Legislature(2009 - 2010)BELTZ 105 (TSBldg)

04/02/2010 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved SCS CSHB 101(JUD) Out of Committee
Heard & Held
Heard & Held
          SB 241-POST-CONVICTION DNA TESTING; EVIDENCE                                                                      
CHAIR FRENCH announced the consideration  of SB 241. It was heard                                                               
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                                                               
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                                                               
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                                                               
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.                                                                                          

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