Legislature(2009 - 2010)BELTZ 105 (TSBldg)
04/02/2010 01:30 PM JUDICIARY
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 241-POST-CONVICTION DNA TESTING; EVIDENCE CHAIR FRENCH announced the consideration of SB 241. It was heard previously. 2:19:41 PM BILL OBERLY, Executive Director, Alaska Innocence Project, said his testimony is supplementing the written testimony he submitted when bill was introduced. He described SB 241 as a very important piece of legislation that does not do what the title indicates. As currently written the bill it is a post- conviction DNA restricting bill rather than a post-conviction DNA testing bill. It will hinder innocent people who are trying to use DNA testing to prove their innocence and it will hinder law enforcement because an innocent person in jail means the actual perpetrator is free to assault again, he said. Page 10, lines 11-23, and page 16, line 28-30, which both address timeliness, shouldn't be in the bill, he said. Innocent people will bring their action for testing as soon as they are able to do so. [Sec. 12.73.040] speaks of presumptions of timeliness, but once in court the judge will look at it as a burden that the claimant has to overcome. He highlighted that of the 251 cases nationally where people have been exonerate using DNA evidence just one or two would have been brought within the three-year time restriction in the bill. MR. OBERLY noted that the House deleted the provision on page 9, lines 3-5 and lines 10-13 and suggested this committee do the same. It says that if a person didn't test at the trial level they don't get to ask for DNA testing post conviction. He pointed out that failure to test at the trial level is often the attorney's decision so this provision simply adds to the misfortune of someone who has been misrepresented at the trial level. 2:25:10 PM MR. OBERLY said the restriction relating to concession of guilt on page 8, lines 5-7 and lines 29-30 should be removed from the bill. It says that if a person admitted guilt in an official proceeding, he or she cannot request or get DNA testing post- conviction. This is an unfair restriction on people who confessed for reasons other than their guilt and are trying to undo their wrongful confession, he said. MR. OBERLY suggested that the language on page 9, lines 24-29 relating to the standard required for post-conviction DNA testing orders should be replaced with the following language: "(10) a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." He related that twenty other states use that language and it's proven to be an effective standard. Page 3, lines 29-31 and page 11, lines 17-18 the person who has been wrongfully convicted pay for the retrieval of the evidence to prove his or her innocence. The practical effect is to prevent people from being able to make the claim. He pointed out that no other state has such a restriction. MR. OBERLY highlighted his experience as a criminal defense attorney and familiarity with innocence work and concluded that this bill will weigh more heavily on people in Bush Alaska and among Alaska Natives. 2:28:47 PM MR. OBERLY said his final point relates to expanding the task force to provide a more full perspective. The provisions on page 15, lines 16-24, should be expanded to deal with the issues of retention and disposal that are raised in the legislation and the membership should be expanded to include the criminal defense community, legislators, the Alaska Native Justice Center, and the Alaska Innocence Project. MR. OBERLY said the Alaska Innocence Project believes that these changes are the absolute minimum needed to make the bill a post- conviction DNA testing bill. These changes would allow those with legitimate innocence claims to get testing and allow law enforcement to effectively identify and catch the real perpetrators. He asked the committee to consider making the suggested amendments and correct the restrictions that would keep people from making claims when they have a legitimate innocence claim. 2:31:02 PM BARB BRINK, representing herself, said she is testifying from the perspective of 23 years as an Alaska public defender. She related that she appreciates that the bill was introduced, but she agrees with Mr. Oberly that the procedural and financial barriers that it sets up will preclude innocent people from obtaining DNA testing. In fact, it's more likely to keep an innocent person in jail than no bill at all. She highlighted the remarkable statistic that in the history of the state not even one convicted person has been able to access the evidence for post conviction DNA testing. MS. BRINK said that while the proposed new section on preservation of evidence has some deficiencies that are cause for concern. Page 3, lines 14-17, says that a law enforcement agency does not have to preserve physical evidence if it's "impractical" or "hazardous" to do so. This creates lesser standards of due process for those citizens who are convicted of crimes in rural Alaska and it doesn't explain who decides what is "impractical" or "hazardous." She asked the committee to remove all of subsection (b) on page 3, lines 14-24. MS. BRINK suggested the committee remove subsection (e), page 4, lines 1-18 because it has serious constitutional deficiencies. It creates a presumption that evidence can be destroyed if nobody responds in writing within 120 days. This doesn't accommodate the convicted person who is illiterate, who doesn't speak English as their first language, or who has been moved out of state by the Department of Corrections and hasn't gotten their mail. She further pointed out that after one year a convicted person no longer has appointed counsel. 2:35:35 PM MS. BRINK said page 2, lines 30-31, and page 3, lines 1-6, talk about preserving evidence through the state trial process but then allow it to be destroyed before the federal review. This doesn't make sense. She suggested amending subparagraph (C) on page 3, lines 3-6, to allow for a timely application for post- conviction release. Add the language "one year" after the word "paragraph" and add subparagraph (D) that states that "the timely petition for writ of habeas corpus is filed in federal court, the date that a judgment or order dismissing or denying the petition for writ of habeas corpus becomes final." This would allow a person to exhaust all remedies and doesn't create an arbitrary process for destroying evidence too soon, she said. MS. BRINK said she also has concerns about the testing procedures. Of greatest concern is on pages 7-8, lines 11-17. Section 6 requires an affidavit by the trial lawyer about the efforts that were made to get DNA testing and why DNA testing was not sought at trial. Then the judge has to make a finding that the lawyer didn't forgo this testing for some tactical reason and that the theory of the defense at trial was not inconsistent with an innocence claim post-conviction. It also requires that the judge find that the identity of the perpetrator was disputed at trial. This is an insurmountable barrier for an innocent person because it requires perfection and prescience on the part of the defense attorney. This is unrealistic and discounts the reality that bad lawyering is one of the most prevalent reasons that innocent people get convicted. She cited a recent Illinois study that showed that bad lawyering accounted for 21 percent of death row exonerations. An overworked attorney can fail to investigate, fail to find a witness, or make an error in judgment. If an innocent person is convicted because of this they shouldn't stay in jail but that's what those sections require, she said. 2:38:58 PM MS. BRINK said it doesn't make sense that the bill requires that the applicant has not admitted or conceded guilt in an official proceeding when the reality is that in 25 percent of the cases where people have been exonerated, they have been able to show that the defendant confessed or admitted to something that they did not do. It's a poor system for the state to make an unbeatable hurdle that someone cannot overcome, she said. MS. BRINK agreed with Mr. Oberly that the timeliness restrictions should be eliminated because timeliness is completely unrelated to guilt or innocence. She said she also agrees that there should be no requirement for a judge to find certainty as to what might happen in the DNA testing before testing is allowed to go forward. The worst thing that could happen is that the DNA would show that the person is guilty and they'd stay in jail. She said she also agrees that the cost of procuring evidence or additional testing should not be put on the person claiming innocence. She opined that these hurdles assume that there are no innocent people in jail, which ignores the reality of the system. 2:41:32 PM MS. BRINK highlighted that of the 251 people in the country that have been exonerated, all had trials that were thought to be fair, they all had appeals that were thought to be complete, they all had petitions for review and post-conviction release that were thought to be adequate. Even so, they were still all wrong and those people were innocent. She stated agreement with Mr. Oberly's suggestion to expand the task force and asked the committee to remember that the average innocent person who is exonerated by DNA has already lost 13 years of their life in jail. 70 percent of those who were exonerated are members of minority groups and in 40 percent of those cases DNA identified the actual criminal. In conclusion she asked the committee to draft a bill to make it easier for an innocent person to be exonerated and not more difficult. CHAIR FRENCH confirmed that she is currently working in the federal system and asked if she knows what the federal provisions are with respect to post-conviction DNA testing. MS. BRINK said that's a highly specialized area and there's just one lawyer in her office that is familiar with the writs of habeas corpus. 2:43:43 PM QUINLAN STIENER, Public Defender, Public Defender Agency, Department of Administration, said he would focus on the impact that SB 241 would have on the agency. Section 3, page 4, line 11, lists an attorney for the prosecution in the notice requirement. To ensure that notice is complete, he suggested making that reference plural or adding a separate list because there could be a series of attorneys in the case and the trial attorney may be the most removed at the time the evidence is considered for disposal. Section 6, page 8, line 29, relates to the findings required for post-conviction DNA testing orders. Paragraph (3) prohibits relief for people who have falsely confessed in an official proceeding. That could be interpreted to apply to guilty or no contest pleas. He noted that guilty pleas were specifically excluded from that prohibition in the House bill. Studies indicate that people do falsely confess and it's clear that under pressure innocent people to plead no contest. 2:46:22 PM Page 8, line 31, paragraph (4) prevents testing of evidence from another prosecution or third-party suspect. As written the language could be interpreted as being limited to the particular case where the evidence that might need to be tested could have been collected in another criminal prosecution or it might be required from another person, typically a suspect. That language conflicts with the language on page 10 line 31, which gives the judge broad authority to order testing. A narrow interpretation could prevent someone from bringing a claim even though the evidence exists. Page 9, line 2, will have a large impact on the Public Defender Agency. It will foreclose the opportunity to obtain post- conviction DNA testing if somebody elected not to test the evidence at the original trial. That provision would put pressure on attorneys to test everything and would ultimately foreclose an opportunity for relief if an attorney elected not to test the evidence even when it might have been a reasonable decision. That section was removed from the House version. On page 9, lines 19 and 22, paragraphs (8) and (9) would require someone to have contested identity at trial. There may be situations where the client says they weren't there, but the evidence establishes a legitimate self defense claim and a trial attorney could reasonably elect that defense over identity. The client has no control over that. A person could technically claim self defense and "I wasn't there" at the same time, but it would be inconsistent and most people would choose not to do that. 2:50:12 PM Page 9, lines 24-29, has a requirement of reasonable probability that conclusively establishes innocence This puts two standards together creating inconsistency and ambiguity. He suggested rewording the section to say that the DNA testing, if favorable, will produce new material evidence and noted that the House version deleted the word "conclusively" from line 29. Page 10, lines 17-22, relating to timeliness. Subparagraph (A), lines 20-21 defines timeliness as the applicant was incompetent and that substantially contributed to the delay. Lines 22-23 have a broad good cause requirement, but there's also a definition of what will also constitute good cause. The risk is that a judge will interpret that as being some standard of what good cause might be, which limits the interpretation. In other areas of statute you start to limit once you start defining things so this could restrict the intent good cause requirement. Also, timeliness would likely lead to litigation about what good cause is. 2:56:45 PM CHAIR FRENCH asked Ms. Carpeneti if she'd like to respond to the testimony that was given today. ANNIE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law (DOL), introduced herself. ORIN DYM, Forensic Laboratory Manager, Statewide Crime Lab, Department of Public Safety (DPS), introduced himself. MS. CARPENETI acknowledged the concern about the timeliness factor and noted that the House removed the paragraph about incompetence because it may set a bar for other good cause. She clarified that the intent is to say that there is a timeliness presumption to encourage people to bring the application sooner rather than later. "Good cause is not a very high standard to meet and for that reason we feel a timeliness requirement should remain in the bill," she said. MS. CARPENETI said SB 241 generally follows federal law and the Innocence Project in the oral arguments in the Osborn case generally agreed that it was the gold standard for statutes dealing with post-conviction relief. She noted that the attorney decision at the trial level to test or not was removed from the House version and that's acceptable to the state. With respect to the concession of guilt, the state understands that some people plead guilty or nolo contendere for reasons other than the fact that they are guilty. She noted that the House version specified that for purposes of this chapter, a plea of guilty or nolo contendere is not a concession or admission of guilt. She pointed out that the statutes do not define the police interrogation of a person as an official proceeding so a confession in that venue would not be an admission or concession of guilt. MS. CARPENETI said she understands Mr. Oberly's concern about the standard required for post-conviction DNA testing orders, but it's fairly clear and is similar to the federal statutes. It doesn't require a judicial officer to make any greater speculation or guess than any other decision he or she makes every day, all day. she said. She said she also understands Mr. Steiner's point but she believes that it's clear that the bill is talking about reasonable probability that this test, if ordered, would provide material evidence that could establish innocence. She noted that at the state's suggestion the word "conclusively" was removed from page 9, line 29, of the House version. 3:01:29 PM MS. CARPENETI said that with respect to paying for retrieval of evidence, most of the people who will bring these applications will be represented by public lawyers and they won't have to pay. The House version added a specific provision that a person doesn't have to pay for retrieval of evidence if he or she can't afford to do so. She reported that this provision is the result of a question that came up in a certain case where retrieval was very expensive. The notion is that if the applicant can pay that might be better than the police department or the state having to paying. MS. CARPENETI referred to Ms. Brink's testimony and explained that retention of evidence is new duty on police departments and some don't have the ability to save everything that is collected in connection with a prosecution or investigation. This provision specifically allows the police to save cuttings or samples when it's not reasonable or feasible to store the whole thing. The bill does require police departments to adopt and follow written procedures for doing so. MS. CARPENETI said she would review the provision on the limits for keeping physical evidence because she understood that it covered all litigation in the federal arena as well. She added that there are other statutory remedies post-conviction for people who have been represented by ineffective lawyers. 3:04:53 PM CHAIR FRENCH related that in 2004 the federal statutes were passed in a bipartisan effort and signed into law by President Bush. He said that he's leaning toward the federal model for this bill and before the next meeting he'd like to hear why the state shouldn't use that gold standard. CHAIR FRENCH held SB 241 in committee.