Legislature(2009 - 2010)CAPITOL 120
03/01/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR42 | |
| HB283 | |
| HB316 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 42 | TELECONFERENCED | |
| += | HB 283 | TELECONFERENCED | |
| += | HB 316 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 316 - POST-CONVICTION DNA TESTING; EVIDENCE
1:35:44 PM
CHAIR RAMRAS announced that the final 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."
The committee took an at-ease from 1:36 p.m. to 1:39 p.m.
CHAIR RAMRAS, noting that public testimony on the bill had been
concluded, relayed that the committee would next address
amendments to HB 316.
CHAIR RAMRAS made a motion to adopt Conceptual Amendment 1, and
then withdrew Conceptual Amendment 1.
[Note to the reader: There was no Conceptual Amendment 1
included in members' packets, and therefore no text is available
in this document for Conceptual Amendment 1.]
1:42:57 PM
CHAIR RAMRAS made a motion to adopt Amendment 2, labeled 26-
GH2812\A.18, Luckhaupt, 3/1/10, which read:
Page 3, lines 7 - 8:
Delete "biological material contained in or found
on evidence that is obtained in an investigation and
relevant to the prosecution"
Insert "biological material, contained in or
found on evidence, relevant to an investigation and
prosecution"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
1:43:06 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), explained
that Amendment 2 was suggested by the Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), and that it would require
the retention of evidence gathered from a victim of sexual
assault that's not part of the formal investigation or
prosecution at that time but that might be at some point in the
future.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS stated that Amendment 2 was adopted.
1:44:09 PM
CHAIR RAMRAS made a motion to adopt Amendment 3, which read
[original punctuation provided]:
Page 3, line 9:
Following "crime,"
Insert "the person is required to register as a
sex offender,"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
MS. CARPENETI explained that Amendment 3 would extend the period
of time that biological evidence would be kept, to the period of
time that the person convicted of a sex offense has to register
as a sex offender. In some instances, under Amendment 3, the
evidence would be retained for the person's lifetime if he/she
were convicted of a sex offense that required him/her to
register for life. Amendment 3's proposed additional language
is already included in the [Senate companion bill], she added.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS, after ascertaining that there were no further
objections, announced that Amendment 3 was adopted.
1:45:25 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 4,
labeled 26-GH2812\A.11, Luckhaupt, 2/18/10, which read:
Page 3, line 31, following "storage":
Insert "unless the person does not have the
ability to pay the costs"
Page 11, line 18, following "tested":
Insert "unless the applicant does not have the
ability to pay the costs"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that the provisions
Amendment 4 proposes to alter require the person to pay the cost
of evidence retrieval, but the committee has heard testimony
that some people would be financially unable to pay that cost.
Amendment 4, therefore, provides an exemption from that
requirement for those who are indigent and therefore do not have
the financial ability to pay the cost of evidence retrieval.
REPRESENTATIVE DAHLSTROM asked where the funding for such
evidence retrieval would come from.
REPRESENTATIVE GRUENBERG surmised that the State would pay that
cost with general fund (GF) monies.
MS. CARPENETI pointed out that the State would already be paying
that cost anyway if the person is indigent and represented by
the Public Defender Agency (PDA), so she is not sure what would
change with the adoption of Amendment 4. Furthermore, the cost
associated with evidence retrieval would accrue to the local law
enforcement agency where the evidence is stored. She mentioned
that she is also a bit confused with regard to how Amendment 4
would work for those who aren't indigent but still aren't able
to pay the cost of evidence retrieval.
REPRESENTATIVE GRUENBERG surmised that those who are unable to
pay would be assigned a public defender who would then file the
appropriate motions and already have proof of the person's
financial inability to pay.
MS. CARPENETI acknowledged that point.
REPRESENTATIVE GRUENBERG, in response to a question, indicated
that Amendment 4 would clarify the issue; otherwise, he
predicted, the language currently in the bill could be
interpreted to mean that the person is required to pay even if
he/she were indigent.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 4 was adopted.
1:49:52 PM
REPRESENTATIVE HERRON made a motion to adopt Amendment 5,
labeled 26-GH2812\A.17, Luckhaupt, 2/23/10, which read:
Page 4, line 6:
Delete "with proof of delivery by the United
States Postal Service, or"
Insert "by certified mail with proof of delivery
by the United States Postal Service, or by a
comparable delivery method with proof of delivery by"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE HERRON, by way of explanation, indicated his
belief that the term, "proof of delivery by the United States
Postal Service" as currently used in the bill by itself wouldn't
necessarily require proof of delivery to the correct person.
For example, a post office box could be shared by several
people, but under the language currently in the bill, all that's
needed is that the notice be delivered to that post office box.
Under Amendment 5, the notice would have to be signed for by the
correct person.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS, noting that there were no further objections,
announced that Amendment 5 was adopted.
1:50:45 PM
REPRESENTATIVE LYNN made a motion to adopt Amendment 6, labeled
26-GH2812\A.6, Luckhaupt, 2/17/10, which read:
Page 5, lines 5 - 6:
Delete "However, the court may not reverse or
vacate a conviction based solely on a violation of the
provisions of this section."
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
MS. CARPENETI, in response to a comment and question, explained
that the language Amendment 6 proposes to delete is in the bill
mainly because the provision that language is in would be adding
new duties to law enforcement agencies, and so the DOL thinks
it's fair that as long as law enforcement agencies try to
perform those new duties in good faith, that a conviction would
not be reversed or vacated "solely" because of a failure to
perform those new duties. She ventured that a forthcoming
amendment [which later became known as Amendment 7] would better
address this issue by specifying that the conviction would not
be reversed or vacated based solely on a violation of those new
duties as long as the violation occurred in good faith.
1:52:45 PM
REPRESENTATIVE GRUENBERG noted that Amendment 6 would delete the
last sentence of proposed AS 12.36.200(h), whereas, [Amendment
7] would add the words "good faith" to that last sentence;
[Amendment 7] read [original punctuation provided]:
Page 5, line 6:
Following "a"
Insert: "good faith"
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
REPRESENTATIVE GRUENBERG expressed his hope that under
Amendment 7, the burden of proving a law enforcement agency
acted in good faith would be on the prosecution, rather than on
the defendant to prove a lack of good faith.
MS. CARPENETI, in response to a question, opined that
Amendment 6 would not be needed if Amendment 7 were adopted.
REPRESENTATIVE LYNN withdrew Amendment 6.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
1:54:55 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 7
[text provided previously].
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG asked Ms. Carpeneti whether the DOL
would object to a conceptual amendment to Amendment 7 such that
a "good faith violation" would have to be proven by the
prosecution.
MS. CARPENETI said the DOL would not object.
REPRESENTATIVE GRUENBERG made a motion to conceptually amend
Amendment 7 such that the burden of showing good faith shall be
on the prosecution.
MS. CARPENETI, in response to a question, said that such a
change would be fine.
CHAIR RAMRAS, noting that there were no objections, announced
that Amendment 7 was so amended.
REPRESENTATIVE DAHLSTROM removed her objection to Amendment 7,
as amended.
CHAIR RAMRAS announced that Amendment 7, as amended, was
adopted.
1:58:05 PM
REPRESENTATIVE LYNN made a motion to adopt Amendment 8, labeled
26-GH2812\A.7, Luckhaupt, 2/18/10, which read:
Page 8, line 1, following "offense;":
Insert "and"
Page 8, line 4:
Delete "and"
Page 8, lines 5 - 7:
Delete all material.
Page 8, lines 29 - 30:
Delete all material.
Renumber the following paragraphs accordingly.
Page 9, line 27:
Delete "(8)"
Insert "(7)"
Page 10, line 12:
Delete "(12)"
Insert "(11)"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
CHAIR RAMRAS offered his understanding that Amendment 8 would
delete the language that precludes a person who has admitted or
conceded guilt from obtaining post-conviction deoxyribonucleic
acid (DNA) testing, and that forthcoming Amendment 9 [also
addresses that language]; Amendment 9 read [original punctuation
provided]:
Page 8, line 7:
Following "offense;"
Insert the following:
"for purposes of this section, the entry of
a guilty or a nolo contendere plea is not an admission
or concession of guilt;"
Page 8, line 30:
Following "conviction;"
Insert the following:
"for purposes of this section, the entry of
a guilty or a nolo contendere plea is not an admission
or concession of guilt;"
REPRESENTATIVE GRUENBERG offered his understanding that
Amendment 9 is not as inclusive as Amendment 8 and would not
address concessions of guilt that were not contained within a
plea.
2:02:03 PM
MS. CARPENETI concurred that Amendment 8 would completely remove
the requirement that in order to obtain post-conviction
deoxyribonucleic acid (DNA) testing, the person must not have
admitted or conceded guilt in an official proceeding pertaining
to his/her conviction. In contrast, Amendment 9 would add to
that requirement language stating that for purposes of obtaining
post-conviction DNA testing, a plea of guilty or nolo contendere
is not an admission of guilt. The reason for this distinction
is that some people plead guilty or nolo contendere for reasons
other than actually being guilty. She said the DOL believes
that Amendment 8 is too broad, and would allow someone to take
the stand at trial and confess, under oath, to doing something
which they then later deny doing, and this should not be
allowed, whereas entering a guilty plea is something else
altogether; confessions made under oath at trial should preclude
a person from obtaining post-conviction DNA testing.
MS. CARPENETI, in response to a question, explained that for
purposes of requiring a person applying for post-conviction DNA
testing to not have admitted or conceded guilt in an official
proceeding pertaining to his/her conviction, a law enforcement
interrogation would not be considered an official proceeding and
thus any admission of guilt made during such an interrogation
would not preclude the person from later seeking post-conviction
DNA testing. In response to another question, she noted that
during a parole hearing, William Osborne - the defendant in the
U.S. Supreme Court case, District Attorney's Office for the
Third Judicial District v. Osborne - testified that he had
committed the offense, and in the DOL's view, such testimony
should preclude a person from bringing an application for post-
conviction DNA testing.
REPRESENTATIVE GRUENBERG asked whether a defendant has a right
to counsel during a parole proceeding.
MS. CARPENETI said she would research that issue.
2:05:27 PM
DOUGLAS MOODY, Deputy Director, Criminal Division, Central
Office, Public Defender Agency (PDA), Department of
Administration (DOA), explained that defendants get appointed
counsel if their parole is being revoked, but not if they are up
for a discretionary parole-board hearing.
REPRESENTATIVE GRUENBERG surmised that the latter is an example
of an official proceeding wherein a person could make an
admission without benefit of counsel - with very dire
consequences under the bill as currently written. He questioned
whether Amendment 9 could be amended to address the issue of
counsel being present.
MS. CARPENETI reiterated that it's the DOL's position that if a
person admits guilt during a parole hearing, he/she should be
bound by that admission regardless of whether he/she was
represented by counsel during that hearing.
REPRESENTATIVE GRUENBERG expressed disfavor with that position.
MS. CARPENETI, in response to a question, indicated that neither
Amendment 8 nor Amendment 9 would impact existing law.
REPRESENTATIVE GRUENBERG concurred.
REPRESENTATIVE LYNN withdrew Amendment 8.
2:09:09 PM
REPRESENTATIVE LYNN made a motion to adopt Amendment 9 [text
provided previously].
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG expressed interest in hearing how the
PDA, the Office of Public Advocacy (OPA), and the Alaska
Innocence Project view Amendment 9.
REPRESENTATIVE LYNN questioned what constitutes an "official
proceeding" as that term is used in the bill.
MS. CARPENETI explained that an official proceeding is
statutorily defined in AS 11.81.900(b)(41) as:
(41) "official proceeding" means a proceeding
heard before a legislative, judicial, administrative,
or other governmental body or official authorized to
hear evidence under oath;
2:13:26 PM
WINDY HANNAMAN, Deputy Director, Anchorage Office, Office of
Public Advocacy (OPA), Department of Administration (DOA),
characterized Amendment 9 as interesting in that it takes into
consideration that there could be many reasons for a person to
enter a guilty or nolo contendere plea other than that he/she is
actually guilty. Her concern with Amendment 9 as currently
written, she relayed, is that although it states that such pleas
are not admissions or concessions of guilt, there is case law
that indicates that although such pleas may not be admissions of
guilt, individuals cannot [then] contest the underlying factual
basis for the plea itself, and so she is not sure how the
courts, in light of its previous rulings, would then interpret
Amendment 9.
MR. MOODY said Amendment 9 would help alleviate one of the PDA's
concerns, and would improve the bill.
2:15:40 PM
WILLIAM B. OBERLY, Executive Director, Alaska Innocence Project,
after clarifying that his organization is not part of the
defense bar and instead conducts independent reviews of cases
that might involve innocent people who've been wrongfully
convicted, remarked that although Amendment 9 would improve the
bill, it's an insufficient improvement. People might make
admissions of guilt at parole hearings solely in an attempt to
obtain parole, and they would not then be eligible for post-
conviction DNA testing, and neither would youthful defendants or
those who are mentally impaired for one reason or another if
they make an admission of guilt at trial. Precluding such
people from post-conviction DNA testing is unfair and improper,
he opined, and reiterated that he doesn't believe Amendment 9
goes far enough.
MS. CARPENETI, in response to a question, reiterated that some
people plead guilty or nolo contendere for reasons other than
actually being guilty, and said that Amendment 9, if adopted,
would allow such people to apply for post-conviction DNA
testing.
REPRESENTATIVE GRUENBERG indicated that he would research the
concerns expressed by the OPA, the PDA, and the Alaska Innocence
Project further, and then perhaps later, as the bill continues
moving through the process, offer an amendment aimed at
addressing those concerns.
REPRESENTATIVE DAHLSTROM removed her objection to the adoption
of Amendment 9.
CHAIR RAMRAS, after ascertaining that there were no further
objections, announced that Amendment 9 was adopted.
2:19:28 PM
REPRESENTATIVE LYNN made a motion to adopt Amendment 10, labeled
26-GH2812\A.8, Luckhaupt, 2/17/10, which read:
Page 9, lines 3 - 5:
Delete ", and the applicant did not waive, or the
applicant's lawyer did not forgo for tactical reasons,
the right to request DNA testing"
Page 9, lines 6 - 13:
Delete all material and insert:
"(B) was previously subjected to DNA
testing, and the applicant is requesting DNA testing
using a method or technology that is substantially
more probative than the previous DNA testing;"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE LYNN indicated that he is questioning why a
person should be precluded from obtaining post-conviction DNA
testing simply for having followed his/her lawyer's bad advice.
MS. CARPENETI said the DOL opposes Amendment 10, believing it to
strike the wrong balance between providing a procedure that
allows innocent people who've been wrongfully convicted to bring
an action, and providing a procedure that allows guilty people
to keep trying out different defenses. Currently, the bill
would preclude someone who waived the right to request DNA
testing at trial, and the DOL is hoping that in the future, once
the proposed new crime laboratory is set up, that every person -
or his/her lawyer - will request testing at the outset, but in
those situations where the person waived testing at that time,
for whatever reason, then he/she should not get another chance
to try out a different defense later.
REPRESENTATIVE GRUENBERG characterized Amendment 10 as extremely
important in that it addresses the issue of justice. For
example, if an innocent person went to trial many years ago with
very little knowledge and very little input from his/her lawyer
regarding DNA testing, then, if Amendment 10 is not adopted,
he/she would be denied the right to an up-to-date defense that
could completely exonerate him/her. Furthermore, as long as
that innocent person stays in jail, the guilty person will
remain free. So, to keep an innocent person in jail for a
"gotcha" reason would be a real injustice, he concluded.
REPRESENTATIVE LYNN noted that science is changing - and better
DNA testing is being developed - all the time, and so he doesn't
want to deny a person access to the latest technology.
CHAIR RAMRAS agreed.
2:24:05 PM
MS. CARPENETI explained that the DOL believes that when a person
presents a defense, then he/she should not be able to present a
different defense later on, such as what Mr. Osborne did: he
waived DNA testing at trial - while being represented by fine
defense counsel - and then later came back and said he wanted
the evidence tested. She added: "I think that when you have a
lawyer who is helping you make decisions, and ... you choose the
... defense that you want to proceed with, that ... you
shouldn't be able to go back and try something else the next
time; I really don't feel like we are saying ... 'We gotcha,'
under those circumstances."
REPRESENTATIVE GRUENBERG said he would be willing to offer an
amendment to Amendment 10 that would allow the court to consider
evidence presented by both sides and then order post-conviction
DNA testing if the interests of justice compel it to but not if
there really isn't a good reason to. He asked Ms. Carpeneti
whether the DOL would support such a change.
REPRESENTATIVE LYNN indicated that he would be amenable to such
an amendment to Amendment 10.
MS. CARPENETI indicated that she would be willing to consider
the suggestion, but noted that the phrase, "tactical reasons" -
as used in the language Amendment 10 is proposing to delete -
means that the defense lawyer had reasonable grounds for not
having his/her client get DNA testing.
REPRESENTATIVE GRUENBERG expressed a preference for giving the
judge, in each case, the discretion to decide whether to order
post-conviction DNA testing.
MS. CARPENETI indicated that she would have to see how such a
change would relate to the [intent of the bill].
REPRESENTATIVE LYNN indicated agreement with Representative
Gruenberg.
2:26:34 PM
REPRESENTATIVE GRUENBERG made a motion to amend Amendment 10
conceptually such that the judge would be allowed to consider
the application for post-conviction DNA testing and then rule on
it in the interests of justice.
REPRESENTATIVE LYNN expressed support for the amendment to
Amendment 10.
REPRESENTATIVE DAHLSTROM objected.
MS. CARPENETI said she would be willing to discuss some form of
an exception, but, again, the DOL feels that if a person's
lawyer makes a tactical decision to proceed a certain way in a
defense, then post-conviction DNA testing shouldn't then be
available.
REPRESENTATIVE GRUENBERG attempted to clarify:
I'm only talking about this one thing here, in
[Amendment 10] ..., not the whole bill, not the whole
section, because this could have been a tactical
decision that was made yesterday and there's no good
reason for a do-over, [or] it could have been
something that was made 20 years ago and there's a
good reason to allow it to take place. And so what
I'm saying here is, let the judge take into
consideration all the facts and all the arguments, and
do justice.
MS. CARPENETI said that there might be some aspect of the
proposal that they could work on, but she is concerned about its
exact wording.
REPRESENTATIVE GRUENBERG pointed out that it would be a
conceptual amendment to Amendment 10, and surmised that staff
could address Ms. Carpeneti's concerns when drafting it. In
response to a question, he said that the conceptual amendment to
Amendment 10 would provide the court with the authority to
listen to the arguments and determine whether or not to allow
the application for post-conviction DNA testing to be made. In
response to another question, he added that there would have to
be some reason in the interest of justice to grant the
application.
2:30:28 PM
CHAIR RAMRAS surmised, then, that under the conceptual amendment
to Amendment 10, new language would be added that said
[something along the lines of], "The court would have the
authority to listen to the argument and decide in the interest
of justice whether to grant the application."
REPRESENTATIVE GRUENBERG concurred.
MS. CARPENETI indicated that whether she supports the addition
of that language would depend on where in the bill it would be
added.
REPRESENTATIVE DAHLSTROM expressed a preference for having the
amendment to Amendment 10 be drafted by Legislative Legal and
Research Services.
REPRESENTATIVE GRUENBERG withdrew the conceptual amendment to
Amendment 10, and indicated that he would work on it as the bill
continues to move through the process.
CHAIR RAMRAS said he would not vote for Amendment 10 without the
adoption of the conceptual amendment to it.
REPRESENTATIVE GRUENBERG, in response, restated his motion to
adopt the conceptual amendment to Amendment 10. He added that
he would still continue to work on this issue after the bill
moves from committee.
2:33:32 PM
A roll call vote was taken. Representatives Lynn, Gruenberg,
and Ramras voted in favor of the conceptual amendment to
Amendment 10. Representatives Herron and Dahlstrom voted
against it. Therefore, the conceptual amendment to Amendment 10
was adopted by a vote of 3-2.
2:33:56 PM
A roll call vote was taken. Representatives Lynn, Gruenberg,
and Ramras voted in favor of Amendment 10, as amended.
Representatives Dahlstrom and Herron voted against it.
Therefore, Amendment 10, as amended, was adopted by a vote of 3-
2.
2:34:36 PM
REPRESENTATIVE LYNN made a motion to adopt Amendment 11, labeled
26-GH2812\A.9, Luckhaupt, 2/18/10, which read:
Page 9, lines 19 - 23:
Delete all material and insert:
"(8) the applicant identifies a theory of
defense that would establish the applicant's
innocence;"
Renumber the following paragraphs accordingly.
Page 10, line 12:
Delete "(12)"
Insert "(11)"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE LYNN, by way of explanation, read the language
that Amendment 11 would insert into proposed AS 12.73.020(8).
MS. CARPENETI said the DOL has strong reservations about
Amendment 11 because it would eliminate the requirement in
proposed AS 12.73.020(8) that when applying for post-conviction
DNA testing, the applicant not identify a new theory of defense
that is inconsistent with the theory of defense presented at
trial. If Amendment 11 is adopted, she predicted, a person
could say during the trial that he/she committed the homicide,
for example, but it was in self defense, and then in the
application for post-conviction DNA testing instead assert that
he/she was not at the scene of the crime at all.
CHAIR RAMRAS concurred with Ms. Carpeneti's concern.
2:38:28 PM
MS. HANNAMAN, in response to a question, indicated that the OPA
has a concern with the aforementioned requirement because
defense counsel, oftentimes over the objection of the defendant,
gets to choose the strategy at trial. For example, the
defendant may all along be insisting that he/she is innocent,
but the defense attorney instead chooses to go with a different
defense strategy, deciding that his/her client would then have a
better chance at trial. Furthermore, the courts have held that
it's the defendant's attorney who ultimately gets to choose what
strategy to take. In response to comments and a question, she
said she understands the DOL's concern, and suggested that
perhaps an amendment to Amendment 11 could address that concern,
for example, by providing an exemption from the requirement if
the defendant, counter to his/her attorney's strategy, takes the
stand at trial and claims that he/she is innocent, or if, via an
affidavit, he/she swears that all along he/she has maintained
his/her innocence and that his/her attorney, even knowing this,
simply chose to pursue a different strategy.
REPRESENTATIVE GRUENBERG expressed favor with Ms. Hannaman's
suggestion, and predicted that the current language of proposed
AS 12.73.020(8)(A) that says in part, "is not inconsistent"
would engender litigation. He indicated that he would be
willing to work with the DOL on this issue further as the bill
continues moving through the process, rather than attempt to
amend Amendment 11 at this time.
REPRESENTATIVE LYNN, in response to a question, indicated that
he, too, would be amenable to working on the issue further.
MS. CARPENETI said she would be willing to work with the
representatives, but cautioned that it's the DOL's position that
[the requirements outlined in proposed AS 12.73.020] all pertain
to factual findings made by the trial court.
REPRESENTATIVE GRUENBERG indicated that he would still like to
attempt to address the concerns raised by the language currently
in proposed AS 12.73.020(8).
MS. CARPENETI indicated that she, too, would be willing to try.
CHAIR RAMRAS indicated disfavor with Amendment 11 as currently
written.
REPRESENTATIVE LYNN withdrew Amendment 11.
2:44:05 PM
CHAIR RAMRAS made a motion to adopt Conceptual Amendment 12,
which read [original punctuation provided]:
Page 9, line 29 delete "conclusively"
MS. CARPENETI explained that Amendment 12 is being suggested by
the DOL as a compromise in order to address concerns regarding
the requirement - outlined in proposed AS 12.73.020(10)(B) -
that in order to grant an application for post-conviction DNA
testing, there has to be a reasonable probability that the
testing would "conclusively" establish the applicant's
innocence.
CHAIR RAMRAS, after ascertaining that there were no objections,
announced that Amendment 12 was adopted.
2:44:53 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 13,
which read [original punctuation provided]:
Page 10, lines 11-23
Delete all material
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
CHAIR RAMRAS indicated that Amendment 13 would delete the
entirety of proposed AS 12.73.040 - the provision pertaining to
timeliness.
REPRESENTATIVE GRUENBERG observed that Amendment 14 and
Amendment 15 also address that same provision.
CHAIR RAMRAS relayed that Amendment 14, labeled 26-GH2812\A.4,
Luckhaupt, 2/15/10, read:
Page 10, line 12, following "12.73.020(12),":
Insert "there is a presumption of timeliness if
the application is filed before the term of
imprisonment of the applicant for the crime for which
the evidence or biological material is preserved is
completed. This presumption of timeliness may be
rebutted if the court finds that the application is
based solely on information used in a previously
denied application."
Page 10, lines 13 - 23:
Delete all material.
CHAIR RAMRAS then relayed that Amendment 15 read [original
punctuation provided]:
Page 10, lines 18 - 23:
Delete all material and insert:
"three years or more after conviction; this
presumption may be rebutted if the court finds good
cause for filing three years or more after
conviction."
CHAIR RAMRAS remarked that Amendment 13's approach - to delete
the entirety of proposed AS 12.73.040, the provision pertaining
to timeliness - is too aggressive for him.
MS. CARPENETI, in response to comments, clarified that the bill
doesn't have a statute of limitations; instead, it contains a
rebuttable presumption regarding the timeliness of filing an
application for post-conviction DNA testing. This rebuttable
presumption is intended to encourage bringing an action sooner
rather than later if the option is available. She noted that
Amendment 15 in part proposes to eliminate the restriction that
a presumption of untimeliness may only be rebutted if the
applicant was incompetent and that incompetence substantially
contributed to the delay in filing.
2:49:01 PM
MR. MOODY said that Conceptual Amendment 13 would cure the
problem he's raised, that being that some people might not
realize they have reason to file an application for post-
conviction DNA testing until after the proposed three year
timeframe has passed. Moreover, although proposed AS 12.73.040
contains another stipulation that a presumption of untimeliness
may be rebutted for "other good cause", trial courts, he
predicted, are going to treat this provision as a statute of
limitations. In response to a question, he expressed a
preference for Conceptual Amendment 13, opining that the bill
would be better off without proposed AS 12.73.040 as it's
currently written.
A roll call vote was taken. Representative Gruenberg voted in
favor of Conceptual Amendment 13. Representatives Lynn,
Dahlstrom, Herron, and Ramras voted against it. Therefore,
Conceptual Amendment 13 failed by a vote of 1-4.
2:50:45 PM
REPRESENTATIVE HERRON made a motion to adopt Amendment 14 [text
provided previously].
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE HERRON indicated that under Amendment 14, there
would be a presumption of timeliness if the application were
filed anytime during the person's term of imprisonment.
MS. CARPENETI explained that [the DOL's] concern with
Amendment 14 is that some of the people who are convicted of the
crimes for which the bill's proposed new procedure would apply
are going to be in jail for very long time - for example, felony
sexual assault crimes have a maximum sentence of 99 years, as do
homicides - so if a person has information upon which to base an
application for post-conviction DNA testing, it would be a much
better public policy - and better for the person - to encourage
him/her to bring an application sooner rather than later. She
proffered that the DOL's compromise on this issue would be to
stipulate that a timely application shall be brought within 3
years, and to provide that a presumption of untimeliness could
be rebutted for good cause. This is not a big hurdle, but if a
person is actually innocent and has information that could show
that, doesn't it make more sense for him/her to bring an
application for post-conviction DNA testing earlier, rather than
later, and thus get a new trial and be released sooner?
A roll call vote was taken. Representatives Gruenberg and
Herron voted in favor of Amendment 14. Representatives
Dahlstrom, Lynn, and Ramras voted against it. Therefore,
Amendment 14 failed by a vote of 2-3.
2:54:13 PM
REPRESENTATIVE HERRON made a motion to adopt Amendment 15 [text
provided previously].
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
MS. CARPENETI in response to a question, reiterated that
Amendment 15 proposes to eliminate the restriction that a
presumption of untimeliness may only be rebutted if the
applicant was incompetent and that incompetence substantially
contributed to the delay in filing. Furthermore, Amendment 15 -
by eliminating the word "other" - is intended to address Mr.
Oberly's concern that the term, "other good cause" as used in
proposed AS 12.73.040(2)(B) would be interpreted by the courts
as being related to the issue of incompetence. Under Amendment
15, the presumption of untimeliness may be rebutted if the court
finds any good cause.
REPRESENTATIVE GRUENBERG offered his belief that Amendment 15
could be interpreted by the courts such that it would be more
restrictive than the current language its proposing to delete,
language which he characterized as crystal clear.
MS. CARPENETI explained that the DOL has always thought of the
current language in proposed AS 12.73.040 as providing for a
very liberal timeliness presumption, but to the extent that Mr.
Oberly doesn't, the DOL is willing to remove it via
Amendment 15.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS, after ascertaining that there were no further
objections, announced that Amendment 15 was adopted.
MS. CARPENETI, in response to a question, explained that
proposed AS 12.73.010(a) states that only a person convicted of
a felony against a person under AS 11.41 who has not been
unconditionally discharged may bring an application for post-
conviction DNA testing. Therefore, under Amendment 15, a person
who is still on probation or parole could still bring an
application if there is good cause for [the delay in bringing
it].
2:58:12 PM
CHAIR RAMRAS made a motion to adopt Amendment 16, labeled 26-
GH2812\A.16, Luckhaupt, 2/23/10, which read:
Page 15, line 13, following "PRESERVATION":
Insert "AND RETENTION"
Page 15, line 14, following "Preservation":
Insert "and Retention"
Page 16, line 3, following "cataloging,":
Delete "and"
Page 16, line 4, following "materials":
Insert ", and return of property to owners"
Page 16, line 9:
Delete the first occurrence of "and"
Following "materials":
Insert ", and return of property to owners"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
CHAIR RAMRAS explained that Amendment 16 would expand the
proposed task force's duties to include recommending standards
and protocols for the return of property, with the goal being to
develop a mechanism by which property involved in the commission
of a crime could be returned to its owner in an expeditious
manner.
REPRESENTATIVE GRUENBERG said he had no objection.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 16 was adopted.
2:59:04 PM
CHAIR RAMRAS made a motion to adopt Amendment 17, which read
[original punctuation provided]:
Page 15, between lines 24 and 25:
Insert the following:
"(9) the public defender;
(10) a member of the Alaska Senate appointed by
the President of the Senate;
(11) a member of the Alaska House of
Representatives appointed by the Speaker of the
House."
CHAIR RAMRAS, after stating that there was an objection, noted
that Amendment 18, labeled 26-GH2812\A.19, Luckhaupt, 3/1/10,
addresses the same provision; Amendment 18 read:
Page 15, line 24, following "AS 24.65.020":
Insert ";
(9) the public defender;
(10) the director of the office of public
advocacy;
(11) a representative of the Alaska Native
Justice Center"
Page 15, line 25:
Delete "and (6)"
Insert "(6), and (11)"
MS. CARPENETI explained that in order to address concerns that
the membership of the task force being established by the bill
wasn't balanced enough, the DOL has suggested adding the public
defender and a Senator and a Representative to the list of those
who would serve on the proposed task force. Having legislators
on the task force would allow it to also address policy issues.
CHAIR RAMRAS expressed a preference for having legislators serve
on the task force.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 17 was adopted.
3:00:51 PM
REPRESENTATIVE GRUENBERG, referring to Amendment 18 [text
provided previously], made a motion to adopt an amended version
of Amendment 18 as follows:
Page 15, line 24, following "AS 24.65.020":
Insert ";
(9) the representative of the Alaska
Innocence Project;
(10) the director of the office of public
advocacy;
(11) a representative of the Alaska Native
Justice Center"
Page 15, line 25:
Delete "and (6)"
Insert "(6), and (11)"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
CHAIR RAMRAS expressed disfavor with including a representative
from the Alaska Innocence Project.
REPRESENTATIVE GRUENBERG indicated that although he was amenable
to removing the reference to a representative from the Alaska
Innocence Project from Amendment 18, as amended, he does still
want to have the director of the OPA and a representative from
the Alaska Native Justice Center (ANJC) included on the task
force.
CHAIR RAMRAS [although no motion was made] indicated that the
removal of the reference to a representative from the Alaska
Innocence Project would be an amendment to Amendment 18, as
amended. There being no objection, Amendment 18, as amended,
was again amended.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 18, as amended [twice],
was adopted.
3:03:26 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 19,
labeled 26-GH2812\A.13, Luckhaupt, 2/18/10, which read:
Page 16, line 3, following "cataloging,":
Insert "retention, disposal,"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that Amendment 19 would
stipulate that the task force shall also recommend standards and
protocols for the retention and disposal of evidence and
biological material. He characterized Amendment 19 as a
technical amendment.
CHAIR RAMRAS concurred.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 19 was adopted.
3:04:19 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 20,
labeled 26-GH2812\A.14, Luckhaupt, 2/18/10, which read:
Page 16, lines 17 - 20:
Delete all material.
REPRESENTATIVE GRUENBERG said he doesn't know why the meetings
of the proposed task force shouldn't be open meetings or why its
records shouldn't be subject to inspection and copying.
REPRESENTATIVE DAHLSTROM objected.
MS. CARPENETI said that the DOL had originally suggested
[exempting the proposed task force from the provisions of AS
44.62.310, AS 44.62.312, and AS 40.25.110-220 via the inclusion
of Section 16's proposed subsections (f) and (g)] because the
DOL was thinking that the task force would be "pretty technical
and would be dealing with medical records of individuals." She
acknowledged, however, that policy makers and "a broader brush"
[in terms of the task force's duties] have been added to the
bill, and surmised, therefore, that the task force could simply
go into executive session [to address confidential matters].
CHAIR RAMRAS stated that Representative Dahlstrom had removed
her objection, and that Amendment 20 was adopted.
3:05:48 PM
CHAIR RAMRAS made a motion to adopt Amendment 21, which, along
with hand-written changes, read [original punctuation provided
except with regard to the handwritten portions]:
Page 16, lines 28-30
Delete all material
Insert the following:
(c) Notwithstanding any other provision of this
Act, a person whose conviction was entered before July
1, 2010, has until July 1, 2013 to file a claim under
AS 12.73, or a later date if the court finds good
cause for a later filing."
Renumber the following bill sections accordingly.
REPRESENTATIVE DAHLSTROM indicated that she would be objecting
for the purpose of discussion.
CHAIR RAMRAS explained that Amendment 21 would provide that
anyone convicted prior to July 1, 2010, has until July 1, 2013,
to file an application for post-conviction DNA testing.
MS. CARPENETI observed that Amendment 21 also adds a "good
cause" savings clause.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 21 was adopted.
3:06:42 PM
REPRESENTATIVE GRUENBERG indicated that he would not be offering
Amendment 22, labeled 26-GH2812\A.15, Luckhaupt, 2/18/10,
because the language it's proposing to delete has already been
amended via Amendment 21; Amendment 22 read [original
punctuation provided]:
Page 16, lines 28 - 30:
Delete all material.
CHAIR RAMRAS mentioned that there were no further amendments for
the committee to consider.
3:08:46 PM
REPRESENTATIVE DAHLSTROM moved to report HB 316, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
316(JUD) was reported from the House Judiciary Standing
Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB283 Proposed CS v. S.pdf |
HJUD 3/1/2010 1:00:00 PM |
HB 283 |
| HJR42 Proposed amendment S.1.pdf |
HJUD 3/1/2010 1:00:00 PM |
|
| HJR42 Proposed amendment S.3.pdf |
HJUD 3/1/2010 1:00:00 PM |
|
| HB316 Amendment pkt for 3.1.10.pdf |
HJUD 3/1/2010 1:00:00 PM |
HB 316 |