Legislature(1997 - 1998)
01/28/1998 02:00 PM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 amendment. 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 effectiveness. 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 these. 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 appropriate. 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 often. 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 cases.