Legislature(2009 - 2010)BELTZ 211
04/06/2009 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB148 | |
| SB85 | |
| SB110 | |
| SB176 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 148 | ||
| += | SB 85 | TELECONFERENCED | |
| += | SB 110 | TELECONFERENCED | |
| *+ | SB 176 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 110-PRESERVATION OF EVIDENCE
2:18:22 PM
CHAIR FRENCH announced the consideration of SB 110 and asked for
a motion to adopt work draft committee substitute (CS) \E as the
working document.
SENATOR THERRIAULT moved to adopt work draft CS for SB 110,
labeled 26-LS0560\E. There being no objection version E was
before the committee.
CHAIR FRENCH said Ms. Smith will go through the changes and then
Ms. Carpeneti will discuss some amendments proposed by the
Department of Law.
CINDY SMITH, Staff to Senator French, stated that the CS
includes the following changes:
• Throughout the bill anytime a defendant is referred to an
adjudicated juvenile is referred to as well.
• Page 2, lines 11 and 12, subsection (b), adds clarifying
language that an agency shall follow written policies in
making decisions on what evidence it would or would not
retain.
• Page 3, line 1, the conjunction "and" is inserted before
paragraph (3) to correct the grammar.
• Page 3, lines 19, and 20, subsection (h), adds provisions
providing immunity from civil liability. DOL will likely
suggest substitute language, Ms. Smith said.
• Page 4, at the request of the court the ex officio task
force position from the Alaska Supreme Court is eliminated.
2:21:01 PM
CHAIR FRENCH highlighted the letter from the Alaska Peace
Officers Association opposing the bill and the letter from the
Alaska Women's Lobby supporting SB 110. These letters have come
in since the last hearing.
CHAIR FRENCH asked Ms. Carpeneti to explain the amendments DOL
is proposing.
ANNE CARPENETI, Attorney, Civil Division, Department of Law
(DOL), expressed appreciation for the cooperation from the
sponsor and his staff in working on SB 110.
CHAIR FRENCH returned he sees DOL as a partner because this
won't work without cooperation.
SENATOR MCGUIRE moved Amendment 1.
CHAIR FRENCH objected for discussion purposes.
AMENDMENT 1
OFFERED IN THE SENATE
TO: SB 110
Page 4, following line 3:
Insert new bill sections to read:
* Sec. 2. AS 44.41.035(g) is amended to read:
(g) A person from whom a sample has been
collected under this section
(1) may inspect and obtain a copy of the
identification data regarding the person
contained within the DNA identification
registration system; and
(2) may request the Department of Public
Safety to destroy the material in the system
regarding the person under the provisions
described in (i) of this section.
* Sec. 3. AS 44.41.035(i) is amended to read:
(i) The Department of Public Safety shall [, UPON
RECEIPT OF A COURT ORDER,] destroy the material in the
system relating to a person or minor upon the written
request of the person or minor, if the request is
accompanied by a certified copy of a court order
indicating that [The COURT SHALL ISSUE THE ORDER IF]
the person's or minor's DNA was included in the system
under
(1)(b)(1) or (2) of this section, and the court
order establishes [DETERMINES] that
(A) the conviction or adjudication that
subjected the person to having a sample taken
under this section was [IS] reversed; and
(B) the person
(i) was [IS] not retried,
readjudicated, or convicted or adjudicated
for another crime that requires having a
sample taken under this section; or
(ii) after retrial, was [IS] acquitted
of the crime or after readjudication for the
crime, was [IS] not found to be a
delinquent, and was [IS] not convicted or
adjudicated for another crime that requires
a sample under this section;
(2)(b)(6) of this section, and the court order
establishes [DETERMINES] that
(A) the person arrested was released without
being charged; [OR]
(B) the criminal complaint, indictment,
presentment, or information for the offense for
which the person was arrested was dismissed, and
a criminal complaint, indictment, presentment, or
information for an offense requiring submission
of a DNA sample was [IS] not refiled; or
(C) the person was found by the trier of
fact to be not guilty of the offense for which
the person was arrested and was not convicted of
another offense requiring submission of a DNA
sample under (b)(1) or (2) of this section.
* Sec. 4. AS 44.41.035 is amended by adding a new
subsection to read:
(r) A DNA sample collected or placed in the DNA
identification registration system, that was taken or
retained in good faith, may be used as provided by law
in a criminal investigation. Evidence obtained from a
match from a data collection system may be used in a
criminal prosecution if the DNA sample was taken or
retained in good faith, even if the DNA sample is
later removed from the DNA identification registration
system.
Renumber the following bill sections accordingly.
MS. CARPENETI explained that when the legislature changed the
law regarding DNA collection, it provided a method for a person
charged or convicted of a crime to get their DNA out of the
databank if the charge or conviction is overturned. What it did
not include is a procedure for a person to get their DNA out of
the databank if they are later acquitted of the offense for
which they were arrested and charged. The FBI requires that
procedure under CODIS (Combined DNA Index System), which is the
national repository for DNA profiles. Accordingly, this
amendment provides the procedure for a person who is acquitted
to ask for their DNA to be removed from the databank.
The amendment also contains a good-faith provision which
provides that DNA that has not been removed from the databank
can be used if there is a valid hit on it.
CHAIR FRENCH observed that "It's not a get-out-of-jail-free card
on a hit that is validly derived while the information is in the
databank."
2:25:07 PM
CHAIR FRENCH, responding to a question, clarified that Ms.
Carpeneti is explaining subsection (r) on the third page of
Amendment 1. He asked if this adds to the language covering the
individuals who can get their DNA removed from the databank.
MS. CARPENETI replied this is in addition to the statute
addressing the DNA databank. This suggestion came from the crime
lab and CODIS has made a similar suggestion.
2:26:40 PM
MICHELLE COLLINS, DNA Unit Supervisor, Statewide Crime
Laboratory, Department of Public Safety, said she is the state
representative to the FBI on matters of CODIS and the DNA
database. She described the amendment as essential. When the DNA
law was changed there was some talk about getting an AG opinion
to address removal of DNA from the database when there is an
acquittal, but that did not happen. When the lab began putting
arrestee DNA samples in the national database, the FBI said it
would be a violation of federal law to proceed without an
established procedure for handling arrestees who are acquitted.
In order to submit samples to CODIS, the lab revised its
procedures until it could seek an amendment to address that
issue.
The laboratory hasn't needed to use the good-faith clause but it
could important, Ms. Collins said. It addresses circumstances
where there is a hit to a sample that should not be, but is, in
the database. For example, if DNA evidence from a serial rapist
produces a hit and matches the sample from a person who should
not be in the database, the good-faith clause allows the lab to
proceed.
2:30:02 PM
CHAIR FRENCH removed his objection and seeing no further
objection, announced that Amendment 1 is adopted.
SENATOR MCGUIRE moved Amendment 2.
CHAIR FRENCH objected for discussion purposes.
AMENDMENT 2
[Original punctuation provided.]
OFFERED IN THE SENATE
TO: CSSB 110 LS0560\E
On page 3 at line 19, delete the language in (h) and
replace with
A person may not bring a civil action for damages
against the state or political subdivision of the
state, their officers, agents, or employees, or a law
enforcement agency, its officers, or employees for any
failure to comply with the provisions of this section.
MS. CARPENETI explained that the amendment addresses civil
liability for police departments throughout the state that may
not comply with the law with respect to retention of evidence.
Police departments will do their best to comply with the law,
but it would be very hard on a small village police department
to suffer civil liability for a mistake they made. This language
was suggested because it is already in current law for putting
in and taking out of the database domestic violence restraining
orders. It's a bit broader than the language that's in the bill.
2:32:12 PM
SENATOR THERRIAULT asked how it squares with subsection (g) that
says the court may order remedies if it finds that evidence was
destroyed.
MS. CARPENETI replied they address different things. Subsection
(g) represents what happens in a criminal prosecution or post
conviction relief that is pursued by an individual if evidence
is lost. Subsection (h) addresses civil liability money
damages to the police department if they make a mistake. This is
a new requirement for police departments to abide by and DOL
doesn't think they should be held for money damages if a mistake
is made.
CHAIR FRENCH observed that the criminal defendant may enjoy some
benefit from an intentional destruction of evidence in their
case, but that criminal defendant can't sue the police officer
for money because of the event.
2:34:17 PM
MS. CARPENETI said yes and depending on the situation, the court
could dismiss the subsequent prosecution, but this amendment
addresses money damages for violation of the Act by the police
officer or his or her employer.
CHAIR FRENCH asked if it would possibly include the lawyers as
well.
MS. CARPENETI answered yes.
2:35:08 PM
CHAIR FRENCH noted that Ms. Carpeneti said there are similar
provisions in other places of the law; this is a blanket bar
even for intentional acts.
MS. CARPENETI said yes; AS 18.66 is the limitation of liability
for police with respect to putting domestic violence restraining
orders in and out of the DV registry. Responding to a question,
she said the Department of Law supports the amendment.
CHAIR FRENCH withdrew his objection and seeing no further
objection, announced that Amendment 2 is adopted.
2:35:53 PM
SENATOR MCGUIRE moved Amendment 3.
CHAIR FRENCH objected for discussion purposes.
AMENDMENT 3
[Original punctuation provided.]
OFFERED IN THE SENATE
TO: CSSB 110 LS0560\E
At page 4, line 18, insert:
(8) a representative of the State Crime Lab.
MS. CARPENETI related that the bill adopts a task force to
address evidence retention issues and the State Crime Lab
suggested they might make helpful contributions to the task
force. They do hold the evidence.
CHAIR FRENCH asked Mr. Dym if he supports Amendment 3.
ORIN DYM, Forensic Laboratory Manager, Statewide Crime Lab,
Department of Public Safety, said he does support it.
CHAIR FRENCH removed his objection and seeing no further
objection, announced that Amendment 3 is adopted.
2:37:17 PM
JEFFERY MITTMAN, Executive Director, ACLU of Alaska, said the
ACLU generally supports SB 110 but has some concerns with
Amendment 2 relating to the database and good-faith exception.
The ACLU would prefer an automatic exclusion of evidence for
someone who has been acquitted and would like the good-faith
provision limited. "But generally we appreciate the work of the
committee in addressing this important issue, he stated.
BILL OBERLY, Alaska Innocence Project, said his only problem
with the amendments to SB 110 relate to Amendment 2 to the
extent that it deals with intentional conduct. I don't think
that's appropriately a part of that and would counsel the
committee to use caution in allowing intentional conduct to go
forward, he said.
MR. OBERLY suggested that if the bill doesn't get signed this
year the committee might want to breakout the section on the
task force and pass it now and allow that task force time to
develop suggestions before the Senate deals with the bill next
session. That would be the best use of everyone's time, he said.
2:39:57 PM
CHAIR FRENCH said it unlikely that the bill will be signed
into law this year, but the effect of that suggestion would be
to jettison all portions of the bill except the task force and
let it move forward on its own. Perhaps we should talk further
about that before coming to a final decision, he said.
With respect to the point on Amendment 2, Senator French said he
shares some of that concern. An intentional act to destroy
evidence is something the committee should be very cautious
about indemnifying anyone for. He said he can appreciate Ms.
Carpeneti's perspective on the domestic violence writs, but
what's playing out now on a large scale is the withholding of
evidence and the horrible implications that can have on a trial.
CHAIR FRENCH directed attention to Amendment 2 and asked Ms.
Carpeneti if inserting the word "intentional" before "failure to
comply" would preserve all immunity for negligent or knowing
failures.
MS. CARPENETI said she believes so.
SENATOR THERRIAULT questioned whether unintentional" isn't the
word he's looking for. This section protects the employees and
the idea is to protect them from an unintentional act.
CHAIR FRENCH said he doesn't want employees to be sued if they
forget to save the evidence or even if they think about it and
then don't remember to do it.
SENATOR THERRIAULT returned that's unintentional.
MS. CARPENETI said she agrees it would achieve the purpose. The
way the amendment reads is that a person may not bring an action
for unintentional failure to comply.
2:43:08 PM
CHAIR FRENCH moved Amendment 4.
AMENDMENT 4
Insert: "unintentional" before the phrase "failure to
comply" in the third line of the previously adopted
Amendment 2.
Finding no objection he announced that Amendment 4 is adopted.
SENATOR MCGUIRE directed attention to Amendment 2 and asked if
it makes a material difference and if the phrase "with
provisions of this section" refers to the entire bill.
MS. CARPENETI said she believes that's correct.
SENATOR MCGUIRE mused that there's no material difference other
than adding the specific reference to officers, agents, or
employees.
MS. CARPENETI offered that with the adoption of Amendment 2 more
parties are covered and DOL sees that as an important
difference.
2:45:07 PM
SENATOR THERRIAULT referenced paragraph (2) in Section 1 of the
bill and asked if the family of a prisoner who died while in
prison could make a motion to have the deceased prisoner's DNA
sample removed from the database.
MS. CARPENETI replied that is not her understanding. "While the
person remains a prisoner in the custody of the Department of
Corrections" is language that came from Legislative Legal. It
means that the person is in jail but it does not mean that the
family of a person could make a motion to have the person's DNA
removed from the database. "I think any right dies with the
prisoner."
2:46:36 PM
SENATOR THERRIAULT mentioned an article he read about a family
that cleared a man who had died in prison and commented that it
doesn't seem as though that set of circumstances would be a
remedy for the family.
CHAIR FRENCH offered that it would no longer be an obligation of
the state to preserve evidence so that the family would have
access to it. "At some point the effort ends."
MS. CARPENETI said that is correct. At a certain point police
departments have to clear evidence from their inventory.
"Keeping evidence after the defendant has died seems unnecessary
to us."
SENATOR THERRIAULT questioned whether police departments could
get rid of evidence under the language in the bill.
CHAIR FRENCH returned that as long as the person is no longer a
prisoner a police department could get rid of the evidence.
MS. CARPENETI stated agreement.
SENATOR THERRIAULT noted the references to the crimes that this
law would apply to and asked if there was a particular reason
that sex trafficking and child kidnapping aren't included.
MS. CARPENETI explained that the idea was to start with the most
serious offenses that would typically have DNA evidence that
would be relevant. While sexual abuse and sexual assault
typically do have DNA evidence, sex trafficking isn't the type
of case where DNA would typically be relevant.
2:48:45 PM
CHAIR FRENCH said his sense was that this bill would be
difficult to get through the process because it's a major change
in the way evidence is handled in this state. Focusing on
homicide, rape in the first degree, and sexual assault of a
minor in the first degree is a measurable change. If the bill
gains momentum and people want to add other crimes we can
discuss that, he said.
MS. CARPENETI added that the bill does provide that these
obligations for police departments apply if a person is indicted
for sexual assault in the first degree or sexual abuse in the
first degree and is subsequently convicted of lesser included
offenses.
2:49:47 PM
CHAIR FRENCH solicited a motion to move the bill.
SENATOR MCGUIRE moved to report CS for SB 110, as amended today,
from committee with individual recommendations and attached
fiscal note(s). There being no objection, CSSB 110(JUD) moved
from the Senate Judiciary Standing Committee.
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