Legislature(2009 - 2010)CAPITOL 120
04/07/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB110 | |
| SB284 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 284 | TELECONFERENCED | |
| + | SB 110 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 110 - PRESERVATION OF EVIDENCE/DNA I.D. SYSTEM
[Contains discussion of some of the provisions of HB 316, and
mention that aspects of HB 316 have been added to Version M of
SB 110.]
1:25:17 PM
CHAIR RAMRAS announced that the first order of business would be
CS FOR SENATE BILL NO. 110(FIN), "An Act relating to the
preservation of evidence and to the DNA identification system."
1:28:32 PM
REPRESENTATIVE HERRON moved to adopt the proposed House
committee substitute (HCS) for CSSB 110(FIN), Version 26-
LS0560|M, Luckhaupt, 4/7/10, as the work draft.
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
He then removed his objection.
CHAIR RAMRAS, after ascertaining that there were no further
objections, announced that Version M was before the committee.
1:29:08 PM
SENATOR HOLLIS FRENCH, Alaska State Legislature, as sponsor of
SB 110, explained that a vast majority of the provisions in the
bill are also in HB 316, which is sponsored by the House Rules
Standing Committee by request of the governor and addresses
evidence preservation and post conviction deoxyribonucleic acid
(DNA) procedures. He said SB 110 was filed last year and
received the support of interested parties, including
Representative Stoltze, the Department of Law, the Department of
Public Safety, the [Alaska] Association of Chiefs of Police, the
[Alaska] Innocence Project, and the Alaska Civil Liberties Union
(ACLU). He relayed that SB 110 was originally an evidence
preservation bill, but has had added to it the post conviction
DNA aspects of HB 316.
SENATOR FRENCH, regarding the preservation of evidence, noted
that while SB 110 requires evidence to be preserved "for the
period of time that the crime remains unsolved", Version M adds,
"or 50 years whichever ends first". He related that that is on
page 2, line 30.
REPRESENTATIVE GRUENBERG expressed concern that if a law
enforcement officer or prosecutor did not want to save evidence,
under the proposed legislation, he/she could declare the crime
solved and dispose of that evidence. He said the related
language in CSHB 316(JUD), Version26-GH2812\R, on page 2, line
25, through page 3, line 13, is more specific, and that language
read as follows:
Sec. 12.36.200. Preservation of evidence.
(a) Except as otherwise provided in this section and
notwithstanding AS 12.36.010 - 12.36.090, an agency
shall preserve
(1) evidence that is obtained in
relation to an investigation and relevant to the
prosecution of a crime under AS 11.41.100 - 11.41.130,
11.41.410, or 11.41.434 for the following periods:
(A) 18 months after the entry of a
judgment of conviction of the crime;
(B) if the conviction for the
crime is appealed, one year after the judgment becomes
final by the conclusion of direct review; or
(C) if a timely application for
post-conviction relief is filed within the periods
stated in (A) and (B) of this paragraph, the date that
a judgment dismissing or denying the application for
post-conviction review becomes final;
(2) biological material, contained in
or found on evidence, relevant to an investigation and
prosecution of a person convicted of a felony under AS
11.41, until the person is unconditionally discharged
for the crime, until the person is not longer required
to register as a sex offender, or until the periods of
time provided in (1) of this subsection have expired,
whichever is longest; biological material must be
preserved in an amount an manner that is sufficient to
develop a DNA profile under technology available at
the time that the biological material is preserved.
REPRESENTATIVE GRUENBERG said he likes the 50-year aspect of
Version M, but reiterated his concern that someone could throw
out the evidence and declare the investigation over. He asked
Senator French if he would consider adding the language from HB
316.
SENATOR FRENCH indicated that he would prefer not to include
that language, noting that language on page 3, subsection (d),
beginning on line 22, contains the protections that
Representative Gruenberg is seeking.
1:36:03 PM
SENATOR FRENCH noted that while both bills set up a task force,
as shown on page 14, line 12, Version M would add the Alaska
Native Justice Center to that task force. He told the committee
that his intent was to add return of property provisions that
Senator Dyson and others have been working on over the years;
however, that language did not make it into Version M.
CHAIR RAMRAS inquired of his staff whether that is an issue that
is included in an upcoming amendment. [No answer is audible.]
1:40:14 PM
WILLIAM OBERLY, Executive Director, Alaska Innocence Project,
testified that SB 110 is the product of the hard work of many
interested parties, but with compromise made by everybody. He
expressed his hope that evidence from old cases that is
currently in the possession of law enforcement agencies will be
retained until after the task force makes its report regarding
the most appropriate processes for evidence retention.
1:41:50 PM
JEFFERY MITTMAN, Alaska Civil Liberties Union (ACLU) of Alaska,
stated, "We join in the comments of the Innocence Project and
also support this bill."
1:42:37 PM
REPRESENTATIVE GRUENBERG restated his previous concern regarding
preserving evidence.
SENATOR FRENCH, in response to Representative Gruenberg,
explained that under Version M, no biological evidence may be
destroyed until the individual convicted with that evidence,
his/her attorney, the public defender agency, and the district
attorney are notified.
CHAIR RAMRAS noted that that language appears in subsection (d)
on page 3, line 22, through page 4, line 10.
SENATOR FRENCH said he thinks Representative Gruenberg's concern
that someone would throw out evidence would be alleviated to a
large degree by the provisions of subsection (d). He added that
the task force, which would be created by the bill, would
address many of these concerns and "bring to these issues a
collective wisdom of a broad array of criminal justice experts."
He stated his assumption that that task force would then present
any concerns found in the bill to the legislature.
1:45:04 PM
REPRESENTATIVE GRUENBERG concurred with respect to biological
evidence. However, he observed that the language in [paragraph
(1)], on page 2, lines 28-30, of Version M, involves non-
biological evidence. He then offered his understanding that in
HB 316, language regarding non-biological evidence is found on
page 2, line 25, through page 3, line [6], while language
regarding biological evidence is found on page 3, lines 7-13
[text provided previously].
CHAIR RAMRAS offered his understanding that the main focus of
the bill is on domestic violence and sexual assault.
REPRESENTATIVE GRUENBERG pointed out, however, that the bills
address both biological and non-biological evidence. He asked
if there would be any "fall-out" between present time and when
the task force issues its report.
1:47:08 PM
SENATOR FRENCH related that during his six years as state
prosecutor, he was unaware of anyone summarily disposing of
evidence for any reason, and he said he would be stunned if that
were to occur between now and the time the task force comes back
with its report.
1:47:47 PM
CHAIR RAMRAS expressed satisfaction with the discussion that has
transpired between the Office of the Attorney General, Senator
French's office and his own office.
REPRESENTATIVE GRUENBERG inquired whether anyone else on the
committee would like the issue pursued further. [No one
commented.]
1:48:18 PM
REPRESENTATIVE GATTO referred to the language beginning on page
3, line 22, which says that "An agency required to preserve
biological evidence under (a) of this section may destroy
biological evidence before the expiration of the time period in
(a)(2) of this section" if the agency mails a certified delivery
of notice to certain people, [as previously referenced by
Senator French]. He indicated that mailing a notice does not
guarantee that the notice is received.
1:49:07 PM
SENATOR FRENCH offered his understanding that the term
"certified delivery notice" would mean that the person who
receives the notice would [sign for it]. Furthermore, he
highlighted the language on page 4, lines 6-10, which read as
follows:
(3) no person who is notified under (2)
of this subsection, within 120 days after receiving
the notice,
(A) files a motion for testing of
the evidence; or
(B) submits a written request for
continued preservation of the evidence.
1:49:47 PM
REPRESENTATIVE GATTO pointed out, though, that the key word is
"mails". He opined that it does not matter if the address turns
out to be wrong or the person is not able to read English, for
example. He stated his belief that that does not constitute a
significant notification. He surmised that the goal is to
ensure that the notification has been received by a recipient.
1:50:45 PM
REPRESENTATIVE HERRON recalled that this issue has been visited
in previous hearings, during which a conceptual amendment had
been adopted to require acknowledgment of receipt, so that the
sender knows that the intended recipient actually received the
missive.
SENATOR FRENCH asked if [Representative Gatto] would like a
requirement for "return proof of delivery."
REPRESENTATIVE GATTO said he would like a requirement for
"return receipt requested".
CHAIR RAMRAS asked Senator French if he finds that suggestions
acceptable.
SENATOR FRENCH responded, "That's seems reasonable to me."
1:51:37 PM
SENATOR FRENCH covered changes that were made to HB 316 [in the
second part of SB 110], with the acquiescence of the Department
of Law. He noted that language requiring applicants to pay
costs of evidence retrievable has been deleted. He said
timeliness provisions, which are in two parts of the bill, have
been changed. The most significant change, he noted, is on page
15, lines 4-6. He said the issue is regarding which prisoners
now in prison can ask for new testing of DNA. Under SB 110,
prisoners would have 10 years from the day the bill would pass
to bring forth a challenge. The federal law provides that
people currently in prison have an unlimited amount of time, and
SB 110 would be more stringent.
1:53:53 PM
REPRESENTATIVE GRUENBERG said he is still troubled by the issue
he raised previously - that someone could destroy evidence
prematurely.
SENATOR FRENCH said that the intentional destruction of evidence
would "put someone in the crosshairs of a prosecution."
REPRESENTATIVE GRUENBERG pointed out, though, that the
prosecution could say, "We're permitted to do it under this
law."
SENATOR FRENCH stated that he does not share that concern.
1:55:21 PM
SENATOR FRENCH directed attention to language on page 7, lines
10-14, which he said addresses the level of guilt that a
defendant can have admitted to and still get a DNA test done in
the future, and which read as follows:
(C) the applicant did not admit or concede guilt under
oath in an official proceeding for the offense that
was the basis of the conviction or a lesser included
offense except that the court in the interest of
justice may waive this requirement.
SENATOR FRENCH offered his understanding that the House
Judiciary Standing Committee agreed that the entry of a guilty
or a nolo contendere plea is not an admission of guilt. The
Department of Law agrees to that, he noted. He said a
conceptual amendment is needed so that the language on page 7,
beginning on line 31, parallels the aforementioned language on
lines 10-14.
SENATOR FRENCH said the next provision is a deletion of the
requirement for an attorney affidavit. He indicated that
locating the attorney who worked on a particular case could be
difficult. He mentioned another provision that was deleted,
which he indicated had to do with a requirement related to
evidence sought to be tested as part of the investigational
prosecution. Senator French directed attention to page 8, lines
22-27, which read as follows:
(9) the proposed DNA testing of the
specific evidence may produce new material evidence
that would
(A) support the theory of defense
described in (7) of this section; and
(B) raise a reasonable probability
that the applicant did not commit the offense;
SENATOR FRENCH said the federal DNA testing bill was leaned on
heavily as the gold standard when drafting SB 110. He said when
he found that the federal bill was passed by a Republican House
and Senate and signed by President George W. Bush, it gave him
confidence that the bill was not "leaning too far in the wrong
direction."
1:58:23 PM
REPRESENTATIVE GATTO referred back to language in subparagraph
(C), on page 7, lines 10-14 [text previously provided], and
asked the bill sponsor to explain how a person could say he/she
is guilty, without that being an acceptable guilty plea.
SENATOR FRENCH, regarding "the entry of a guilty or nolo
contendere plea", said innocent people plead guilty with some
regularity - for example, to take the fall for a relative,
because he/she does not understand the system, or doesn't
understand English - and this language is trying to prevent
that.
1:59:54 PM
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on SB 110.
2:00:35 PM
CHAIR RAMRAS moved to adopt Conceptual Amendment 1, such that
"standards for return of property" is added to duties of the
task force on page 14, line 1.
REPRESENTATIVE HOLMES objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG suggested that language should instead
be added to subsection (d), on page 14, lines 23-27.
The committee took a brief at-ease at 2:01 p.m.
2:02:15 PM
CHAIR RAMRAS withdrew his motion to adopt Conceptual Amendment
1.
CHAIR RAMRAS moved to adopt Conceptual Amendment 2, on page 14,
line 27, following paragraph (2), to insert a paragraph (3),
such that "standards for return of property" is added to duties
of the task force. There being no objection, Conceptual
Amendment 2 was adopted.
2:03:00 PM
CHAIR RAMRAS moved to adopt Conceptual Amendment 3, to conform
the language on page 7, line 31, through page 8, line 3, with
the language on page 7, lines 10-14.
REPRESENTATIVE HOLMES objected for purposes of discussion.
2:04:32 PM
The committee took a brief at-ease.
2:05:08 PM
CHAIR RAMRAS withdrew Conceptual Amendment 3.
2:05:16 PM
REPRESENTATIVE HOLMES moved to adopt Conceptual Amendment 4, as
follows:
Page 7, line 31, through page 8, line 3:
Delete all material
Insert "(3) the applicant did not admit or
concede guilt under oath in an official proceeding for
the offense that was the basis of the conviction or a
lesser included offense, except that the court in the
interest of justice may waive this requirement; for
the purposes of this subparagraph, the entry of a
guilty or nolo contendere plea is not an admission or
concession of guilt;"
CHAIR RAMRAS asked if there was any objection to Conceptual
Amendment 4. There being no objection, it was so ordered.
2:06:25 PM
REPRESENTATIVE GATTO moved to adopt Conceptual Amendment 5, on
page 3, line 27, such that the words "return receipt requested"
would be added where the bill drafter thinks it belongs. There
being no objection, Conceptual Amendment 5 was adopted.
2:06:56 PM
REPRESENTATIVE HERRON moved to report the proposed House
committee substitute (HCS) for CSSB 110(FIN), Version 26-
LS0560\M, Luckhaupt, 4/7/10, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, HCS CSSB 110(JUD) was reported from
the House Judiciary Standing Committee.
2:07:31 PM
CHAIR RAMRAS moved to adopt the proposed House Concurrent
Resolution, Version 26-LS1644\A, Luckhaupt, 4/6/10, as a work
draft. There being no objection, it was so ordered.
CHAIR RAMRAS [moved to report] the proposed House Concurrent
Resolution, Version 26-LS1644\A, Luckhaupt, 4/6/10, out of
committee with individual recommendations. There being no
objection, the House Concurrent Resolution [which later became
HCR 25] was reported from the House Judiciary Standing
Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 SB110 Sponsor Statement.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 110 |
| 02 SB110 Sectional Analysis.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 110 |
| 03 CSSB 110(FIN) Version C.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 110 |
| 04 SB0110-4-1-031510-FIN-N.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 110 |
| 05 SB0110-5-1-031510-DPS-N.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 110 |
| 06 SB0110-6-2-031510-LAW-Y.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 110 |
| 07 SB110 Bill v. A.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 110 |
| 08 SB110 Articles.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 110 |
| 01 SB284 Sponsor Statement.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 02 SB284 Sectional 4.2.10.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 03 SB 284 Bill version P.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 04 SB284 DOA Fiscal Note.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 05 SB284 OOG Fiscal Note.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 06 SB284 AG analysis 2.19.10.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 07 SB284 Bullard memo 3.17.10.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 08 SB284 Relevant Statutes.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 09 SB284 Support.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| 10 SB284 Articles.pdf |
HJUD 4/7/2010 1:00:00 PM |
SB 284 |
| Proposed HJUD CS version M.pdf |
HJUD 4/7/2010 1:00:00 PM |