Legislature(2009 - 2010)CAPITOL 120

02/10/2010 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 319(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
         HB 316 - POST-CONVICTION DNA TESTING; EVIDENCE                                                                     
2:01:11 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."                                                                                
2:03:58 PM                                                                                                                    
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section, Criminal  Division, Department  of Law  (DOL), proffered                                                               
that HB  316 attempts to  find a  balance, and that  it addresses                                                               
two important issues of law:   one, evidence retention, and, two,                                                               
post-conviction  deoxyribonucleic acid  (DNA) testing.   Both  of                                                               
these issues  have countervailing  considerations.   The evidence                                                               
retention  provisions of  the bill  would adopt  new requirements                                                               
for  law  enforcement  in  Alaska,  and  the  DOL  is  proceeding                                                               
cautiously  in  this  regard  because  law  enforcement  agencies                                                               
across the state,  in both large and small  communities, would be                                                               
asked to  retain evidence for  significant periods of time.   The                                                               
bill, therefore,  addresses only the  most serious of  crimes and                                                               
the crimes most  likely to have evidence that could  be needed at                                                               
a  later date  for purposes  of  cold case  prosecution or  post-                                                               
conviction  DNA   testing.     Currently,  the   bill's  evidence                                                               
retention provisions would apply  to homicides, sexual assault in                                                               
the  first degree  crimes, and  sexual abuse  of a  minor in  the                                                               
first degree crimes.                                                                                                            
MS. CARPENETI  relayed that  the bill  divides evidence  into two                                                               
groups:   physical evidence,  such as  cars, watches,  money, and                                                               
other similar  items; and biological  material, which  is defined                                                               
in proposed AS 12.36.200(k)(2) as:                                                                                              
         (A) the contents of a sexual assault forensic                                                                          
     examination kit;                                                                                                           
     (B)   semen,   blood,   hair,  saliva,   skin   tissue,                                                                    
     fingernail  scrapings, bone,  bodily  fluids, or  other                                                                    
     identifiable human  bodily material, collected  as part                                                                    
     of a criminal investigation;                                                                                               
      (C) a slide, swab, or test tube containing material                                                                       
     described in (B) of this paragraph; and                                                                                    
     (D) swabs or cuttings from items that contain material                                                                     
     described in (B) of this paragraph;                                                                                        
MS.  CARPENETI,   with  regard  to  proposed   subparagraph  (D),                                                               
explained that  this provision addresses, for  example, a cutting                                                               
from  the  seat of  a  car  where a  rape  occurred;  in such  an                                                               
instance, it would be the cutting  that would be retained and not                                                               
the car  itself.  The periods  of retention and the  treatment of                                                               
evidence  would  be different  for  the  two types  of  evidence.                                                               
Physical evidence  pertaining to crimes against  the person would                                                               
be  kept until  such  time  as the  appeal  process  has run  its                                                               
course.   Biological material would  be kept until  the defendant                                                               
has  been  unconditionally  released  -  after  probation  and/or                                                               
parole has been served.                                                                                                         
2:07:36 PM                                                                                                                    
MS. CARPENETI said that HB  316 generally tracks federal law, and                                                               
is  somewhat   more  limited  than  other,   similar  legislation                                                               
currently moving through the process.   One aspect of the bill is                                                               
that it  specifically provides that  each law  enforcement agency                                                               
shall adopt written policy pertaining  to evidence collection and                                                               
retention, though the various law  enforcement agencies will have                                                               
different procedures depending on their size and capabilities.                                                                  
REPRESENTATIVE GRUENBERG said he  strongly supports the retention                                                               
of evidence, but  is concerned about the  fiscal implications for                                                               
law enforcement agencies.                                                                                                       
MS.  CARPENETI relayed  that  over  the years,  the  DOL has  had                                                               
discussions [with  municipal law enforcement  agencies] regarding                                                               
other iterations  of this  bill, and when  a similar  measure was                                                               
heard  in  the  Senate  last year,  such  agencies  expressed  no                                                               
opposition.   In response to  a question, she offered  her belief                                                               
that  Village  Public  Safety   Officers  (VPSOs)  are  certainly                                                               
capable of  preserving evidence in  a safe  way so that  it isn't                                                               
tampered with,  and she  sees no reason  why VPSOs  couldn't take                                                               
good care  of evidence.  She  noted that the task  force the bill                                                               
proposes  to create  would address  the  specifics of  preserving                                                               
evidence  in a  safe manner  so that  it could  be of  use in  20                                                               
years, for example.                                                                                                             
MS.  CARPENETI explained  that HB  316  also provides  procedures                                                               
allowing for  a law enforcement  agency to return evidence.   For                                                               
example, if a car hits another car  that in turn hits a third car                                                               
and  a death  results,  the car  in the  middle  of the  accident                                                               
needn't be kept  for purposes of prosecution, and  people want to                                                               
get their  property back whenever possible.   Currently, however,                                                               
such would  be difficult because  prosecutors would  be concerned                                                               
about authorizing the return of  property, but under the proposed                                                               
procedures,  if  everyone is  notified  and  nobody objects,  the                                                               
property  can  be  returned.   Furthermore,  the  bill  adopts  a                                                               
procedure  for  notifying those  convicted  as  a result  of  the                                                               
evidence,  their attorneys,  and the  prosecuting authority,  and                                                               
provides a judicial  procedure for those objecting  to the return                                                               
of property.                                                                                                                    
MS. CARPENETI  said that  the bill  also provides  that if  a law                                                               
enforcement  agency does  not follow  the procedure  adopted, the                                                               
court  may order  the  remedy it  determines  to be  appropriate;                                                               
however, the  bill does  provide that the  court can't  reverse a                                                               
conviction  based solely  on a  violation  of evidence  retention                                                               
2:14:32 PM                                                                                                                    
MS. CARPENETI said that although Alaska's existing post-                                                                        
conviction  relief procedures  were  upheld by  the U.S.  Supreme                                                               
Court,  it's probably  a good  idea to  set out  statutes dealing                                                               
with  post-conviction   DNA  testing.     House  Bill   316  sets                                                               
standards, and  balances the right  of a person, in  the unlikely                                                               
event  that he/she  has been  wrongfully convicted,  to bring  an                                                               
application for  post-conviction DNA testing, against  the rights                                                               
of victims  and others  to depend  on perfectly  good convictions                                                               
that were fairly  found.  The bill requires an  applicant to file                                                               
an affidavit  stating that he/she  is not guilty, did  not commit                                                               
the  offense  he/she  was convicted  of  or  any  lesser-included                                                               
offense, was not an accomplice,  and no had other relationship to                                                               
the crime.                                                                                                                      
MS.  CARPENETI went  on to  explain that  the bill  provides that                                                               
someone who has  been convicted, that has had  an opportunity for                                                               
an appeal,  and that has  had an opportunity  for post-conviction                                                               
applications on  other bases, should not  get another opportunity                                                               
to fine tune  the legal basis for his/her conviction.   The bill,                                                               
instead, is intended  to allow a person who  is actually innocent                                                               
of the  charges to have  another opportunity to raise  that point                                                               
in  front of  the court.   She  surmised that  some people  would                                                               
prefer that  the bill open up  convictions in order to  fine tune                                                               
what charge the person was convicted  of or in order to fine tune                                                               
a sentence  in particular, but  HB 316  doesn't do that.   Again,                                                               
instead, the  bill sets  up a  procedure for  people who  did not                                                               
commit the crime to then bring  an application and have the issue                                                               
heard in front of the court.                                                                                                    
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]                                                                   
MS. CARPENETI said that an  applicant, under those circumstances,                                                               
must file  an affidavit  saying, under  penalty of  perjury, that                                                               
he/she   did    not   commit   the   crime,    thereby   exposing                                                               
himself/herself to further prosecution if  it is found that post-                                                               
conviction DNA  testing confirms that that  person committed that                                                               
crime and  is guilty  of the offense.   So there  is a  risk, she                                                               
2:17:09 PM                                                                                                                    
REPRESENTATIVE HERRON asked about those  who plead guilty but are                                                               
actually innocent.                                                                                                              
MS.   CARPENETI    noted   that   the   language    of   proposed                                                               
AS 12.73.020(9) says that  one of the things that  the court must                                                               
find [before  it orders post-conviction  DNA testing] is  that if                                                               
the applicant was  convicted after a trial, that  the identity of                                                               
the perpetrator was  a disputed issue at trial.   She offered her                                                               
belief  that this  language recognizes  that  innocent people  do                                                               
plead guilty  for reasons  other than  that they  are guilty.   A                                                               
person could  not, however, testify  in court that  he/she killed                                                               
someone in self-defense  and then later bring  an application for                                                               
post-conviction relief  claiming to  actually be innocent  of the                                                               
crime altogether.                                                                                                               
REPRESENTATIVE HERRON expressed an  interest in amending the bill                                                               
[to address this issue further].                                                                                                
REPRESENTATIVE  LYNN offered  his  understanding  that the  term,                                                               
"lesser-included offense"  means that  if someone  were convicted                                                               
of  homicide,   then  the   lesser-included  offenses   would  be                                                               
manslaughter  and  other, lesser  degrees  of  killing, not,  for                                                               
example, the  crimes of burglary  or speeding or any  other thing                                                               
that  he/she could  also  be charged  with  under the  particular                                                               
facts of the case.                                                                                                              
MS.  CARPENETI   concurred,  and  again  noted   that  the  post-                                                               
conviction relief  application provisions of the  bill only apply                                                               
to felony crimes against a  person:  homicides, sexual assault in                                                               
the  first degree  crimes, and  sexual abuse  of a  minor in  the                                                               
first degree crimes.                                                                                                            
2:21:36 PM                                                                                                                    
REPRESENTATIVE GRUENBERG, referring  to proposed AS 12.73.020(9),                                                               
said he  could envision  a situation in  which a  defendant might                                                               
not  have  disputed the  issue  of  identity due  to  ineffective                                                               
counsel,  and  expressed an  interest  in  amending the  bill  to                                                               
address that point.                                                                                                             
MS. CARPENETI,  mentioning that post-conviction relief  is a very                                                               
complicated  area of  law, pointed  out  that ineffectiveness  of                                                               
counsel is  another basis for  bringing an application  for post-                                                               
conviction relief.   In response  to a question, she  offered her                                                               
belief that if  ineffectiveness of counsel were the  basis for an                                                               
application,  then DNA  testing  could be  ordered  if the  court                                                               
found it appropriate.                                                                                                           
MS.  CARPENETI  noted that  the  provisions  pertaining to  post-                                                               
conviction  DNA testing  are based  largely on  federal law,  and                                                               
[under proposed AS 12.73.020,] also  require, among other things,                                                               
that the evidence to be tested  was subject to a chain of custody                                                               
such that it was  preserved in a way that it  could be tested and                                                               
the results  relied upon; and  that the defendant  requesting the                                                               
testing identify  a theory  of defense  that is  not inconsistent                                                               
with  the  theory  of  defense  posed  at  trial.    This  latter                                                               
requirement is intended to ensure  that a defendant doesn't claim                                                               
during  the trial  that the  person he/she  killed was  killed in                                                               
self defense, for example, but  then, for testing purposes, claim                                                               
that he/she wasn't  at the scene at all and  is therefore totally                                                               
innocent.  The DOL  is trying to, in a fair  way, draw lines with                                                               
regard  to  who could  qualify  for  post-conviction DNA  testing                                                               
under the bill.                                                                                                                 
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
REPRESENTATIVE GRUENBERG said  he could see a  situation in which                                                               
a defendant  didn't raise  a particular  theory at  trial because                                                               
there wasn't yet any scientific evidence to support it.                                                                         
2:26:12 PM                                                                                                                    
MS.  CARPENETI went  on to  explain  that in  applying for  post-                                                               
conviction DNA testing under the  bill, the defendant must submit                                                               
an affidavit  - a sworn  statement -  that he/she did  not commit                                                               
the  offense  for  which  he/she was  convicted,  or  any  lesser                                                               
included offense,  did not solicit  another person to  commit the                                                               
offense, did  not aid or  abet in  the planning or  commission of                                                               
the offense, and  did not admit or concede guilt  for the offense                                                               
in  any official  proceeding.   On that  latter requirement,  she                                                               
said that the DOL believes  that people should be responsible for                                                               
the  statements  they  make during  such  proceedings,  and  that                                                               
people should  be required to  declare that they are  innocent in                                                               
order  to obtain  post-conviction DNA  testing.   The application                                                               
must also  contain a description  of the prior  testing conducted                                                               
on a particular piece of evidence.                                                                                              
REPRESENTATIVE LYNN questioned why a  person in jail for life for                                                               
killing someone  would be concerned  about being found  guilty of                                                               
MS.  CARPENETI acknowledged  that for  some people,  the risk  of                                                               
being  found guilty  of perjury  would not  necessarily have  any                                                               
measurable  deterrent  effect.     She  mentioned  that  lawyers,                                                               
however, as officers of the  court, are responsible [for ensuring                                                               
that  their clients  don't commit  perjury].   In  response to  a                                                               
question, she  recounted that  in [the  U.S. Supreme  Court case,                                                               
[District Attorney's  Office for  the Third Judicial  District v.                                                             
Osborne], Mr.  Osborne refused  to say that  he was  innocent and                                                             
instead only  stated that he  would be either guilty  or innocent                                                               
based upon  the results of  DNA testing.   She again  opined that                                                               
this proposed procedure  should be limited to only  those who are                                                               
willing to say they are  innocent, particularly given that at the                                                               
point  in time  that  they would  apply  for post-conviction  DNA                                                               
testing, they  would have already  had a trial, gone  through the                                                               
appeal process,  had an opportunity  to petition a  higher court,                                                               
and had other post-conviction relief remedies available to them.                                                                
REPRESENTATIVE GRUENBERG noted that a  person could enter what he                                                               
called a  "guilty but not  mentally responsible" plea.   He asked                                                               
whether entering  such a plea  would preclude the  defendant from                                                               
applying for post-conviction DNA testing under the bill.                                                                        
MS.  CARPENETI indicated  that  such a  plea  would preclude  the                                                               
defendant from applying, but asked  to be allowed to research the                                                               
issue further to confirm that point.                                                                                            
2:30:53 PM                                                                                                                    
MS. CARPENETI then  reiterated that under the bill,  in order for                                                               
a  judge to  order  post-conviction DNA  testing,  the crime  the                                                               
person is convicted of has to  be a felony crime against a person                                                               
under  AS 11.41;  the aforementioned  required affidavit  must be                                                               
submitted;  and the  person must  not have  admitted or  conceded                                                               
guilt in an official proceeding.   Furthermore, the evidence must                                                               
have been  obtained as  part of the  investigation of  the crime,                                                               
and the evidence  must either not have been tested  and the right                                                               
to  testing not  waived, or  was tested  but the  applicant wants                                                               
more  sophisticated DNA  testing  to be  conducted.   Again,  the                                                               
evidence must have  been subject to a chain of  custody such that                                                               
it has been preserved in a  way that any testing results would be                                                               
accurate; the  defendant requesting  the testing must  identify a                                                               
theory of  defense not  inconsistent with  the theory  of defense                                                               
posed  at trial,  [and claim  that] the  testing would  establish                                                               
his/her innocence;  and if  the applicant  was convicted  after a                                                               
trial,  the  identity of  the  perpetrator  has  to have  been  a                                                               
disputed  issue at  trial.    Under the  bill,  there  is also  a                                                               
requirement  that  there be  a  reasonable  probability that  the                                                               
requested testing  will produce  new evidence that  would support                                                               
the  new  defense  theory and  could  establish  the  defendant's                                                               
MS. CARPENETI  mentioned that  HB 316  also contains  a provision                                                               
addressing  timeliness;   under  that   provision,  there   is  a                                                               
presumption that an application  brought before three years after                                                               
the  date of  conviction is  timely,  and a  presumption that  an                                                               
application brought three  or more years after  conviction is not                                                               
timely  but is  not necessarily  precluded  as long  as any  good                                                               
cause can be shown for the delay  in applying.  The bill sets out                                                               
fairly  complicated testing  procedures for  when post-conviction                                                               
DNA testing is ordered; does  not prohibit the prosecutor and the                                                               
defendant from  agreeing to  conduct post-conviction  DNA testing                                                               
without   the  defendant   filing  an   application;  and   makes                                                               
corrective  changes  to [AS  44.41.035],  which  pertains to  the                                                               
Department of Public Safety's (DPS's) DNA database.                                                                             
REPRESENTATIVE   HOLMES   noted   that   although   proposed   AS                                                               
12.73.040(1) says  that a timely application  for post-conviction                                                               
DNA testing  is one that  is filed  before three years  after the                                                               
date  of conviction,  proposed  AS  12.36.200(a)(1)(A) says  that                                                               
agencies shall  preserve evidence for  18 months after  the entry                                                               
of a judgment of conviction.                                                                                                    
MS.  CARPENETI indicated  that agencies  shall preserve  evidence                                                               
for at least the later of  the various periods of times listed in                                                               
the bill,  and that  those periods of  time listed  are minimums,                                                               
not maximums.   She  reiterated that  under the  bill, biological                                                               
evidence  shall   be  retained  until  the   defendant  has  been                                                               
unconditionally released  from probation  and/or parole.   Again,                                                               
the  timeliness  provision  was   taken  from  federal  law,  and                                                               
establishes a presumption, rather  than a statute of limitations,                                                               
and provides  that the presumption  may be rebutted for  any good                                                               
cause  if  the   filing  occurred  three  or   more  years  after                                                               
conviction.   She  characterized  the  [timeliness] provision  as                                                               
pretty liberal.                                                                                                                 
2:35:45 PM                                                                                                                    
REBECCA BROWN,  Policy Advocate, Innocence Project,  relayed that                                                               
nationally, 250 individuals have  been exonerated by DNA testing,                                                               
with the latest exoneration taking  place just last week.  Nearly                                                               
all of the  exonerations were made possible by the  presence of a                                                               
state-level post-conviction DNA  testing law.  Many,  if not most                                                               
of the exonerated had to  languish in prison, waiting until their                                                               
state  passed a  post-conviction DNA  testing law,  thus enabling                                                               
them to  prove they were innocent.   Many innocent men  and women                                                               
across the country  are still incarcerated, subject  to the daily                                                               
torture  of  prison  life.    This  seems  incomprehensible,  she                                                               
remarked, given that 47 states  have passed DNA testing laws, but                                                               
[her organization]  has come to  learn that many of  the innocent                                                               
are barred from seeking testing  because the laws in their states                                                               
are structured  in a way  that denies  the very testing  that was                                                               
initially  sought via  the passage  of those  laws.   The current                                                               
situation demonstrates  the fallibility  of human  judgment; over                                                               
and over, people, some who  even seemed guilty when the Innocence                                                               
Project reviewed their petitions  [for assistance], turned out to                                                               
be innocent, and vice versa, and this  is due to the fact that in                                                               
any system created by humans, errors are made.                                                                                  
MS. BROWN  stated that the  Innocence Project's agenda is  a pro-                                                               
law  enforcement  agenda that  seeks  reforms  which protect  the                                                               
innocent and  identify the guilty.   In  more than 40  percent of                                                               
the  Innocence Project's  cases, forensic  testing that  excluded                                                               
its  clients   led  to  the   eventual  detection  of   the  true                                                               
perpetrators  of  the heinous  crimes  the  innocent people  were                                                               
convicted for.   A robust DNA testing law that  ensures access to                                                               
all deserving  applicants, therefore,  will help Alaska  not only                                                               
exculpate  and free  the innocent  but  also identify  criminals.                                                               
She  then indicated  that the  Innocence Project  is troubled  by                                                               
some of  the provisions of HB  316.  For example,  the bill would                                                               
require  individuals  seeking  testing  under  the  existing  but                                                               
insufficient  post-conviction  relief   process  to  forego  that                                                               
process in  favor of a  DNA testing framework that  denies nearly                                                               
every, if not all, deserving applicants.                                                                                        
MS.  BROWN relayed  that the  Innocence Project  thinks that  the                                                               
most restrictive provision of the  bill is that which pertains to                                                               
timeliness; it  would effectively establish a  three-year statute                                                               
of  limitations from  the time  of conviction  on filing  a post-                                                               
conviction  claim  of  innocence,  and yet  nearly  every  single                                                               
individual who  was able to  prove innocence through  DNA testing                                                               
had already  exhausted every  available state  remedy as  well as                                                               
federal  habeas corpus  relief before  he/she sought  testing, as                                                               
had nearly  all of  the Innocence Project's  clients.   Under the                                                               
bill as currently  written, none of these  individuals would have                                                               
been eligible for post-conviction  DNA testing, and neither would                                                               
nearly every  exonerated person in  the country.  There  are many                                                               
reasons  why a  person  would  not file  a  DNA test  application                                                               
within three  years of conviction,  including, for  example, poor                                                               
legal  advice, illiteracy,  a belief  that the  evidence was  not                                                               
collected  or  that it  was  not  preserved,  a mistrust  of  the                                                               
criminal  justice  system,  or  a lack  of  knowledge  about  the                                                               
ability to  perform testing.   Again,  as currently  written, the                                                               
timeliness  requirement  would  have  barred almost  all  of  the                                                               
individuals  around the  country who've  proven their  innocence,                                                               
and  there is  not one  law in  the nation  that includes  such a                                                               
restrictive timeliness provision.  Indeed,  35 of the 47 existing                                                               
statutes have no time limitation whatsoever.                                                                                    
2:40:01 PM                                                                                                                    
MICHAEL  J. WALLERI,  General Counsel,  Tanana Chiefs  Conference                                                               
(TCC), said  that currently, the  TCC is  opposed to [HB  316] in                                                               
its existing  form based  on a  number of issues.   One  issue is                                                               
that under  the TCC's interpretation  of the Osborne  case, there                                                             
is no constitutional right to prove  innocence and it's up to the                                                               
states to  develop their own  standards.  The  science pertaining                                                               
to DNA is  very accurate, and DNA testing  can establish identity                                                               
beyond a reasonable doubt.  Mr. Walleri went on to say:                                                                         
     We see  the tension  here a little  differently between                                                                    
     two  interests:   one  is  ...  the interest  that  the                                                                    
     innocent  should not  be punished,  as  opposed to  the                                                                    
     administrative expense  and inconvenience  of retaining                                                                    
     evidence  - biological  evidence -  and having  to deal                                                                    
     with  redundant or  frivolous testing  requests. ...  I                                                                    
     think the  committee is quite  well aware that  ... the                                                                    
     Native people  of Alaska are  highly disproportionately                                                                    
     represented  in the  incarcerated  population. ...  The                                                                    
     balance for  the Native  community really  tips heavily                                                                    
     in favor  of protecting  the ... [innocent]  because of                                                                    
     the concern over ... the  proportionality and what many                                                                    
     [people]  believe to  be a  ... disparate  treatment of                                                                    
     Native American  people in the Alaska  criminal justice                                                                    
     system - which has been documented over and over.                                                                          
     [In] ... that  regard, it's our position  that a person                                                                    
     should  have  a  right to  prove  [his/her]  innocence,                                                                    
     somewhat  at  odds  with the  recent  decision  of  the                                                                    
     [U.S.]  Supreme Court,  ...  and  consistent with  that                                                                    
     view is  that the procedural barriers  in state statute                                                                    
     should not  limit the  right of  people to  prove their                                                                    
     innocence.    We believe  that  this  bill, in  several                                                                    
     instances,  actually does  that; it  creates procedural                                                                    
     barriers that would prevent  truly innocent people from                                                                    
     coming forward to ... [show] that.                                                                                         
MR. WALLERI  relayed that another  of the TCC's  concern pertains                                                               
to  the  destruction  of   evidence,  with  particularly  serious                                                               
concern  over the  language  of proposed  AS  12.36.200(e).   The                                                               
TCC's  view is  that  this  provision is  backwards,  that if  an                                                               
agency  is going  to destroy  biological  evidence, that  instead                                                               
there should  really be  a court procedure  involved so  that the                                                               
court can  ensure protections for  the innocent.  Another  of the                                                               
TCC's major  concerns pertains  to the  provision related  to the                                                               
findings [outlined  in proposed AS 12.73.020]  required for post-                                                               
conviction DNA  testing orders.   A number of those  findings, he                                                               
opined, are really barriers  to obtaining post-conviction relief,                                                               
and the TCC  disagrees with the DOL's  characterization of [these                                                               
MR. WALLERI mentioned  that within the Native  community, the TCC                                                               
is  constantly  hearing  concerns  regarding  ineffectiveness  of                                                               
counsel, and although most times  people's lawyers do a good job,                                                               
there  are cases  wherein things  just slip  through the  cracks.                                                               
There  is also  the whole  issue of  whether a  person's attorney                                                               
decides to  take a "Cooksey  appeal" [Cooksey v. State,  524 P.2d                                                           
1251, 1255-57 (Alaska 1974)]; under  the bill, anyone who does so                                                               
would  be precluded  from  seeking  post-conviction relief  based                                                               
upon  innocence.   In addition,  there are  issues regarding  the                                                               
standard  that  [there be  a  reasonable  probability that  post-                                                               
conviction  DNA   testing]  will   show  conclusively   that  the                                                               
applicant  is  innocent,  compared   to  just  establishing  that                                                               
reasonable doubt exists.                                                                                                        
MR.  WALLERI  indicated  that  the  TCC  has  concerns  regarding                                                               
[proposed  AS  12.73.020   as  it  pertains  to]   the  issue  of                                                               
effectiveness of  counsel, and  about [proposed  AS 12.73.020(6)]                                                               
in that it  requires that the evidence must have  been subject to                                                               
a chain  of custody such  that it could be  relied upon.   On the                                                               
latter point, he opined that if  an error in the chain of custody                                                               
occurred - even though the  evidence would have been fully within                                                               
the  government's control  - the  burden of  that error  would be                                                               
placed  on the  applicant  and could  be used  as  the basis  for                                                               
denying  post-conviction relief.    He said  that  the TCC  would                                                               
agree with the earlier comments  regarding timeliness, in that if                                                               
an  incarcerated  person  is  innocent  and  can  prove  it,  [an                                                               
application  filed three  years or  more from  conviction] should                                                               
not be deemed untimely as a matter of legal presumption.                                                                        
MR.  WALLERI   urged  the  committee   to  give   the  provisions                                                               
establishing a task force to  address the specifics of preserving                                                               
evidence  more  consideration   because  currently  the  proposed                                                               
membership doesn't  include a member  of the defense bar.   "This                                                               
is  a  highly biased  task  force  designed  to advance  the  ...                                                               
interest of  prosecution, and that  is greatly disturbing  to us,                                                               
and  we'd   like  to   see  a  little   bit  more   balanced  ...                                                               
representation within that task force," he added in conclusion.                                                                 
CHAIR  RAMRAS ventured  that the  bill  is just  a beginning  and                                                               
warrants  amending so  that it  doesn't overwhelm  existing State                                                               
REPRESENTATIVE  GRUENBERG  asked Mr.  Walleri  and  Ms. Brown  to                                                               
provide  their  testimony  and   any  suggested  changes  to  the                                                               
committee in writing.                                                                                                           
2:48:41 PM                                                                                                                    
WILLIAM B. OBERLY, Executive  Director, Alaska Innocence Project,                                                               
said  that legislation  pertaining to  evidence preservation  and                                                               
post-conviction  DNA  testing is  very  important  to the  Alaska                                                               
Innocence  Project.   Evidence  preservation and  post-conviction                                                               
DNA  testing allow  his organization  to carry  out its  mission.                                                               
However,  a bill  that restricts  post-conviction DNA  testing or                                                               
gives only  illusory access  condemns the  innocent to  no relief                                                               
and makes justice  in Alaska illusory.  Although there  is a need                                                               
for post-conviction DNA testing  in Alaska, as currently written,                                                               
HB 316 does not provide  reasonable access to post-conviction DNA                                                               
testing.   If passed,  it would instead  be the  most restrictive                                                               
DNA  testing  law  in  the country,  and  more  restrictive  than                                                               
Alaska's current process.  In  other words, as currently written,                                                               
an  individual attempting  to prove  his/her  innocence would  be                                                               
better of without HB 316 becoming law.                                                                                          
MR.  OBERLY  offered  his  belief   that  proposed  AS  12.73.040                                                               
institutes a  three-year time limitation,  and said  he disagrees                                                               
with the  DOL's assertion that  an application could  be accepted                                                               
for  any  good  cause,  because   the  language  of  proposed  AS                                                               
12.73.040(2)(B) instead uses the term,  "other good cause".  That                                                               
is  a significant  linguistic difference,  he opined,  because if                                                               
the court  were to interpret  proposed AS 12.73.040(2),  it would                                                               
first look to proposed AS  12.73.040(2)(A) - which indicates that                                                               
an [untimely] application could be  accepted if the applicant was                                                               
incompetent  and that  incompetence substantially  contributed to                                                               
the delay.  Applicant incompetence  and its resulting substantial                                                               
contribution to a  delay is a serious  situation, and, therefore,                                                               
any  other good  cause  would  have to  be  just  as serious,  he                                                               
predicted.    If  the  State  means for  any  good  cause  to  be                                                               
sufficient for rebuttal of the  presumption of untimeliness, then                                                               
that language  needs amending, because  otherwise it would  bar a                                                               
number of people from bringing an [application].                                                                                
MR.  OBERLY  ventured  it  is likely  that  there  are  currently                                                               
innocent  men and  women in  prison in  Alaska, with  their cases                                                               
"undiscovered and  undeveloped."   "This" is  a long  process, he                                                               
remarked;  for  example,  the first  case  the  Alaska  Innocence                                                               
Project filed for testing -  which is currently still working its                                                               
way  through  the  courts  -  was  filed  nine  years  after  the                                                               
[defendant's]  last  court hearing.    He  said he  just  doesn't                                                               
understand  a deadline  on  innocence being  put  into the  bill,                                                               
particularly  given that  35 of  the 47  states that  have passed                                                               
similar  legislation  don't  have  a  time  limitation.    If  an                                                               
innocence claim  meets the standard  and evidence can  be located                                                               
to be  tested, what  does Alaska gain  by putting  arbitrary time                                                               
limits on such actions?                                                                                                         
MR.  OBERLY referred  to proposed  AS 12.73.020(5),  and said  he                                                               
finds  the   restriction  on  post-conviction  DNA   testing  for                                                               
evidence  that   wasn't  tested   at  the   trial  level   to  be                                                               
particularly troubling, because  it makes a person  pay the price                                                               
for a  bad decision  on the part  of his/her lawyer  or due  to a                                                               
lack  of  funds for  testing,  and  because  it also  allows  the                                                               
prosecution, the  holder of the  evidence, to choose not  to test                                                               
the  evidence at  the time  of the  trial and  then later  deny a                                                               
request for post-conviction DNA testing.   If a criminal trial is                                                               
truly a search for the truth  and evidence that might contain DNA                                                               
exists,  then  failure to  test  is  as  much  the fault  of  the                                                               
prosecution as of the defense,  perhaps more so since, again, the                                                               
prosecution holds the evidence.                                                                                                 
2:53:55 PM                                                                                                                    
MR.  OBERLY also  indicated concern  regarding the  provisions of                                                               
the  bill that  preclude post-conviction  DNA testing  for anyone                                                               
who has  admitted or  conceded guilt  in an  official proceeding,                                                               
and  suggested   that  those  provisions  should   be  clarified,                                                               
particularly  given  that  those  who [falsely]  admit  guilt  in                                                               
official proceedings are overrepresented  by the vulnerable:  the                                                               
young, the disabled - the  very individuals the government should                                                               
protect.  Of  particular concern to the  Alaska Innocence Project                                                               
is   the  real   and   significant   impact  the   aforementioned                                                               
restrictions are  going to have  on Native Alaskans'  just claims                                                               
of  innocence.   There  are  likely  to  be  a number  of  Native                                                               
Alaskans  who are  innocent of  the charges  for which  they were                                                               
convicted  who  have  not  yet been  identified,  and  given  the                                                               
relationship of  Native Alaskans to the  criminal justice system,                                                               
a high percentage of such  cases will involve pleas or admissions                                                               
of  guilt,   and  due  to   financial  restrictions   and  remote                                                               
representation in  the Bush, such criminal  defendants are likely                                                               
to not  have had DNA  testing.  He  said he doesn't  believe that                                                               
the provisions  of HB  316 are  race neutral,  and, as  a result,                                                               
will  therefore have  a much  greater negative  impact on  Native                                                               
MR.  OBERLY   observed  that  HB   316  also   contains  indirect                                                               
restrictions such as  the one requiring the applicant  to pay for                                                               
the retrieval of evidence, found  in proposed AS 12.36.200(d) and                                                               
proposed AS  12.73.050(c), and likened  this requirement  to that                                                               
of requiring  a rape  victim to pay  for her own  rape exam.   He                                                               
surmised  that   this  requirement   would  bar   many  potential                                                               
applicants.    There  is  also a  requirement  [via  proposed  AS                                                               
12.73.020(10)]  that  a  court  guess at  the  outcome  of  post-                                                               
conviction DNA  testing before it  orders that testing;  no other                                                               
[post-conviction  DNA  testing] law  in  the  nation has  such  a                                                               
requirement, which he characterized as perplexing.                                                                              
MR.   OBERLY  referred   to  the   provisions  establishing   the                                                               
aforementioned  task  force, and  opined  that  they should  also                                                               
include  guidelines  regarding  the retention  of  evidence,  and                                                               
stipulate  that the  membership  shall include  a  member of  the                                                               
defense  bar  and a  member  of  what  he called  the  "innocence                                                               
community."   He offered his  belief that the DOL's  approach via                                                               
HB 316  is to restrict  the number  of cases wherein  a defendant                                                               
can seek post-conviction  DNA testing.  This is  in contrast with                                                               
the  Alaska   Innocence  Project's  approach  of   seeking  those                                                               
Alaskans who've  been wrongfully  convicted and  then, hopefully,                                                               
identifying the real perpetrators of  the crimes.  This, however,                                                               
requires  a  statute  without significant  restrictions  such  as                                                               
those included in  HB 316, he opined.  In  conclusion, he offered                                                               
his belief  that HB 316  can still be salvaged  as long as  it is                                                               
amended  to  truly allow  innocent  individuals  access to  post-                                                               
conviction DNA testing that may prove their case.                                                                               
REPRESENTATIVE LYNN,  in response to  a comment, argued  that his                                                               
goal is  to get the  guilty in jail, noting  that if there  is an                                                               
innocent person  in jail, then that  means that there is  still a                                                               
guilty person  running around free.   "We want to do  whatever we                                                               
can to  get the guilty  folks in jail,  and, as a  corollary, get                                                               
the innocent folks  out of jail - that's the  direction [that] we                                                               
ought to be going; to me, it's  ... a public safety issue as well                                                               
as an issue of justice for  the person who's wrongfully in jail,"                                                               
he concluded.                                                                                                                   
3:00:42 PM                                                                                                                    
JEFFREY A. MITTMAN, Executive  Director, American Civil Liberties                                                               
Union of  Alaska (ACLU of Alaska),  said that the ACLU  of Alaska                                                               
would  be  providing  written testimony,  and  concurs  with  the                                                               
remarks  of Mr.  Oberly and  Mr. Walleri  and their  analyses [of                                                               
HB 316].                                                                                                                        
[HB 316 was held over.]                                                                                                         

Document Name Date/Time Subjects
01 HB316 HJUD Hearing Request.pdf HJUD 2/10/2010 1:00:00 PM
HB 316
02 HB316 Sectional v. A.pdf HJUD 2/10/2010 1:00:00 PM
HB 316
03 HB316 Bill v. A.pdf HJUD 2/10/2010 1:00:00 PM
HB 316
04 HB316-LAW-CRIM-01-28-10.pdf HJUD 2/10/2010 1:00:00 PM
HB 316
05 HB316-DOA-OPA-02-01-10.pdf HJUD 2/10/2010 1:00:00 PM
HB 316
06 HB316-DOA-PDA-02-01-10.pdf HJUD 2/10/2010 1:00:00 PM
HB 316
07 HB316 Innocence Project Analysis.pdf HJUD 2/10/2010 1:00:00 PM
HB 316
08 Alaska Innocents Project COMMITTEELETTER (2).pdf HJUD 2/10/2010 1:00:00 PM
10 DNA Word Matrix revised6.pdf HJUD 2/10/2010 1:00:00 PM
01 HB319 Sponsor Statement.pdf HJUD 2/10/2010 1:00:00 PM
HB 319
02 HB319 Bill v A.pdf HJUD 2/10/2010 1:00:00 PM
HB 319
03 HB319 Sectional.pdf HJUD 2/10/2010 1:00:00 PM
HB 319
04 HB319-LAW-CRIM-02-04-10.pdf HJUD 2/10/2010 1:00:00 PM
HB 319
05 HB319 Background.pdf HJUD 2/10/2010 1:00:00 PM
HB 319