Legislature(1997 - 1998)

01/28/1998 02:00 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
              SB 219 - OFFICE OF VICTIMS' ADVOCACY                             
SENATOR HALFORD presented an amendment which he said deletes the               
subpoena of a judge or jury. He said it does not mean a person                 
cannot ask a question of a judge or juror, only that they have no              
authority to enforce the question be answered. He said this                    
addresses one concern raised and remembered SENATOR ELLIS had                  
another concern. He did not object to accommodating his request but            
wasn't sure an amendment had been drafted.                                     
SENATOR ELLIS said he believed there was an amendment.                         
CHAIRMAN TAYLOR requested that before moving on to the second                  
amendment he would like to take testimony on SENATOR HALFORD's                 
SENATOR MILLER moved amendment one and without objection, the                  
amendment was adopted.                                                         
SENATOR ELLIS apologized his amendment had not been copied earlier.            
He agreed with SENATOR HALFORD that the misdemeanors covered in his            
amendment should be prioritized under felony crimes and dealt with             
by the advocate as resources permit. He offered it to the committee            
for consideration.                                                             
SENATOR HALFORD said he had not seen it until this time but it does            
meet the requirements he had expressed to his staff. He sees it as             
a positive change that does not substantially dilute the bill's                
SENATOR ELLIS committed himself to go no further with this or any              
other amendments.                                                              
SENATOR HALFORD researched the question of who is defined as the               
victim and found the current laws inadequate. He sees this bill as             
a big step in the right direction in relation to all victims'                  
rights. He stated that the prosecutor can decide who is a victim               
and advocate for and notify this person or persons. He explained               
this is a new area of law that will need some fleshing out to                  
elevate victims' rights to the proper level.                                   
CHAIRMAN TAYLOR expressed concern that, in only specifying domestic            
violence misdemeanors, other serious violent misdemeanors like                 
assault may be overlooked.                                                     
SENATOR ELLIS replied it was not his intention to omit these crimes            
but he was not positive they were covered.                                     
CHAIRMAN TAYLOR restated his concern that some very serious                    
felonious misdemeanors might not be included if this amendment only            
covers domestic violence misdemeanors.                                         
SENATOR HALFORD explained thatthe amendment covers a felony or a               
class A misdemeanor if the class A misdemeanor was a crime                     
involving domestic violence or a crime against a person. This                  
covers first, second, third, and fourth degree assault, reckless               
endangerment and stalking in the second degree. He assumed it did              
cover most violent crimes. He said the amendment made this good                
thing bigger.                                                                  
CHAIRMAN TAYLOR was somewhat concerned with the fiscal note but                
noted it would be dealt with in Finance.                                       
SENATOR ELLIS moved the amendment and there being no objection, the            
amendment was adopted.                                                         
DEAN GUANELI, representing the Department of Law (DOL) apologized              
for not attending the last meeting and came forward to respond to              
some concerns he learned had been expressed. He stated that the DOL            
was one of the first jurisdictions in the country to create a                  
victims' assistance program in the late 1970's. Last year the                  
department held a district attorney and paralegal training                     
conference devoted to  the discussion of sexual assault crimes,                
including the effect on victims. They dealt with domestic violence             
in a previous conference and hope to focus on child victims this               
year. He said the department has strongly focused on victims                   
because it helps the prosecutor and is the right thing to do. He               
reviewed the concerns expressed at last week's hearing; going over             
the testimony regarding lack of notification and poor treatment of             
victims. He said it was not a surprise to hear. He may, however,               
have a different interpretation of the situation than the victims              
for several reasons. The first reason he cited was sheer numbers,              
saying the department may have to make 50,000 contacts a year just             
to get people to court. He said occasionally things fall through               
the cracks. He explained also that often they get very short notice            
from the court system and he doesn't expect the proposed office of             
victims' advocacy to help in this. He mentioned several handouts               
available for victims that educate them about their rights, and                
said some of these are being translated into Yupik for distribution            
statewide. He described how victims undergo trauma that can not be             
undone by the department no matter what. He said often other                   
circumstances in a victim's life can compound the pressure they are            
under. Sometimes all the combined trauma a victim  is dealing with             
leaves them unable to adequately understand and process information            
given to them. He cited this as another reason for giving victims              
brochures which allow them to use these materials when they are                
best able to process them. He thinks the victims' advocate would be            
helpful and the department would appreciate any help.                          
Number 240                                                                     
DEAN GUANELI gave detail about the Fairbanks triple murder case                
last week's witness gave testimony on. There were three victims in             
this case  designated for notification when, by law, the department            
only had to designate and inform one. He did not want to go in to              
detail but mentioned that there were other very serious things                 
going on in the lives of the victims that affected their ability to            
process and comprehend the information they were given.                        
Specifically, DEAN GUANELI believed some of the information this               
witness wanted was the police report which is by law confidential              
until the case is concluded. He said victims have no greater right             
to view confidential information than the public. He said she may              
have not been able to understand this at the time and might have               
even been given too much information, but he did review the actions            
in the case and he was satisfied they did the best job possible.               
DEAN GUANELI mentioned two ways in which the office of victims'                
advocacy could help; primarily by explaining the law to victims and            
helping them through their trauma and secondly, by protecting                  
victims against unfair defense attorney tactics.                               
DEAN GUANELI also mentioned ways in which the office could                     
potentially do harm in some cases. He said victims in many domestic            
violence cases later want to recant their testimony and current                
policy prohibits the department from allowing this. If the victims'            
advocate facilitated non-cooperation or recantation, it would be a             
problem. He said this may or may not happen depending on the type              
of client advocate relationship initially set-up. He suggested that            
if an advocate fully advised victims of their criminal and civil               
rights, including their possible right to civil compensation, this             
might open up other lines of questioning and possibly even make the            
victim out to look "money-grubbing." He concluded that depending on            
what was advised by the advocate, the victim could be inadvertently            
harmed by  well intentioned advice.                                            
DEAN GUANELI continued his testimony, giving examples of cases                 
where the department has been frustrated by the courts in their                
attempts to grant victims their rights as outlined under Alaska                
Statute 12.61.10b. This statute says every reasonable effort should            
be made to ensure victims of crimes are treated in accordance with             
their rights as set out in this section. In one case, a severely               
injured woman who had surgery and memory loss due to domestic                  
violence had to go through a battery of psychiatric tests. In                  
response to this, the legislature passed a law to keep this from               
happening. He also said sometimes the courts are not considerate of            
the victims' rights if they conflict with the court's schedule. He             
added that sometimes a problem like this can be resolved in the                
court of appeals but they do not always rule in favor of victims'              
rights. He gave other examples in which the court did not act in               
the best interests of the victims.                                             
Number 400                                                                     
DEAN GUANELI explained that his point was that if the committee                
wanted progress to be made, victims' rights should not be developed            
through case law at the appellate court level in Alaska. He                    
expressed a lack of confidence that case law would develop quickly             
or predictably. He suggested that if the intent was to develop                 
victims' rights, it should be done through statutory change. He                
suggested a comprehensive body of statutes and said Alaska has a               
good start. He urged them to pursue this course of action.                     
BARBARA BRINK, Public Defender for the State of Alaska, agreed with            
Mr. Guaneli regarding the unintended consequences of the bill. She             
said she had heard some questions regarding allocation of resources            
in the public defender's office and she was available to answer                
SENATOR HALFORD asked about a case in Anchorage where the                      
defendant's family hired an attorney and this attorney was                     
subsequently hired by the public defender's office to represent the            
man after he was declared indigent and the family hired yet another            
attorney for the man. He asked what defines indigent and does it               
apply to a person whose family can afford to hire an attorney.                 
BARBARA BRINK replied that this was a misunderstanding. She said               
this man did have private counsel before he turned himself in.                 
Later, when he no longer had counsel, a determination was made that            
he was indigent and a public defender was appointed. The family                
later contacted BARBARA BRINK to ask if some joint arrangement                 
could be worked out, allowing the private counsel to be hired and              
work alongside the public defender. She flatly said no, saying a               
person is either indigent and entitled to the services of a public             
defender or they are not. The family later rallied their resources             
and retained the private attorney, according to MS. BRINK. She said            
the public defender is not involved in that case.                              
SENATOR HALFORD thanked MS. BRINK for her good answer.                         
Number 490                                                                     
MR. BRANT MCGEE, Director of the Office of Public Advocacy                     
testified he was concerned that the public may confuse this office             
with his own. He said it is difficult for the average citizen to               
wade through the alphabet of state agencies already and a different            
name may make it easier for people to locate this office. He said              
it was  a small concern and he was not sure how much difficulty it             
would potentially cause but thought the name change was                        
CHAIRMAN TAYLOR agreed, saying he has seen this happen in relation             
to other agencies and asked SENATOR HALFORD if he had any problem              
removing the word advocate and inserting "rights." With none                   
stated, he moved it as a conceptual amendment and without                      
objection, CHAIRMAN TAYLOR said that conceptual amendment would be             
incorporated into a committee substitute.                                      
MS. LAUREE HUGONIN, representing the Alaska Network on Domestic                
Violence and Sexual Assault (ANDVSA), came forward to inform the               
committee of what nonprofit and volunteer groups around the state              
are doing to support victims' advocacy. She cited results of a                 
statewide survey of victims that asked what their number one need              
was and overwhelmingly found it was legal advocacy. She informed               
the committee that in 23 communities around the state there are                
legal advocates for victims thanks to federal grants. She said this            
money has also allowed a paralegal coordinator to be placed in the             
criminal division of the DOL to work with victim witness                       
coordinators in each district attorney's office to prepare victims             
for court. She talked about other positions and programs that exist            
around the state and others in the planning phase. She hoped these             
projects could also be supported with state funding and said it                
would help to take better care more of more victims. Her only                  
concern with a centralized office of victims' right is that the                
office will be overwhelmed. She suggested perhaps later as the                 
office was being instituted, boundaries could be set to determine              
what kind of representation would be available to whom and how                 
CHAIRMAN TAYLOR agreed with MS. HUGONIN that it is unlikely victims            
will always have legal representation with the limited budget                  
available. He said the victim already has an attorney there, that              
being the district attorney, and the idea is the advocate would be             
there to protect the victims' rights under our Constitution, as                
amended. He speculated the work load would be tremendous, making it            
difficult for this office to do much more than triage. They will               
most likely develop protocol to help deal with the cases that are              
most grievous.                                                                 
TAPE 98-3, SIDE B                                                              
Number 001                                                                     
SENATOR HALFORD said he was  also concerned that this office would             
help people who had been denied their Constitutional rights, not               
provide people with an attorney to find ways to mess up their                  

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