Legislature(2021 - 2022)BUTROVICH 205
04/05/2022 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB188 | |
| SB221 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 188 | TELECONFERENCED | |
| *+ | SB 221 | TELECONFERENCED | |
| *+ | SB 194 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 188-CRIM PROCEDURE; CHANGE OF NAME
3:40:51 PM
CHAIR SHOWER announced the consideration of SENATE BILL NO. 188
"An Act relating to criminal law and procedure; relating to a
petition for a change of name for certain persons; relating to
procedures for bail; relating to consecutive sentencing for
violation of condition of release; relating to the duty to
register as a sex offender; amending Rules 6(r) and 47, Alaska
Rules of Criminal Procedure; amending Rule 12, Alaska
Delinquency Rules; amending Rule 84, Alaska Rules of Civil
Procedure; and providing for an effective date."
3:41:10 PM
JOHN SKIDMORE, Deputy Attorney General, Criminal Division,
Department of Law, Anchorage, Alaska, stated that SB 188 does
four primary things to protect victims. He described three of
the four points.
1) Name Changes People under the control of the Department of
Corrections (DOC) or that must register as a sex offender
are required to notify DOC, the Department of Public
Safety (DPS), and the victims of any name changes. This
addresses the complaints victims have had that changing
one's name can manipulate the system to hide on the sex
offender registry or when their status changed in the
Department of Corrections. The court also has new
standards to evaluate whether or not the name change is
appropriate.
2) Bail Provisions in the bill about bail seek to address the
significant number of defendants who are released pretrial
with little or not bail. The problem is that a significant
number of defendants who are released on their own
recognizance (OR), violate the terms of their bail
repeatedly and the courts have not adjusted bail to
reflect the additional violations. SB 188 proposes to
expand the existing presumption that the defendant poses a
danger to the community if they violate conditions of
bail. This should suggest to the court that it adjust
subsequent bail to reflect the additional violations.
3) Grand Jury Mr. Skidmore described the court rule changes
as the most important part of the bill. First, hearsay
would be allowed at grand jury. This stems from the 2019
case, State v. Powell, in which the court indicated that
presenting a recorded video statement of a victim of child
sexual abuse to police and investigators was not
admissible at grand jury without the child testifying at
grand jury as well. The Department of Law and the
administration's position on this issue is that the ruling
in Powell was fundamentally contrary to the bill that
passed in 2005 that allowed hearsay to be presented in
those circumstances. In the Powell case the court
indicated that it thought the rule change applied to
trials and not grand jury because one of the requirements
it found was that the victim would be subject to cross
examination and the court found that the victim is never
subject to cross examination at grand jury because the
defendant's counsel is never present at grand jury. The
court further stated that if the legislature had intended
to allow hearsay at grand jury, it should have amended the
court rules to allow such information at grand jury. SB
188 amends the court rules to allow hearsay at grand jury.
This protects victims in any criminal case from being
retraumatized. Additionally, this change will help
alleviate the significant backlog of cases that resulted
when grand jury and trial proceedings were shut down due
to the global health pandemic. Research indicates that the
federal government and 32 states allow hearsay at grand
jury. He highlighted that when the Alaska Constitution was
enacted, hearsay was allowed at grand jury, so it is
constitutional. In 1973 the Alaska Supreme Court adopted a
rule to prohibit certain types of hearsay and SB 188
changes that rule.
4) Plain-Error Rule [Mr. Skidmore did not discuss the Plain-
Error Rule.]
CHAIR SHOWER listed the individuals who were available to answer
questions.
3:49:08 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, Anchorage, Alaska, stated that
while SB 188 is problematic in a number areas, she would focus
on just two. First, the Court System believes it would be very
problematic to implement Section 6. The court does not believe
it would be more efficient to require the court to issue written
findings. She referenced a document in the bill packets that
shows that about 20,000 bail orders are issued each year, and
each of those would need to have written reasons for each of the
findings. The number of bail hearings has also been about 20,000
per year. She directed attention to the blank four-page bail
order in the packets to demonstrate that there are dozens of
things the court can order by checking different boxes.
MS. MEADE explained that when somebody is arrested and
arraigned, the prosecutor typically seeks to have a substantial
number of conditions imposed if the defendant is to be released.
The defense attorney or public defender will typically want
fewer restrictions on the defendant. She said she finds it
ironic that SB 188 would require the court to make a written
finding for everything that is ordered when it is the prosecutor
that is asking for most of the conditions. She maintained that
the reason is generally very obvious when a box is checked. For
example, if there is a domestic violence condition that says the
defendant shall not return to a specific residence, the reason
is clear. The defendant presents a danger to the person at that
residence.
MS. MEADE stated that the requirement in Section 6 is
unnecessary and it would cripple the Court System. She
highlighted that she had yet to submit a fiscal note but it
would be shocking, because new judges and clerks would be needed
to handle the added work.
3:53:38 PM
MS. MEADE said the Court System's second concern relates to the
criminal court rule changes in the bill. She explained that
there are rules of procedure that let the attorneys or self-
represented persons know how to get the substantive rights the
legislature gives them. The 13-member Criminal Rules Committee
meets four or five times a year and they are experts in criminal
procedure and are well-qualified to talk through any proposed
rule changes, such as whether the hearsay rule should be changed
as proposed in the bill. She said the technical changes to the
rules proposed in Sections 15 and 16 that redefine plain error
are difficult to understand and it seems that the Criminal Rules
Committee is a more appropriate forum to handle the proposed
rule changes than the legislature. She said she did not have a
view about whether the court rule changes were a good or bad
idea or whether they were constitutional, but she would say that
it deserves a lot of attention.
MS. MEADE noted that she also included two Supreme Court cases
in the packets that speak to the substance of the hearsay rule
and whether it should be allowed at grand jury. Although Mr.
Skidmore said it was not a constitutional issue, she said the
Wassillie v. State case has pages that analyze the
Constitutional Convention minutes and why the grand jury rule is
important. It is considered a protection to keep innocent people
from being brought to trial. She included the cases to
illustrate the complexity of the issue and that it needs to be
explored in detail, preferably by people who work with court
rules daily.
MS. MEADE suggested that the question about court rule changes
could be resolved in another way. She pointed out that the rule
changes proposed in the bill were never submitted to the
Criminal Rules Committee. Furthermore, there is a fulltime court
rules attorney whose job it is to work with the Criminal Rules
Committee to put things in the appropriate format and once a
month present to the Supreme Court recommendations and thoughts
about rule changes. That did not happen with the rule changes
presented in the bill, but it could, she said.
3:58:36 PM
CHAIR SHOWER asked for an explanation of the process for the
administration to work with the Criminal Rules Committee on
these matters.
MS. MEADE replied it can be very simple because anybody can
contact the court rules attorney to suggest or discuss a rule
change. Also, the Department of Law has two members on the
Criminal Rules Committee who can suggest a rule change at any of
the meetings and the court rules attorney will open a file and
it will be discuss at subsequent meetings.
CHAIR SHOWER asked if rule changes can happen outside the
legislative process.
MS. MEADE answered yes. The Rules of Court are procedural, not
substantive, so the Supreme Court adopts them without
legislative action.
4:00:13 PM
SENATOR HOLLAND noted that he sees Wassillie v. State in the
documents but not the other Supreme Court case.
MS. MEADE said State v. Gieffels is the 1976 case that speaks to
the protections the grand jury provides and adopts the Alaska
Bar Association (ABA) standards for how prosecutors present
cases to grand juries, which is basically the court rule.
CHAIR SHOWER advised that the cases were available on BASIS but
were not printed for the bill packets.
SENATOR REINBOLD stated that she always favors efforts to speed
up the prosecution of sexual assault cases so perpetrators are
put behind bars more quickly. However, she had never seen a bill
with so many proposed court rule changes and she would like
further explanation of the Criminal Rules Committee and its
processes.
4:02:17 PM
MS. MEADE stated that the constitution gives the legislature the
right to change court rules with a two-thirds majority vote.
That typically happens when the legislature changes a
substantive law that incidentally changes a court rule
correlated to that substantive law. That is what needs to be
passed by a two-thirds majority vote, and it typically is. What
is unusual is to have a bill such as this that directly changes
court rules, although it is permitted by the constitution.
MS. MEADE explained that the Criminal Rules Committee is one of
nine rule committees that discuss procedural rule changes and
make recommendations to the Supreme Court. The Supreme Court
appoints the members of these committees according to their
expertise. The committees tend to be a well-rounded group of
people who discuss whether proposals for a rule change should be
recommended to the Supreme Court to ultimately be adopted as a
procedural rule.
She noted that a prosecutor is among the members of the Criminal
Rules Committee and that attorney might propose this change to
the hearsay rule and the committee would talk it over and come
up with a recommendation. The court rules attorney then takes
that recommendation, as well as any recommendations from the
other eight rules committees to the next monthly meeting with
the Supreme Court. The attorney briefs the court on what the
different rules committees discussed and whether or not they
decided to put forward a recommendation or just wanted to
highlight a minority view. The Supreme Court then has the chance
to adopt any rule changes after it goes through this process.
SENATOR REINBOLD asked if there were members of the
administration that could already do this. She also asked if the
Criminal Rules Committee process was similar to the process the
legislature follows based on Mason's Manual of Legislative
Procedure.
MS. MEADE replied the rules committees sit around a conference
table and discuss things in a less formal, more conversational
way than the legislature does.
SENATOR REINBOLD restated her question.
4:06:34 PM
MS. MEADE said two Department of Law attorneys and an advocate
from the Office of Victims' Rights are members of the committee.
She said she wasn't clear what Senator Reinbold meant when she
asked if the administration could do this.
SENATOR REINBOLD indicated her question was answered.
CHAIR SHOWER offered his perspective that the question was
whether those members had the ability to suggest the changes
proposed in the bill and his understanding is that they do.
MS. MEADE said that's correct.
SENATOR REINBOLD said the second point was to compare the court
rules to the procedures the legislature follows based on
Mason's. It was an effort to draw a parallel between two
different branches of government.
CHAIR SHOWER asked Ms. Meade if she would provide the fiscal
note because it will factor into the bill's progression.
4:07:55 PM
MS. MEADE said she estimated that the court would need new
judges in each of the 10 major courts and each judge with law
clerks and staff costs about $700,000 per year. There would also
be capital expense because there aren't any courtrooms available
for additional judges. The cost would be in the $7 to $10
million range.
CHAIR SHOWER summarized that the estimated recurring cost would
be in the $7 to $10 million range and then there would be a one-
time capital cost for facilities.
MS. MEADE agreed.
CHAIR SHOWER said he would talk to the members to ask if they
wanted anything more formal than the estimate.
He asked Lisa Purinton if she had any comments on the bill.
4:09:15 PM
LISA PURINTON, Chief, Criminal Records and Identification
Bureau, Division of Statewide Services, Department of Public
Safety, Anchorage, Alaska, said she had nothing to add.
CHAIR SHOWER asked Renee McFarland if she had any comments on
the bill.
4:09:31 PM
RENEE MCFARLAND, Deputy Public Defender, Appellate Division,
Public Defender Agency, Anchorage, Alaska, said she was
available to answer questions but had no comments at this time.
4:10:04 PM
CHAIR SHOWER opened public testimony on SB 188.
4:10:24 PM
CHRISTINE HUTCHINSON, representing self, Kenai Peninsula,
Alaska, stated that she felt compelled to point out that a
primary function of a grand jury is to protect the people from
corrupt elected and appointed officials. She said [Mr. Skidmore]
is familiar with the efforts to prevent a grand jury from
hearing things it needs to hear to help citizens defend
themselves from bureaucracy. She maintained that making hearsay
part of the testimony and increasing efficiencies by saving
money and time does nothing to restore the pain and suffering of
the people when they have no recourse.
MS. HUTCHINSON agreed with Ms. Meade that the proposed changes
should have gone to the Criminal Rules Committee so they could
be discussed by the people who deal with criminal rules. She
stated opposition to SB 188 and suggested scrapping hearsay and
creating a grand jury that does what it was originally intended
to do, which is to protect the people.
4:13:46 PM
QUEEN A. PARKER, representing self, Sterling, Alaska, recounted
the duties of the grand jury during the hearing on SB 188. She
stated that the law must apply equally to all people and the
evidence of crime and corruption must be seen and investigated
by an independent Alaskan grand jury so that those in authority
will be held accountable. She cited the right of all Alaskans to
report crime to the grand jury and the right of the grand jury
to investigate those crimes as guaranteed by art. I, sec. 8 of
the state constitution; the duty of inquiry into crimes and
general powers under AS 12.40.030; the obligation of a juror to
disclose knowledge of crime under AS 12.40.040; jury tampering
under AS 11.56.590; the transcript from the Alaska
Constitutional Convention that talks about the power of grand
juries to inquire into the willful misconduct of public
officers; and the Alaska grand jury handbook that clarifies that
the statute authorizes a juror to ask the grand jury to
investigate a crime that the district attorney has not presented
to them.
MS. PARKER concluded, "We want justice and I hope to God that
our representatives that are in authority will represent us in
these situations."
4:16:11 PM
MICHAEL GARVEY, Advocacy Director, American Civil Liberties
Union of Alaska, Anchorage, Alaska, voiced serious concerns
about SB 188 eroding the due process rights of criminal
defendants and others who are erroneously convicted of crimes.
In particular, Sections 15 and 16 would impede correcting errors
made during the trial process. He maintained that those sections
would change the criminal appeals system by valuing finality of
conviction over the fairness of those convictions.
MR. GARVEY emphasized that fairness at trial is a cornerstone of
due process, particularly for individuals who do not have the
resources to fight unjust convictions. He said reversing errors
made during trial is already difficult and SB 188 will make it
more so. He pointed out that Section 14 would markedly increase
the amount of hearsay allowed at grand jury, which would
undercut a grand jury's ability to ask questions and assess the
truthfulness of the testimony. Defendants already cannot present
evidence at grand jury, and this change would further stack the
deck and allow cases to advance when the evidence is
questionable. He stated that these provisions and the language
that would have reduced the number of unconvicted people who are
released on bail before trial, would erode due process rights.
MR. GARVEY stated that supporting victims does not have to come
at the expense of due process rights. Giving prosecutors more
tools to put people in prison unjustly and undercut defendants'
ability to maintain their innocence does not represent this
value. For these reasons ACLU Alaska opposes SB 188.
4:18:22 PM
JOAN CORR, representing self, Soldotna, Alaska, stated that it
is a travesty to think that hearsay could be allowed as
evidence. She maintained that there are likely many examples of
this being used against innocent people. She agreed with a
previous caller who suggested the committee eliminate all
reference to the grand jury from the bill. She concluded, "I
want the rights of the grand jury restored instead being told
what they can and cannot do."
4:19:55 PM
MIKE COONS, representing self, Palmer, Alaska, thanked Senator
Reinbold for her last questions and suggested that the problems
with the justice system stem from the fact that "we have a bunch
of lawyers that can change rules when it's supposed to be the
legislature that changes the rule through legislation and
bills." He insinuated that the Criminal Rules Committee was
nothing more than an extension of Legislative Council that
"doesn't give a hoot and a holler about what We the People say;
it's only what the lawyers say." As much as he does not agree
with the ACLU on most matters, he was leaning towards a "No" on
SB 188. He described SB 188 as a convoluted mess, which he
always opposes.
4:21:42 PM
CHARLES MCKEE, representing self, Anchorage, Alaska, stated that
he faxed an application for the permanent fund [dividend]. It
had a notary witness and his signature on the bottom to indicate
who he is and his lack of confidence in the legislative body and
the voting aspect of the Bar Association. He continued to
testify off topic including that there was no citation for the
reason that he was arrested and booked in the Palmer jail.
4:26:00 PM
CHAIR SHOWER closed public testimony on SB 188.
He asked Mr. Skidmore to provide closing comments.
4:26:22 PM
MR. SKIDMORE stated that the Gieffels and Wassillie cases that
Ms. Meade cited are illustrative of why these court rules should
change. The Gieffels case was handed down in 1976, three years
after the Supreme Court changed the rules to say that hearsay
wouldn't be admissible. In that case the defense argued that the
indictment should be dismissed because the state had presented
hearsay from doctors who were not available to appear in person.
Subsequent to that case, the rules were changed to allow
telephonic testimony. He restated that Gieffels illustrates that
when the courts hand down certain rulings, it is appropriate for
the legislature to step in and fix policy issues.
MR. SKIDMORE agreed with Ms. Meade that the Criminal Rules
Committee can meet to look at rules. However, he suggested that
it was out of the ordinary for the committee to meet and
overrule something that the courts had already handed down as
case law. Furthermore, he said the committee meets just three or
four times a year and takes a very long time to review and talk
about rules. He said the legislature is a more efficient
process.
MR. SKIDMORE advised that a bill that originally allowed hearsay
at grand jury began in the legislature. That was challenged in
State v. Powell and an express statement in that case was that
if the legislature wants to allow hearsay, it should change
other court rules. That is what SB 188 proposes to do, he said,
and Ms. Meade indicated it was appropriate.
MR. SKIDMORE said the administration agrees with the aspect of
the Wassillie case that talks about the important role the grand
jury plays in the protection of constitutional rights. However,
the administration wants it to be in a more logical and
commonsense manner that is consistent with what 32 other states
and the federal government do by allowing hearsay at grand jury.
Alaska grand juries already consider a significant number of
types of hearsay, but it still presents challenges and problems
that could be easily remedied by what this bill proposes. He
recounted the particulars of the case and that the Supreme Court
said the case needed to be overturned because a report
introduced at grand jury violated a court rule that hearsay was
not permitted at that stage. It is that type of inefficiency the
bill seeks to address.
4:31:57 PM
MR. SKIDMORE said he appreciates Senator Reinbold's concerns
about the number of pages in the bill that address court rules,
but he wanted to point out that the result will be to simplify
Criminal Rule 6 that addresses grand jury. The other pages
address the Plain-Error Rule. He noted that the grand jury
decision in the Wassillie case was overturned based on a concept
in the Plain-Error Rule. He acknowledged that the Plain-Error
Rule is a more complicated rule and he would understand if this
committee was more comfortable leaving it to lawyers to sort
out. By contrast, he said grand jury is not complicated; it is a
simple, common sense solution to make things better for victims
and to make the system work more efficiently.
MR. SKIDMORE submitted that SB 188 does not say that grand jury
isn't still a protection for the people. All the protections are
still present. SB 188 just provides a different way to present
evidence, which makes it easier for victims and is consistent
with what most other states use.
MR. SKIDMORE said he appreciates the concerns expressed earlier
from the Kenai Peninsula. He emphasized that those issues must
and will be addressed, but SB 188 was not the right vehicle
because that's not what the bill is about.
4:35:34 PM
SENATOR REINBOLD asked 1) if the grand jury is there to protect
the people; and 2) if he could give a concise update and what is
happening with the grand jury in Kenai.
MR. SKIDMORE confirmed that grand juries are to protect the
people. However, that protection is to ensure that the evidence
that is reviewed warrants an indictment so the case can go
forward to trial. He said he couldn't discuss the ongoing
litigation further other than to say that he hopes resolution
will be soon.
4:37:10 PM
CHAIR SHOWER found no further questions or comments and stated
he would hold SB 188 in committee for future consideration.