Legislature(2009 - 2010)CAPITOL 120
02/15/2010 01:00 PM House JUDICIARY
| Audio | Topic |
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| Start | |
| HB316 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 316 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 316 - POST-CONVICTION DNA TESTING; EVIDENCE
1:14:26 PM
CHAIR RAMRAS announced that the only order of business would be
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."
1:17:07 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), in response
to a question, indicated that she is continuing to dialog with
the Alaska Innocence Project to address concerns expressed
regarding HB 316. Referring to testimony heard at the bill's
last hearing, she relayed that the DOL is committed to creating
a mechanism by which an innocent person can bring a claim to
have his/her evidence looked at again; if a person is innocent,
he/she shouldn't spend a single day in jail, and that's why
there is some urgency with regard to bringing such a claim
forward. The goal of HB 316 is to strike a balance between
those who have been wrongfully incarcerated and those who simply
want another chance to have the courts address their case
without any reasonable basis for doing so.
1:24:11 PM
ORIN DYM, Crime Lab Supervisor, Scientific Crime Detection
Laboratory, Office of the Commissioner, Department of Public
Safety (DPS), stated that the Scientific Crime Detection
Laboratory ("Crime Lab") supports HB 316, and feels strongly
that any post-conviction deoxyribonucleic acid (DNA) testing be
performed at the Crime Lab because such testing pertains to
criminal proceedings and involves criminal evidence, and the
Crime Lab has the necessary experience to handle such evidence.
Furthermore, at the Crime Lab, unknown DNA profiles can be
entered into [the federal] DNA database in order to see if there
are any potential matches, whereas private laboratories wouldn't
be able to do so.
MR. DYM explained that Section 10 clarifies that a person who's
been acquitted can have his/her biological sample removed from
the database. This is a [federal] requirement, but was
inadvertently left out [of State statute]. [Another section of
HB 316] stipulates that enough of a DNA sample be collected so
that the Crime Lab can develop a profile for entering into the
database. He indicated that the legislation pertaining to a new
Scientific Crime Detection Laboratory addresses the bill's
biological evidence retention provisions and any potential
resulting workload.
MR. DYM, in response to a question, explained that removal of a
biological sample, as provided for via Section 10, occurs at the
national level, and so any such sample would be expunged
entirely. In response to other questions, he explained that
although the bill does provide that testing can occur at private
laboratories, the Crime Lab would prefer that it do any such
testing; that no prisoners would be transported to the Crime Lab
for testing; and that the cost of an oral swab is $5.50, and the
cost of analyzing such a swab is about $25; that funding for the
cost of entering samples into the database has already been
appropriated; that the Crime Lab processes about 7,000 samples
per year; and that a person's DNA profile constitutes a series
of numbers - markers in the DNA chain.
REPRESENTATIVE LYNN asked whether a representative of the
defendant could oversee the analysis of the DNA sample.
MR. DYM said that for purposes of safety and maintaining
confidentiality, the Crime Lab's policy prohibits anyone who
doesn't work at the Crime Lab from being present in the
laboratory, and ventured that the same is probably true at
private laboratories for similar reasons. The Crime Lab engages
in quality assurance measures, and to date no one has raised
questions about the quality or integrity of the work conducted
at the Crime Lab. Key for an accurate evaluation of a DNA
sample is access to the database, but a private lab won't have
such access, and so any DNA sample that's sent to a private lab
must still come back to the Crime Lab.
1:36:04 PM
CHAIR RAMRAS asked how long it takes for post-conviction DNA
testing to be completed.
MR. DYM said that once the DOL notifies the Crime Lab that post-
conviction testing is required and the Crime Lab identifies what
evidence needs to be analyzed, the Crime Lab allows up to 30
days for the evidence to be screened, and up to another 30 days
for that evidence to be "worked for DNA" and for profiles to be
developed. The Crime Lab's goal is for no case to take longer
than 30 days for each phase. In response to comments and
questions, he explained that the Crime Lab is already conducting
DNA testing, and that some evidence is being flagged so that
when new technology is developed, that evidence can be retested.
MS. CARPENETI added that although she doesn't have an estimate
of how many cases will result from the passage of HB 316, the
Alaska Innocence Project has indicated that there are lots of
people who will need their cases reexamined under the new
procedure provided by the bill. She indicated that she would
attempt to research this issue further by looking at the types
of cases - those involving felony offenses against a person -
for which the provisions of the bill would apply.
MR. DYM, in response to further questions, relayed that the
Crime Lab is currently receiving an average of 35 requests for
DNA [testing] per month; that it is reducing its backlog - of
approximately 200 cases - every month, and should be caught up
in about a year; that it can handle more requests than it's
currently receiving; that it should have the capacity to handle
70 samples per month once all the analysts are fully trained;
that any given case could contain up to five samples; that once
the current backlog is addressed, the Crime Lab should be well
able to meet any incoming caseload; and that he doesn't
anticipate passage of HB 316 resulting in enough extra work to
warrant requesting funding for an additional person.
1:47:12 PM
MS. CARPENETI, in response to comments and questions, again
explained that HB 316 contains a rebuttable presumption that an
application brought before three years after the date of
conviction is timely, and a rebuttable presumption that an
application brought three or more years after conviction is not
timely but is not necessarily precluded as long as good cause
can be shown for the delay in applying. She mentioned that she
has drafted a proposed amendment stipulating that the
presumption that an application is untimely could be rebutted
for any good cause; this should address concerns expressed by
the Alaska Innocence Project that there are existing Alaska
cases for which the proposed three-year threshold is inadequate.
She also acknowledged that it would be reasonable for the bill
to include "a savings clause" - a provision stipulating that for
those who are currently incarcerated, the three-year threshold
would begin on the date the bill passes. It is important,
however, to have time limits regarding post-conviction DNA
testing, because the sooner such is applied for, the better it
is for everyone, including the defendant who may be wrongfully
incarcerated and the victims of the crime.
MS. CARPENETI relayed that there would also be a forthcoming
amendment to clarify that even someone who pleads guilty or nolo
contendere "at the trial court" could still bring an action for
post-conviction [DNA testing] depending on the facts of the
particular case. This should address the concern that some
people do plead guilty even when they aren't, and the DOL is
happy to clarify that point in the bill. She indicated that
after the bill's new procedure has been in effect for a while,
the DOL might be amenable to expanding the list of who could
qualify for post-conviction DNA testing.
1:51:15 PM
DENISE MORRIS, President/CEO, Alaska Native Justice Center
(ANJC), relayed that the ANJC has three concerns with HB 316.
Alaska's proposed procedure would be more restrictive than that
of any of the other 47 states that provide for [or are
considering providing for] post-conviction DNA testing. One of
the ANJC's concerns pertains to the bill's current preclusion of
those who have pled guilty, because there are a lot of
individuals, particularly within the Native community, who make
plea agreements. According to a recent report provided by the
Alaska Judicial Council (AJC), the number of Alaska Natives that
plead guilty during the court process is alarming; these
individuals do not go to trial and they do not avail themselves
of legal resources for a number of reasons, such as cultural
barriers, misunderstandings, and a lack of attorneys and law
enforcement in rural Alaska.
MS. MORRIS explained that another of the ANJC's concerns
pertains to what she called the three-year time limit. Trying
to find an attorney or anyone to even review one's case within a
three-year timeframe is problematic at best; furthermore, it can
take a long time to conduct such a review once someone is found.
She said she doesn't understand why there should be any time
limit if there is a possibility that an innocent person has been
wrongfully convicted. The ANJC's third concern pertains to the
provision that precludes post-conviction DNA testing if the
person didn't [provide certain evidence] at the time of trial,
because this would penalize the person for following his/her
lawyer's bad advice. She pointed out that during the trial
process, it's hard to understand what's going on, even for
educated individuals, much less for someone who doesn't
understand the process.
MS. MORRIS opined that a person who is wrongfully convicted
should have the ability to have his/her situation corrected.
She noted that the ANJC sees both sides of the issue, because
Alaska Native women are more likely to be murder victims or rape
victims. At the same time, however, the ANJC wants to ensure
that prosecuted individuals are treated fairly and retain the
ability to correct wrongful convictions.
MS. CARPENETI, in response to a question regarding the three-
year threshold, explained that if a person is convicted and a
DNA sample has been taken from him/her in compliance with the
requirements outlined in the DNA database statute, that sample
is entered into the National Crime Information Center (NCIC)
database, which is available to prosecutors and law enforcement
across the country. She said she views the aforementioned
three-year threshold as a guideline, and again opined that it's
better to bring applications for post-conviction DNA testing
earlier rather than later. Even under the bill as currently
written, a person, for good cause, could still bring such an
application after three years.
MS. MORRIS pointed out, however, that the burden would be on the
wrongfully-convicted individual to prove that good cause exists;
as currently written, the bill adds one more burden on the
person attempting to prove his/her innocence. Regardless of how
long it's been since conviction, she opined, there shouldn't be
a threshold at all.
CHAIR RAMRAS asked Ms. Morris what she would propose for
allocating resources if removing the three-year threshold
results in a Crime Lab backlog of 1,000 cases.
MS. MORRIS acknowledged that cost and a lack of State resources
for post-conviction DNA testing is of concern to some, but
pointed out that it's not likely that removing the three-year
threshold would increase the Crime Lab's existing backlog to
1,000 cases, particularly given that the Alaska Innocence
Project currently has only 141 requests from individuals
regarding post-conviction DNA testing.
MS. MORRIS, in response to a question, surmised that it would be
worth looking at what other states have done with regard to
restricting post-conviction DNA testing.
MS. CARPENETI provided members with a 2008 comparison compiled
by the National Conference of State Legislatures (NCSL)
regarding some states' post-conviction DNA-testing laws, and
relayed that she disagrees with Ms. Morris's comment that
Alaska's proposed law would be the most restrictive.
2:05:20 PM
JOSEPH AUSTIN, Member, Board of Directors, Alaska Innocence
Project, after noting that he is a former law enforcement
officer and has been involved in the criminal justice system for
over 35 years, said he supports the Crime Lab conducting all the
post-conviction DNA testing so that the results could be entered
into the national Combined DNA Index System (CODIS). He
expressed concern, however, with what he characterized as the
restrictiveness of HB 316, and offered his understanding that if
New York had had a post-conviction DNA law as restrictive as
what's being proposed for Alaska, in one case involving rape,
five innocent people would still be in jail with the real
perpetrator remaining free.
2:08:10 PM
DOUGLAS MOODY, Deputy Director, Criminal Division, Central
Office, Public Defender Agency (PDA), Department of
Administration (DOA), said that post-conviction DNA testing is a
good idea if there is any chance that an innocent person is in
jail and the guilty person is still running around loose. Post-
conviction DNA testing would give the State the chance to put
the right person in jail. Because the entire criminal justice
system is run by human being, errors are made, and so the idea
of having post-conviction DNA testing is entirely appropriate
and would ensure that guilty people are put in jail, albeit
belatedly due a lack of adequate technology at the time of the
original trial. In response to a question regarding the bill's
current provisions that preclude a person who pleads guilty from
seeking post-conviction DNA testing, he offered his
understanding that the DOL no longer accepts nolo contendere
pleas or plea bargaining. So although the DOL has stated that
it is not its intention for those provisions, which he
characterized as restrictive, to bar those who've felt
pressured, for any number or reasons, into pleading guilty when
they weren't, that's not what the bill says; instead, those
provisions would preclude any reevaluation down the road of
anyone who plead guilty even if he/she did so for some reason
other than that he/she was actually guilty.
MR. MOODY, in response to a question, also characterized as
restrictive the provisions that preclude a person who did not
have DNA testing conducted at trial, and that stipulate that the
applicant not identify a theory of defense inconsistent with
that presented at trial, because those situations are the result
of the applicant's lawyer's decision at trial rather than the
applicant's. In response to further questions, he indicated
that the bill also contains other provisions that would preclude
a person from post-conviction DNA testing as a result of
decisions made at trial by his/her lawyer, and predicted that
the three-year threshold would be interpreted by the courts as a
statute of limitations regardless that the DOL intends for it to
only be a rebuttable presumption. He pointed out that three
years is a very short time, particularly given that it can take
up to at least a couple of years for a direct appeal to go
through the Alaska Court of Appeals - and longer through the
Alaska Supreme Court - and about that long for regular post-
conviction relief applications to go through.
REPRESENTATIVE HOLMES questioned whether the entirety of
proposed AS 12.73.020 - findings required for post-conviction
DNA testing orders - presents too much of a burden for an
applicant.
MR. MOODY surmised that proposed AS 12.73.020(5) would be
difficult to comply with since it requires that an affidavit be
signed by the applicant's trial lawyer; that proposed AS
12.73.020(6) would be difficult to comply with because a person
without a lawyer wouldn't be able to confirm that the evidence
to be tested had been subject to a chain of custody under
conditions sufficient to ensure its reliability; that proposed
AS 12.73.020(7) - which states that the proposed DNA testing is
reasonable in scope, uses scientifically sound methods and is
consistent with accepted forensic practices - would be difficult
for most pro se applicants to comply with; that proposed AS
12.73.020(8) and (9) are problematic because, again, they
outline situations that are the result of the applicant's
lawyer's decision at trial rather than any decision made by the
applicant.
REPRESENTATIVE LYNN, in response to comments and questions,
pointed out that regardless of a person's decisions made at
trial, post-conviction DNA testing might show whether the person
was at the scene of the crime.
MS. CARPENETI in response to comments and a question,
acknowledged that the State has the burden of proving guilt
beyond a reasonable doubt, and that there are a lot of cases
wherein DNA evidence is not present.
2:29:09 PM
REPRESENTATIVE HOLMES, referring to Section 16, which
establishes the task force on standards for the preservation of
evidence, asked Mr. Moody whether the PDA feels that the
inclusion of a member of the defense bar or a representative of
the PDA or the Office of Public Advocacy (OPA) would be
appropriate.
MR. MOODY remarked that although the PDA and the OPA always have
something to contribute to conversations about evidence, it is
up to the legislature to determine who should be included on the
task force. In response to a further question, he explained
that the PDA has submitted a zero fiscal note, and that he does
not anticipate that HB 316, as currently written, would increase
the PDA's workload substantially.
REPRESENTATIVE GRUENBERG questioned that assertion and whether
it means that the PDA doesn't anticipate filing even a single
case as the result of passage of the bill.
MR. MOODY offered that [the last paragraph on page 2 of] the
PDA's fiscal note says:
The new appointments could increase costs due to
attorney review and paralegal resources that must be
applied to process the cases. It is difficult to
predict how many cases or the level of review that
will be required, but the Agency does not predict a
significnat [sic] increase and therefore submits a
zero fiscal note.
MR. MOODY added, "I think we're going to be able to absorb the
ones that come through under the current bill without adding new
staff, because I don't believe it's going to be very many."
REPRESENTATIVE GRUENBERG asked whether that's because the bill
is so restrictive that the proposed post-conviction DNA testing
procedure can't be used at all.
MR. MOODY surmised that the PDA is going to be appointed in the
vast majority of cases involving post-conviction relief, and
noted that it is currently being appointed to such cases now.
So, to an extent, the PDA is already getting appointed and
dealing with such cases within the existing post-conviction-
relief timeframe. Under the bill, the PDA would be dealing with
cases in the future, and, again, the PDA is not anticipating
getting very many. In response to a further question, he said
he is unable to calculate how much it would cost to handle a
case under the bill, but acknowledged that there is a cost
associated with filing an application for post-conviction relief
or a petition for DNA testing, and a fee for the application,
and that that would take some attorney time. Again, the PDA
anticipates being able to absorb any forthcoming workload
created by passage of the bill.
REPRESENTATIVE HERRON asked whether the language, "did not forgo
for tactical reasons", as used in proposed AS 12.73.020(5), is
used elsewhere in statute.
MS. CARPENETI indicated that it isn't, adding that the bill
provides for a remedy that's outside the "regular criminal
prosecution," and this new procedure is not intended to provide
a person with an opportunity to try out different defenses. The
bill is instead meant to be an extraordinary remedy for people
who are mistakenly convicted. Again, though, there will be an
amendment to clarify that a person can bring an application for
post-conviction DNA testing even if he/she pled guilty at the
trial court, because people do plead guilty for a number of
reasons [other than that they are guilty]. Referring to an
earlier comment, she clarified that the DOL still accepts nolo
contendere pleas - they just don't happen very often.
Currently, applications for post-conviction relief generally
require an affidavit signed by the trial lawyer explaining what
he/she did in the lower court and why. Such affidavits don't
preclude a person from bringing a petition for post-conviction
relief, nor will they preclude a person from bringing an
application under the bill. Furthermore, federal law also
requires such affidavits.
2:40:01 PM
REPRESENTATIVE GRUENBERG noted that it can be difficult to
evaluate conflicting testimony; for example, eye witnesses can
see things and all be testifying in good faith, truthfully from
their point of view, and their testimonies can be absolutely
accurate [and yet conflict]. He questioned whether, if, in the
future, a scientific advancement were made that could determine
what had really happened in a particular case, it would be fair
to require a person, now, at the time of his/her trial, to make
decisions in anticipation of that as yet unforeseeable
scientific advancement, and then deny him/her the ability to
bring an application for post-conviction relief when he/she
doesn't do so.
MR. MOODY acknowledged that such wouldn't be fair, but asserted
that the development of new technology would certainly be
considered "good cause" for seeking post-conviction relief, and
so would not necessarily have to have been foreseeable within
three years of the date of conviction.
REPRESENTATIVE GRUENBERG questioned, however, whether that isn't
already the case with the bill as it relates to DNA testing - an
innocent person convicted years ago won't have anticipated the
current advancements in DNA testing and so might have made
decisions at trial that would now preclude him/her from applying
for post-conviction DNA testing.
MR. MOODY acknowledged that blood testing back in 1994, for
example, was much less discriminatory and so may not have been
of any help to the defense. The problem with HB 316 isn't that
a person could argue that DNA testing has vastly improved since
the time of conviction; rather, the problem is that the proposed
remedy hinges in part on a tactical decision made by a lawyer at
the time of trial regarding whether to introduce the results of
any blood testing conducted back then.
REPRESENTATIVE GRUENBERG in response to a comment, argued that
regardless that flaws in the proposed statutes could be fixed at
a later date, the time an innocent person loses in prison can
never be retrieved, and that's what makes [proposed AS
12.73.020(5)] unfair.
2:47:37 PM
RACHEL LEVITT, Director, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), in response
to a question, said she agrees with Mr. Moody's testimony. With
regard to a question posed earlier, she indicated that proposed
AS 12.73.020(5)(A) could have an impact on the OPA's current
practice in that an OPA attorney must keep this provision in
mind when he/she goes to court on behalf of a client; proposed
AS 12.73.020(5)(A) reads in part:
(5) the evidence either
(A) was not subjected to DNA testing, and the
applicant did not waive, or the applicant's lawyer did
not forgo for tactical reasons, the right to request
DNA testing; or
REPRESENTATIVE HOLMES asked whether that provision could put the
attorneys at the OPA in a bind when they are working a case and
perhaps thereby, depending on the defense strategy chosen at the
original trial, cause a client to be barred from applying for
post-conviction DNA testing in the future.
MS. LEVITT said yes, adding that it will be an additional
consideration that OPA attorneys will have to have in mind when
looking at whether or not to request resources for DNA testing
in a case, but the OPA doesn't, at present, have a clear picture
of what impact that will have. It might result in OPA attorneys
requesting DNA testing when they wouldn't ordinarily have done
so otherwise.
REPRESENTATIVE HOLMES surmised that such a change in the OPA's
procedure as a result of retaining that provision in the bill
might also add to the Crime Lab's current backlog.
REPRESENTATIVE GRUENBERG - referring to proposed AS 12.36.200(d)
and the last sentence of proposed AS 12.73.050(c), both of which
state that the applicant shall pay the cost of retrieving the
material to be tested - questioned what that cost would be and
how those provisions would affect the OPA's budget and its
ability to represent other clients.
MS. LEVITT indicated that because the bill as currently written
is fairly restrictive, the OPA does not anticipate receiving a
large number of these cases and so would just be absorbing them
under its current budget. The OPA currently, though, has some
post-conviction relief cases in which evidence issues have
arisen. She added that she doesn't have information regarding
the cost of evidence retrieval.
REPRESENTATIVE GRUENBERG asked Ms. Levitt whether she thinks
that amending the bill to address the concerns expressed by the
Alaska Innocence Project, the PDA, and others would
significantly increase the bill's usefulness to the OPA.
MS. LEVITT indicated that any such changes might result in more
post-conviction DNA testing cases being referred to the OPA.
REPRESENTATIVE GRUENBERG pointed out that in order for the OPA
to then properly utilize the bill if it's so amended, the OPA
must receive more funding.
2:55:50 PM
MS. LEVITT said she would need to look at the specific language
of any such amendments in order to determine their impact on the
OPA.
MS. CARPENETI, in response to comments and questions, explained
that HB 316 addresses the issues of evidence retention and DNA
testing, and that the DNA testing provisions were modeled after
federal law; that she disagrees with the assertion that HB 316
is more restrictive than other pieces of legislation currently
going through the process; and that the DOL thinks this bill is
clearer than those other pieces of legislation.
CHAIR RAMRAS closed public testimony on HB 316, and relayed that
the bill would be held over.
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