                                  

Document Name Date/Time Subjects
HB 316 AK Innocence Project ELETTER.doc HFIN 3/25/2010 9:00:00 AM
HB 316
HB 316 Sectional.pdf HFIN 3/25/2010 9:00:00 AM
HB 316
HB 316 Gov.Trasmittal Letter.pdf HFIN 3/25/2010 9:00:00 AM
HB 316