Legislature(2009 - 2010)HOUSE FINANCE 519

03/31/2010 01:30 PM House FINANCE

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01:44:14 PM Start
01:45:21 PM HB316
03:21:06 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                  HOUSE FINANCE COMMITTEE                                                                                       
                      March 31, 2010                                                                                            
                         1:44 p.m.                                                                                              
1:44:14 PM                                                                                                                    
CALL TO ORDER                                                                                                                 
Co-Chair Stoltze called the  House Finance Committee meeting                                                                    
to order at 1:44 p.m.                                                                                                           
MEMBERS PRESENT                                                                                                               
Representative Mike Hawker, Co-Chair                                                                                            
Representative Bill Stoltze, Co-Chair                                                                                           
Representative Bill Thomas Jr., Vice-Chair                                                                                      
Representative Allan Austerman                                                                                                  
Representative Mike Doogan                                                                                                      
Representative Anna Fairclough                                                                                                  
Representative Neal Foster                                                                                                      
Representative Les Gara                                                                                                         
Representative Mike Kelly                                                                                                       
Representative Woodie Salmon                                                                                                    
MEMBERS ABSENT                                                                                                                
Representative Reggie Joule                                                                                                     
ALSO PRESENT                                                                                                                  
Quinlan   Steiner,   Director,   Public   Defender   Agency,                                                                    
Department  of  Administration;  Anne  Carpeneti,  Assistant                                                                    
Attorney   General,   Legal   Services   Section,   Criminal                                                                    
Division,  Department  of   Law;  Richard  Svobodny,  Deputy                                                                    
Attorney  General,  Criminal  Division, Department  of  Law;                                                                    
Orin  Dym,   Manager,  Forensic  Laboratory,   Alaska  Crime                                                                    
Laboratory, Department of Public Safety.                                                                                        
PRESENT VIA TELECONFERENCE                                                                                                    
Robert   Bundy,   Attorney,    Anchorage;   Barbara   Brink,                                                                    
Anchorage;   Bill   Oberly,   Executive   Director,   Alaska                                                                    
Innocence  Project,  Anchorage; Jeffrey  Mittman,  Executive                                                                    
Director, American Civil Liberties Union-Alaska.                                                                                
HB 316    POST-CONVICTION DNA TESTING; EVIDENCE                                                                                 
          HB 316 was HEARD and HELD in Committee for                                                                            
          further consideration.                                                                                                
HOUSE BILL NO. 316                                                                                                            
     "An Act relating to post-conviction DNA testing, to                                                                        
     the preservation of certain evidence, and to the DNA                                                                       
     identification registration system; relating to post-                                                                      
     conviction     relief    procedures;     relating    to                                                                    
     representation  by the  public defender;  amending Rule                                                                    
     35.1,   Alaska  Rules   of   Criminal  Procedure;   and                                                                    
     providing for an effective date."                                                                                          
1:45:21 PM               RECESSED                                                                                             
1:46:27 PM               RECONVENED                                                                                           
Vice-Chair Thomas invited public testimony.                                                                                     
QUINLAN   STEINER,   DIRECTOR,   PUBLIC   DEFENDER   AGENCY,                                                                    
DEPARTMENT  OF  ADMINISTRATION,  spoke  to  agency  concerns                                                                    
regarding  HB   316.  He  listed   items  he   thought  were                                                                    
vulnerable to  interpretation and which could  have a larger                                                                    
impact on the agency. The first  concern was on page 9, line                                                                    
5,  a subsection  of the  bill requiring  the petitioner  to                                                                    
establish  that  the  evidence  had  been  obtained  in  the                                                                    
prosecution or investigation. He  believed the section could                                                                    
be  interpreted   as  meaning   the  investigation   of  the                                                                    
particular case;  there are cases  where evidence  sought to                                                                    
be tested  could be obtained  from another  investigation or                                                                    
from a third-party suspect.                                                                                                     
Representative  Gara  believed  that each  item  represented                                                                    
something that someone had to  give approval for in order to                                                                    
get  DNA testing.  He queried  possible circumstances  under                                                                    
which  an innocent  person  would  not be  able  to get  DNA                                                                    
testing under  the provision. Mr.  Steiner replied  that the                                                                    
section (containing  "the evidence  sought to be  tested was                                                                    
obtained  as   part  of  an  investigation   or  prosecution                                                                    
described   in  subsection   (1)")   could  potentially   be                                                                    
interpreted to  mean that the  evidence sought to  be tested                                                                    
had  to  be obtained  in  the  particular investigation  for                                                                    
which  the person  was convicted.  He maintained  that there                                                                    
are  circumstances  in  which  evidence  obtained  in  other                                                                    
prosecutions might  establish someone's innocence;  a person                                                                    
could   be  barred   from  obtaining   it  under   a  strict                                                                    
interpretation  of the  language.  He continued  that it  is                                                                    
possible that the language could  be interpreted as applying                                                                    
to anything,  because later  in the  statute, the  judge has                                                                    
authority to  order testing  from third-party  suspects. For                                                                    
example, another prosecution could  occur later in time that                                                                    
has  the same  modus operandi  as  the crime  for which  the                                                                    
person was convicted;  that might bring in  the relevance of                                                                    
the other person and the other case.                                                                                            
Representative Gara  asked for  an example of  evidence that                                                                    
could  be  found in  a  different  investigation that  might                                                                    
prove  a   person's  innocence.  Mr.  Steiner   described  a                                                                    
possible  scenario with  evidence connected  to DNA  samples                                                                    
(such as  cigarette butts) in the  original prosecution that                                                                    
was  not tested  for reasons  of relevance;  a third  person                                                                    
could  become a  suspect  in the  original  case, but  there                                                                    
might  not be  a DNA  sample from  that person  or from  the                                                                    
other crime. Evidence  would need to be  obtained and tested                                                                    
from the  other case and  person to establish  the innocence                                                                    
of the original case being petitioned for.                                                                                      
Representative  Gara   asked  how   the  problem   could  be                                                                    
corrected in  the legislation. Mr.  Steiner opined  that the                                                                    
section  could  be deleted  without  damaging  the bill,  or                                                                    
something could  be added  to the  effect that  the evidence                                                                    
sought to  be tested  would be  relevant to  the prosecution                                                                    
described in Section 1.                                                                                                         
1:51:10 PM                                                                                                                    
Mr. Steiner  addressed the agency's second  concern: Page 9,                                                                    
lines 20 and  23 have a requirement of  identifying a theory                                                                    
of defense  that is not  inconsistent with one  presented at                                                                    
trial  and also  where  identity was  a  contested issue  at                                                                    
trial. He  stated that  the impact of  the provision  to the                                                                    
agency would involve  the attorney's discretionary decisions                                                                    
with regard  to what defense  to select. He believed  it was                                                                    
possible  to have  a  situation in  which  self defense  was                                                                    
selected rather  than identity even though  a client claimed                                                                    
they were  not present. The  decision would be  considered a                                                                    
reasonable  one  by the  attorney,  and  one for  which  the                                                                    
client would have no authority  to insist upon; the person's                                                                    
opportunity to  claim innocence would be  foreclosed through                                                                    
no fault of their own. The  attorney would then be placed in                                                                    
an  ethical  dilemma  about whether  to  elect  an  identity                                                                    
defense according  to the  client's wishes or  to go  with a                                                                    
viable  defense at  trial  in favor  of  protecting a  later                                                                    
post-conviction relief application. He  was not sure how the                                                                    
issue would resolve at trial,  but the attorney would be put                                                                    
into a dilemma that does not exist currently in statute.                                                                        
Representative Gara  summarized that an  attorney, according                                                                    
to line  20, could  proceed with a  defense that  turned out                                                                    
not  to  be  accurate  because of  DNA  evidence  showing  a                                                                    
person's  innocence,  but the  evidence  could  not be  used                                                                    
because of  the defense  chosen. He  did not  understand the                                                                    
concern regarding  line 23. Mr. Steiner  responded that line                                                                    
23 says  that the  applicant was  convicted after  trial and                                                                    
the identity  of the perpetrator  was disputed.  An attorney                                                                    
might  run self  defense  and never  dispute identity,  even                                                                    
though  it could  potentially be  contested. He  pointed out                                                                    
that it was somewhat  inconsistent to claim self-defense and                                                                    
also claim  not to be there;  many attorneys do not  want to                                                                    
run conflicting defenses at the same time.                                                                                      
Mr. Steiner added  as a technical matter  that the beginning                                                                    
of the sentence on line 23  had deleted the word "if" from a                                                                    
prior section. He stated that  the word "if" is necessary to                                                                    
ensure that relief  could be obtained following  a guilty or                                                                    
no  contest  plea.  He  believed  the  error  was  simply  a                                                                    
drafting error.                                                                                                                 
Mr. Steiner  turned to the  agency's third  concern, related                                                                    
to page  9, line 25; the  standard by which the  court would                                                                    
conclude whether  or not the  evidence would be  helpful. He                                                                    
opined  that it  should be  interpreted as  if the  evidence                                                                    
(the  testing)  were  favorable,  then it  would  support  a                                                                    
theory  of  defense  described   in  Section  8  that  could                                                                    
establish  innocence.  He  believed the  language  could  be                                                                    
interpreted   as  saying   that   there   is  a   reasonable                                                                    
probability of a favorable  result; this could substantially                                                                    
increase  litigations   of  post-conviction  relief   to  no                                                                    
productive  end. The  cases  involved  are typically  strong                                                                    
circumstantially,  which is  why the  case is  there in  the                                                                    
first  place.  He noted  that  a  correct reading,  however,                                                                    
would have  the potential  to be  ambiguous. He  suggested a                                                                    
statement  of  legislative intent.  He  offered  to work  on                                                                    
language that  could correct the situation  without changing                                                                    
the substance of the section.                                                                                                   
1:55:51 PM                                                                                                                    
Mr. Steiner  informed the committee  that the  fourth agency                                                                    
concern about  potential interpretation  of the  statute was                                                                    
on  page  9, line  1,  related  to  admissions of  guilt  in                                                                    
official proceedings. He argued that  it was possible for an                                                                    
innocent individual  to admit guilt. He  referred to studies                                                                    
related to  false confessions; the language  would foreclose                                                                    
the possibility of relief under those circumstances.                                                                            
Mr.  Steiner  concluded  with the  agency's  final  concern,                                                                    
found on page  9, line 15, regarding the level  of the chain                                                                    
of custody.  The language could be  interpreted as requiring                                                                    
an  absolutely secure  chain of  custody as  a prerequisite.                                                                    
Typically, chain of custody goes  to the weight of evidence;                                                                    
with a somewhat compromised chain  of custody, a judge might                                                                    
be able to  sort out whether it was so  compromised that the                                                                    
evidence  was   made  irrelevant.  The  language   could  be                                                                    
interpreted   in  a   manner   that   could  eliminate   the                                                                    
possibility of relief.                                                                                                          
Representative Gara  asked for Mr.  Steiner's recommendation                                                                    
for  addressing contaminated  or altered  DNA evidence.  Mr.                                                                    
Steiner  suggested  that one  fix  could  be to  delete  the                                                                    
language; the  concept could  be could  be subsumed  in line                                                                    
25,  subsection (10)  related to  supporting an  established                                                                    
defense.  The  requirement  would not  be  established  with                                                                    
evidence that  was compromised to the  point of irrelevance.                                                                    
He  did not  have  language ready  for  the adjustment,  but                                                                    
offered  to  think  about  how to  separate  the  item  from                                                                    
Section 10  and still  achieve the  same effect  of ensuring                                                                    
the veracity of the evidence.                                                                                                   
Representative Gara questioned leaving  the substance of the                                                                    
subsection  and cutting  out the  middle part.  He suggested                                                                    
the   language:   "the   evidence  has   been   substituted,                                                                    
contaminated,  or  altered in  any  manner  material to  the                                                                    
proposed  DNA testing."  Mr. Steiner  replied that  he would                                                                    
have to think about it.                                                                                                         
Mr. Steiner  pointed to a minor  technical correction needed                                                                    
on page  4, line 11,  related to required notice  before the                                                                    
destruction of evidence.  He detailed that there  could be a                                                                    
series of  lawyers involved  in a case,  and that  the trial                                                                    
attorney  could  be the  least  appropriate  person to  give                                                                    
notice  to.  The  language  could  be  interpreted  as  just                                                                    
requiring notice  to the one attorney.  He suggesting making                                                                    
the  language plural  to include  any attorneys  involved in                                                                    
the case. The  defendant would be ensured  of being provided                                                                    
notice before destruction of the  evidence, so that the most                                                                    
recent person involved in the case would have access.                                                                           
2:00:23 PM                                                                                                                    
ROBERT  BUNDY,  ATTORNEY,  ANCHORAGE  (via  teleconference),                                                                    
spoke  to concerns  regarding the  legislation. He  reported                                                                    
that he had been one of  the attorneys of record for William                                                                    
Osborne in a case brought  before the U.S. Supreme Court the                                                                    
previous year.  He had experience  with and interest  in the                                                                    
topic that he thought could  be helpful to the committee. He                                                                    
noted that he  had practiced law for 38 years  in Alaska and                                                                    
that he had been a prosecutor for about half that time.                                                                         
Mr. Bundy  pointed out  that sometimes  things go  wrong for                                                                    
various  reasons.  He thought  the  bill  intended to  serve                                                                    
justice through preventing unusual  occurrences, but that it                                                                    
had  procedural  problems  that  could  make  it  much  more                                                                    
difficult for  someone who has been  wrongfully convicted to                                                                    
demonstrate that fact. He stressed  that the bill could make                                                                    
it almost impossible to rectify the situation.                                                                                  
Mr. Bundy opined that  the three-year timeliness requirement                                                                    
contained  in  Section  12.73.020,   subsection  (8)  was  a                                                                    
problem. He believed  that most of the time  the issue would                                                                    
not  be found  out right  away but  years later.  People who                                                                    
know  right  away take  appropriate  steps.  In the  Osborne                                                                    
case, the  technology was not  available at the time  of the                                                                    
conviction; the  short tandem repeat (STR)  DNA testing used                                                                    
is now known as the "gold standard" of DNA testing.                                                                             
Mr.  Bundy's second  concern  related to  the  issue of  the                                                                    
defense  being  inconsistent  with  that  presented  at  the                                                                    
trial. He reported experience in  Alaskan cases in which the                                                                    
defendant claimed  not to remember what  happened because of                                                                    
severe intoxication  or other reasons. Someone  still had to                                                                    
decide what  defense to  use. He  referred to  Mr. Steiner's                                                                    
statement about  deciding self defense  when the  real issue                                                                    
was identity.  He argued that  in cases where  the defendant                                                                    
does  not remember,  the  lawyer  might legitimately  decide                                                                    
that   self-defense  was   the  right   choice.  Later   on,                                                                    
biological evidence  might emerge  that could not  be tested                                                                    
for DNA at  the time but that could prove  that someone else                                                                    
committed the crime.  Under HB 316, the  person whose lawyer                                                                    
claimed  self-defense could  never  get relief.  He did  not                                                                    
think the legislation intended the outcome.                                                                                     
2:05:22 PM                                                                                                                    
Mr.  Bundy  opined  that  the  procedural  roadblocks  being                                                                    
proposed  were based  on  the idea  that  people would  take                                                                    
advantage of the system. He  referred to experience with the                                                                    
Osborne case. He  did not believe the issue  would be people                                                                    
trying  to take  advantage  of the  system.  He argued  that                                                                    
people  should  have a  legitimate  way  to prove  innocence                                                                    
using the  gold standard  of STR DNA  testing. He  urged the                                                                    
committee  to look  carefully at  procedural roadblocks.  He                                                                    
thought the  courts could deal  with the issues  without the                                                                    
procedural and temporal roadblocks.                                                                                             
BARBARA  BRINK,  ANCHORAGE  (via teleconference),  spoke  to                                                                    
concerns about HB  316. She informed the  committee that she                                                                    
had  previously been  a public  defender in  Alaska and  was                                                                    
currently an  investigator for the federal  public defender.                                                                    
She believed  that it was  essential to help people  who are                                                                    
factually innocent but wrongly convicted.                                                                                       
Ms. Brink  agreed with  Mr. Bundy  that the  legislation had                                                                    
hurdles  that   could  preclude  an  innocent   person  from                                                                    
obtaining  DNA testing  rather than  helping  them to  prove                                                                    
innocence. She  opined that  some of  the roadblocks  in the                                                                    
bill  would be  more likely  to keep  an innocent  person in                                                                    
jail. She noted that the state's  record is not good: In the                                                                    
50 years  that Alaska  has been a  state, not  one convicted                                                                    
person  has  been able  to  access  post-conviction DNA  for                                                                    
Ms.  Brink stated  that the  first  hurdle in  the bill  was                                                                    
requiring lawyers at trial to  have pre-knowledge about what                                                                    
technologies might emerge in the  future. The requirement of                                                                    
the  theory of  defense at  trial is  not inconsistent  with                                                                    
what is  currently being  asserted or  that the  identity of                                                                    
the perpetrator  was disputed at trial  requires perfection.                                                                    
She referred to  a recent Illinois study showing  that in 21                                                                    
percent  of  cases  where  a  conviction  was  reversed  (an                                                                    
actually  innocent person  was convicted  and then  let go),                                                                    
the cause  was ineffective  representation. She  pointed out                                                                    
that 90 percent  of criminal cases in Alaska  are handled by                                                                    
appointed  lawyers   because  the  clients  are   poor.  She                                                                    
commended the  lawyers "in  the trenches"  who do  the work,                                                                    
but  argued that  the resources  of the  system are  stacked                                                                    
against those lawyers. An overworked  attorney might fail to                                                                    
investigate some avenue, find a  witness, or they might make                                                                    
an erroneous  judgment under pressure at  trial. Convictions                                                                    
have been reversed in other  states after lawyers were found                                                                    
sleeping  or were  disbarred  after  failing to  investigate                                                                    
2:10:26 PM                                                                                                                    
Ms. Brink did not want to  expect anyone in the system to be                                                                    
perfect,   including   eyewitnesses,  police,   prosecutors,                                                                    
judges, and  juries who  have to  make decisions  months and                                                                    
sometimes   years  after   the  occurrence.   She  suggested                                                                    
removing  the timeliness  hurdle, arguing  that there  is no                                                                    
connection between timeliness and innocence.                                                                                    
Ms.  Brink suggested  striking  the  section that  prohibits                                                                    
individuals who  admit guilt. She  noted that in  25 percent                                                                    
of wrongful  convictions, the  defendants confess  to things                                                                    
they did not do for a variety of reasons.                                                                                       
Ms. Brink  also wanted to  remove the burden of  placing the                                                                    
costs  of  procuring  the evidence  and  doing  the  initial                                                                    
testing  from the  person making  the request.  She did  not                                                                    
think evidence gathered in an  investigation belonged to one                                                                    
side or the  other. She believed there was no  basis to show                                                                    
that a  person who can afford  testing is more likely  to be                                                                    
Ms.  Brink   voiced  concerns  about  the   preservation  of                                                                    
evidence  requirements; page  3,  line 16  does not  require                                                                    
preservation when it is "impractical."  She thought the term                                                                    
was  too  broad and  vague  and  not appropriate  for  rural                                                                    
Alaska.   Further,  the   language  could   allow  for   the                                                                    
destruction  of evidence  challenged  and  filed in  federal                                                                    
district court. "Direct review" is  defined in a limited way                                                                    
on page 9, lines 24 to  29 and could result in no obligation                                                                    
to save evidence.                                                                                                               
2:14:55 PM                                                                                                                    
Ms. Brink summarized  that the whole premise  of the hurdles                                                                    
and  roadblocks  was  the  assumption   that  there  are  no                                                                    
innocent people  in jail.  She reported  that 251  people in                                                                    
the  U.S.  had been  exonerated  by  DNA testing,  including                                                                    
people  who were  sentenced to  death. The  average sentence                                                                    
served by  a person who was  exonerated by DNA is  13 years;                                                                    
by the  time the process  works, the actual  perpetrator has                                                                    
been  free   to  commit  other  crimes.   She  reminded  the                                                                    
committee  that  70  percent of  exonerated  defendants  are                                                                    
members of minority groups. In  40 percent of the exonerated                                                                    
cases, the perpetrator was identified  by DNA testing. There                                                                    
have  been exonerations  in 34  states and  Washington D.C.;                                                                    
she looked forward to one in Alaska.                                                                                            
Representative   Gara   queried   the   number   of   people                                                                    
exonerated. Ms. Brink replied 251.                                                                                              
Representative Gara  asked for proposed language  to correct                                                                    
the three issues she had  addressed (the word "impractical,"                                                                    
the issue of attorneys of  record, and judicial review). Ms.                                                                    
Brink  answered that  she would  provide the  committee with                                                                    
language. She noted that all  of her concerns related to the                                                                    
preservation part of the bill.                                                                                                  
Vice-Chair Thomas asked  her to send the  suggestions to Co-                                                                    
Chair Stoltze's  office. Ms. Brink  agreed to do  so. (March                                                                    
31, 2010 letter, copy on file.)                                                                                                 
Representative Gara  queried the  size of her  case-loads as                                                                    
public defender.  Ms. Brink  responded that  when she  was a                                                                    
public defender, Alaska exceeded  the National Legal Aid and                                                                    
Defender Association case-load  standards in every category,                                                                    
even though  the standards  were high  (an attorney  was not                                                                    
supposed to handle more than 150 felony cases per year).                                                                        
2:18:42 PM                                                                                                                    
BILL OBERLY,  EXECUTIVE DIRECTOR, ALASKA  INNOCENCE PROJECT,                                                                    
ANCHORAGE  (via teleconference),  testified that  there were                                                                    
three  areas  of  great  concern  to  his  organization.  He                                                                    
thought a  number of  the issues could  be addressed  by the                                                                    
task  force that  would  be formed  by  the legislation.  He                                                                    
underlined the importance of dealing  with the issues sooner                                                                    
rather than later.                                                                                                              
Mr. Oberly  reported the first  concern with  the timeliness                                                                    
requirement,  which  he  called "nonsensical."  He  stressed                                                                    
that an innocent  person will bring a claim as  soon as they                                                                    
have  the information  and can  prepare. He  underlined that                                                                    
DNA evidence  is still  reliable as time  goes by,  but that                                                                    
preparing the cases takes a lot of time.                                                                                        
Mr. Oberly  continued that the  second major concern  of the                                                                    
Alaska  Innocence Project  was  the  section discussing  the                                                                    
admission or  confession of guilt  as a basis  of conviction                                                                    
in official  proceedings. The  issue was  clarified somewhat                                                                    
in  the  House  Judiciary   Committee,  but  he  felt  false                                                                    
confessions  were  still  not  addressed.  His  organization                                                                    
wanted the  section deleted entirely;  if not,  there should                                                                    
be clarification that false confessions  are not included in                                                                    
the restriction.  He believed the practical  effect would be                                                                    
to  prevent   people  from   bringing  claims   rather  than                                                                    
balancing claims.                                                                                                               
2:22:55 PM                                                                                                                    
Mr.  Oberly   turned  to  the  organization's   third  major                                                                    
concern. He  referred to a March  25, 2010 memo sent  to the                                                                    
co-chair's office  from the  Alaska Innocence  Project (copy                                                                    
on file).  He directed attention to  page 9, lines 25  to 30                                                                    
of HB  316. He disagreed  with Mr. Steiner's  testimony that                                                                    
the language could  be interpreted in a way  that worked. He                                                                    
believed the  language would  put a  judge in  the untenable                                                                    
position  of trying  to guess  the outcome.  He referred  to                                                                    
language that he  had sent that was taken  from other states                                                                    
with better language. The concept  was that a judge making a                                                                    
determination  would  assume  that   the  results  would  be                                                                    
favorable  to  the  claimant  (the   standards  set  in  the                                                                    
statute, such  as a reasonable  probability that  they would                                                                    
not have  been prosecuted or convicted).  The language would                                                                    
be  clearer and  has  been shown  in other  states  to be  a                                                                    
workable standard.                                                                                                              
Mr. Oberly concluded that both  nationally and locally there                                                                    
was not  a threat  of many  cases if the  right is  given to                                                                    
some  people  to  show  innocence through  the  use  of  DNA                                                                    
testing.  None   of  the  states   with  the   statute  have                                                                    
experienced a  "floodgate opening" of cases.  He agreed with                                                                    
Mr. Bundy that the flood  would have happened in Alaska when                                                                    
the federal  court ruled that everyone  has a constitutional                                                                    
right to have their DNA tested; that did not happen.                                                                            
Representative  Gara  referenced  the language  on  page  9,                                                                    
lines  25 through  30, and  queried language  used by  other                                                                    
states. Mr.  Oberly referred  to language  he had  sent from                                                                    
the  Kentucky  statute.  He had  gone  through  every  post-                                                                    
conviction  DNA testing  statute in  the country;  18 states                                                                    
listed have  language taking out  lines 25 through  31 (page                                                                    
9)  and lines  1  and 2  (page 10)  and  replacing it  with:                                                                    
"claimant  must show  a reasonable  probability exists  that                                                                    
the petitioner  would not have been  prosecuted or convicted                                                                    
if  exculpatory  results  had   been  obtained  through  DNA                                                                    
testing." He believed  the language had been  working in the                                                                    
states listed.                                                                                                                  
2:28:01 PM                                                                                                                    
Representative Gara encouraged resolution of the language.                                                                      
JEFFREY   MITTMAN,   EXECUTIVE  DIRECTOR,   AMERICAN   CIVIL                                                                    
LIBERTIES UNION-ALASKA (via  teleconference), testified that                                                                    
he  agreed  with  comments  by  Mr.  Oberly  of  the  Alaska                                                                    
Innocence  Project.   He  stated  that   for  constitutional                                                                    
reasons, it is  important that defendants have  the right to                                                                    
appropriately  defend  themselves.  The  concerns  of  ACLU-                                                                    
Alaska are  also that  there are  improper obstacles  in the                                                                    
bill as  currently drafted; they  did not believe  costs for                                                                    
retrieval of  samples, improper presumptions  of timeliness,                                                                    
and  issues as  to whether  or not  tactical decisions  were                                                                    
made at  trial should  be obstacles  to an  individual being                                                                    
able to prove innocence.                                                                                                        
Mr.  Mittman  spoke  in  support  of  including  the  Alaska                                                                    
Innocence Project on the task  force that would be formed by                                                                    
the legislation.                                                                                                                
ANNE CARPENETI,  ASSISTANT ATTORNEY GENERAL,  LEGAL SERVICES                                                                    
SECTION,  CRIMINAL DIVISION,  DEPARTMENT  OF LAW,  suggested                                                                    
looking at the big picture.  She informed the committee that                                                                    
DNA  testing is  a new  procedure  used for  the purpose  of                                                                    
establishing identity. She stated that  wanted to use HB 316                                                                    
to balance allowing an innocent  person bringing a claim for                                                                    
post-conviction  DNA testing  against  a person  who is  not                                                                    
innocent  bringing  a  cause  of  action  because  there  is                                                                    
nothing left to do in  their case. She assured the committee                                                                    
that guilty people would make claims for DNA testing.                                                                           
Ms. Carpeneti noted that the  department had worked with the                                                                    
Public Defender  Office, the Office of  Public Advocacy, and                                                                    
the   Alaska   Innocence   Project,  and   had   made   many                                                                    
2:33:09 PM                                                                                                                    
Ms.  Carpeneti  addressed  the   issue  of  timeliness.  She                                                                    
reported that HB 316 did  not have a statute of limitations,                                                                    
which is  a date beyond  which a  claim cannot be  made. She                                                                    
described timeliness  as a  presumption to  encourage people                                                                    
to bring a claim as early  as possible. She did not think an                                                                    
innocent person  should spend any  time in jail if  they can                                                                    
bring  an  application   for  post-conviction  testing.  She                                                                    
stressed  that a  person bringing  an application  would not                                                                    
get  an  automatic release  from  jail  if the  testing  was                                                                    
awarded. The  remedy may  be a new  trial; the  victim would                                                                    
have to go  through the trial again, and  the whole criminal                                                                    
justice  system  would  not  work as  well  because  of  the                                                                    
passage of time.  She defended the standard  of expecting an                                                                    
early claim  and pointed out  that for any good  reason, the                                                                    
bill would  allow the claim  to be brought after  the three-                                                                    
year  period. She  acknowledged that  the bar  was low,  but                                                                    
argued that there was good reason.                                                                                              
Representative   Gara   asserted   that  there   would   not                                                                    
automatically be  a trial.  There would only  be a  trial if                                                                    
the  DNA evidence  requested showed  what  was claimed.  Ms.                                                                    
Carpeneti  agreed.  She  emphasized  the  need  to  get  the                                                                    
evidence and make  application as soon as  possible, so that                                                                    
whatever  remedy was  decided (including  immediate release)                                                                    
could  be applied.  She underlined  that  the provision  was                                                                    
just  a presumption  that  could be  overcome  for any  good                                                                    
Representative Gara  argued that  a standard  requiring good                                                                    
cause for not bringing the  request earlier could go against                                                                    
innocent people.  He questioned why someone  could be denied                                                                    
for waiting.  Ms. Carpeneti replied that  other people would                                                                    
be affected  by the claim.  She stressed that  guilty people                                                                    
would bring  claims; the idea was  to bring a claim  as soon                                                                    
as the  person knows  about it. The  person in  the scenario                                                                    
described would have good cause.                                                                                                
2:38:16 PM                                                                                                                    
Ms.  Carpeneti addressed  concerns regarding  the concession                                                                    
of guilt. She  noted that the House  Judiciary Committee had                                                                    
specified that the  entry of a plea of guilty  or no contest                                                                    
at the trial level should  not be considered an admission or                                                                    
concession of  guilt. The bill  would provide that  a person                                                                    
admitting  or  conceding  guilt in  an  official  proceeding                                                                    
would  be  barred  from bringing  the  application  for  DNA                                                                    
testing. She  stressed that the  provision did not  apply to                                                                    
confessions to police or interrogators  or to a plea, but to                                                                    
admissions made in official  proceedings, defined by statute                                                                    
as proceedings in  front of the legislature or  a court. She                                                                    
suggested tightening the  language by stipulating admissions                                                                    
or confessions  made under oath  at an  official proceeding.                                                                    
She  believed that  at a  certain point,  people have  to be                                                                    
made   responsible  for   things   they   say  in   official                                                                    
proceedings. She believed Mr.  Osborne had conceded guilt to                                                                    
the parole board; she opined  that allowing a person in that                                                                    
situation to  proceed with application would  make a mockery                                                                    
of the whole parole system.                                                                                                     
Representative  Kelly queried  the cost  to a  guilty person                                                                    
making  the request  and abusing  the system.  Ms. Carpeneti                                                                    
replied that the bill would  require an applicant to file an                                                                    
affidavit statement  under oath that  he or she  is innocent                                                                    
of the convicted crime.                                                                                                         
Representative Kelly  asked whether the state  would have to                                                                    
pay for  the proceedings. Ms. Carpeneti  responded that most                                                                    
people in  the circumstance  described would  be represented                                                                    
by the  Public Defender  Agency; the  vast majority  will be                                                                    
public  lawyers. The  bill provides  that a  person who  can                                                                    
afford  to pay  for  gathering the  evidence  would pay  for                                                                    
that, but the costs are generally negligible.                                                                                   
Representative Kelly expressed concerns.                                                                                        
2:43:05 PM                                                                                                                    
Representative Gara  agreed that it  should not be  free for                                                                    
someone to abuse the system, but  he did not want to prevent                                                                    
innocent people  from getting evidence  because of  that. He                                                                    
suggested   penalizing   people    who   falsely   file   an                                                                    
application;  the problem  is that  the  person is  probably                                                                    
already in  jail for life.  Ms. Carpeneti agreed;  a perjury                                                                    
prosecution  for someone  in prison  for life  would not  be                                                                    
Ms. Carpeneti  referred to  the test  or standards  found on                                                                    
page  9,  lines  25  through   30.  She  reported  that  the                                                                    
standards were taken  from federal law. In  the Osborne case                                                                    
argument  before the  Supreme Court,  the Innocence  Project                                                                    
conceded that  the federal  law is  the gold  standard which                                                                    
states  should  aspire  to   in  passing  state  legislation                                                                    
addressing  post-conviction DNA  testing. Other  states such                                                                    
as  Kentucky  have  different tests.  She  stated  that  the                                                                    
language  on  page 9,  lines  25  through  30 means  that  a                                                                    
reasonable probability of new  evidence that could establish                                                                    
innocence would be considered.                                                                                                  
Ms.  Carpeneti   differentiated  between   speculation  that                                                                    
courts do every  day and Mr. Oberly's  suggestion that other                                                                    
states  have better  laws. She  maintained that  determining                                                                    
whether  a person  would have  been prosecuted  or convicted                                                                    
was also a  speculation. She stated that  the department had                                                                    
chosen the  test in HB 316  because it is a  better test and                                                                    
follows the federal test.                                                                                                       
Ms.    Carpeneti   responded    to   concerns    about   the                                                                    
impracticality of  the evidence retention provisions  in the                                                                    
bill.  She stated  that the  provisions would  represent new                                                                    
responsibility  for  workers  in  Alaska,  including  taking                                                                    
samples out of  big pieces of evidence. She  asserted that a                                                                    
small police  department does not  have space  to adequately                                                                    
save a car,  for example. Smaller communities  would need to                                                                    
adopt  written procedures  in  order  to correctly  preserve                                                                    
samples of evidence.                                                                                                            
2:48:55 PM                                                                                                                    
Representative Fairclough  asked whether  there could  be an                                                                    
alternative approach  related to  property being  taken away                                                                    
from  a person  when  doing so  would  create hardship.  Ms.                                                                    
Carpeneti   referred   to   legislation   requiring   police                                                                    
departments  to  notify  parties  about  property  they  are                                                                    
holding at  the request of  the owners of the  property. She                                                                    
thought  it  made  sense to  give  police  departments  some                                                                    
ability to  apply to  the parties  involved. She  added that                                                                    
the  provision requires  personal notification,  not just  a                                                                    
letter, and allows  the return of the evidence  if it cannot                                                                    
be stored.                                                                                                                      
Ms. Carpeneti agreed  with Mr. Steiner that  the bill should                                                                    
say  "attorneys"  rather than  "attorney"  so  that all  the                                                                    
attorneys that represented a person would be notified.                                                                          
Representative  Fairclough relayed  a story  about a  person                                                                    
who had  property in  the form  of a  vehicle taken  away as                                                                    
evidence  for  a very  long  time.  The  person had  to  buy                                                                    
another  vehicle  that they  could  not  afford. She  wanted                                                                    
hardship to be considered.                                                                                                      
Ms. Carpeneti  addressed comments about  tactical decisions,                                                                    
stating  that the  bill originally  provided  that a  person                                                                    
could not  obtain an order  for post-conviction  DNA testing                                                                    
if an  attorney had  made a tactical  decision not  to test;                                                                    
the House Judiciary Committee had removed the requirement.                                                                      
Ms.  Carpeneti  agreed that  lawyers  are  not perfect,  but                                                                    
asserted  that there  were  other  means of  post-conviction                                                                    
relief  available for  a claim  of ineffective  counsel. She                                                                    
pointed  out that  Alaska's laws  allow attorneys  at public                                                                    
expense to present an ineffective defense claim.                                                                                
Representative  Kelly asked  whether  the  measure would  be                                                                    
2:53:19 PM                                                                                                                    
RICHARD   SVOBODNY,   DEPUTY  ATTORNEY   GENERAL,   CRIMINAL                                                                    
DIVISION,  DEPARTMENT OF  LAW, responded  that he  had hoped                                                                    
with the  bill to get to  a point where either  the state or                                                                    
the  defense  would routinely  ask  for  DNA testing  before                                                                    
trial. He thought that removing  the tactical decision issue                                                                    
would  weaken  the  position  because   there  would  be  no                                                                    
incentive;  there is  an incentive  for not  asking for  the                                                                    
testing.  He  did not  know  the  timeline; the  faster  and                                                                    
sooner DNA  can be done,  the sooner  one side or  the other                                                                    
would  ask before  trial. He  could not  speculate how  long                                                                    
that would take.                                                                                                                
Representative   Kelly  referred   to  previous   discussion                                                                    
regarding a  goal. He asked  whether all questions  had been                                                                    
considered and  the department was  holding the  course. Ms.                                                                    
Carpeneti provided  the example of timeliness.  The original                                                                    
bill had two provisions  regarding timeliness; it would have                                                                    
been presumed  timely if brought within  three years, except                                                                    
if the applicant  was incompetent at a certain  stage of the                                                                    
proceedings, or  for good cause.  She noted that  Mr. Oberly                                                                    
had  objected  to the  incompetence  and  the order  because                                                                    
having  the good  cause  following  competence inferred  too                                                                    
high a bar.  The department took the provision  out and said                                                                    
instead that  any good cause  could satisfy  the presumption                                                                    
that the request is untimely after three years.                                                                                 
Representative  Kelly  asked   whether  the  department  had                                                                    
compromised where  it wished to  and was satisfied  with the                                                                    
bill. Ms. Carpeneti responded that  she and Mr. Svobodny had                                                                    
agreed [with  Mr. Steiner]  that page 9,  lines 5  through 6                                                                    
(regarding evidence  sought being  part of  an investigation                                                                    
or prosecution)  could be  eliminated because  the provision                                                                    
was covered in  the chain of custody. They  also agreed that                                                                    
all attorneys  that represented a person  should be notified                                                                    
(page 4,  line 11). They  also agreed  that page 9,  line 23                                                                    
should read  "if the applicant  was convicted after  a trial                                                                    
the identity of the perpetrator was disputed."                                                                                  
Ms. Carpeneti stated that aside  from the issues listed, the                                                                    
department thought the bill was fair.                                                                                           
2:58:22 PM                                                                                                                    
Vice-Chair Thomas led a  discussion clarifying the locations                                                                    
of the recommended changes in the legislation.                                                                                  
Representative  Doogan   asked  what  percentage   of  cases                                                                    
involved DNA that could be tested.                                                                                              
ORIN  DYM,   MANAGER,  FORENSIC  LABORATORY,   ALASKA  CRIME                                                                    
LABORATORY,  DEPARTMENT  OF  PUBLIC SAFETY,  responded  that                                                                    
probably  every case  has biological  evidence, although  it                                                                    
may not be detected or the information obtained useful.                                                                         
3:03:12 PM                                                                                                                    
Representative Doogan  asked what percentage of  cases would                                                                    
have evidence  that was important  to the case and  would be                                                                    
affected by  HB 316. Mr.  Svobodny responded that  given the                                                                    
the  most  liberal  application of  the  legislation,  every                                                                    
possible  piece  of evidence  could  apply;  any DNA  tested                                                                    
could result in establishing innocence.                                                                                         
Mr. Svobodny  recalled that the  Innocence Project  has said                                                                    
that 250  people have been  exonerated in the past  20 years                                                                    
throughout the country.                                                                                                         
Representative  Doogan  wanted  to  know the  costs  of  the                                                                    
legislation for the bill as  it stood before the changes and                                                                    
the bill  after the proposed changes.  Mr. Svobodny answered                                                                    
that he  could not give a  number, but he could  say that 46                                                                    
states  and the  federal  government have  gone through  the                                                                    
same  process; every  legislature has  opted for  a balance.                                                                    
For  example:  One  state only  allows  post-conviction  DNA                                                                    
testing in  capital (death penalty  homicide) cases  and the                                                                    
federal  government (or  California) limits  the testing  to                                                                    
felonies  where  the  person   is  incarcerated  in  another                                                                    
jurisdiction or  still under the  supervision of  the courts                                                                    
by being on probation.                                                                                                          
Mr.  Svobodny continued  that currently,  since Alaska  does                                                                    
not  have statutes  on the  matter,  the state  is open  [to                                                                    
claims] on cases ranging from  minor consuming to homicides.                                                                    
The bill would  reduce the universe affected  down to crimes                                                                    
against people. He reported that he  had had a case of minor                                                                    
consuming where  the jury wanted  to know where the  DNA was                                                                    
from  the beer  cans the  kid had  used. He  emphasized that                                                                    
without  legislation,  the  range  of cases  could  be  very                                                                    
Representative  Doogan summarized  that currently  the state                                                                    
has a large universe of cases  that the issue could apply to                                                                    
and that the department was  trying to limit the universe by                                                                    
stipulating the  kinds of cases post-conviction  DNA testing                                                                    
would  apply to,  how  long  [after conviction]  application                                                                    
could be  made, and  who would pay.  He stated  concerns. He                                                                    
thought the problem was that  some of the procedural matters                                                                    
proposed  in the  bill would  restrict people  who might  be                                                                    
innocence from  proving the  fact. He  asked how  to prevent                                                                    
restrictions from penalizing innocent people.                                                                                   
3:08:22 PM                                                                                                                    
Mr. Svobodny replied that currently  the state does not have                                                                    
a procedural  process that the legislature  has reviewed for                                                                    
the courts. In  one respect, to do nothing would  be to keep                                                                    
the  system wide  open. He  agreed  that listing  procedural                                                                    
requirements could restrict the  ability of people to apply,                                                                    
but he  thought the  proposal in HB  316 represented  a fair                                                                    
balance.  He emphasized  that legislators  create perimeters                                                                    
in every piece of legislation.                                                                                                  
Representative Doogan argued that  there were few tests that                                                                    
provided scientifically  accurate results like  DNA testing.                                                                    
He did  not think the state  should put barriers in  the way                                                                    
of  such tests.  He believed  much of  the testimony  on the                                                                    
legislation was related to ways  to write the law to prevent                                                                    
barriers. He expressed frustration.                                                                                             
Mr. Svobodny pointed  out that prosecutors want  to do their                                                                    
job  and  convict  guilty people  of  crimes,  not  innocent                                                                    
people.  He believed  convicting  innocent  people of  crime                                                                    
resulted   in  three   tragedies:  first,   to  the   person                                                                    
convicted; second, to the victim;  and third, to society, as                                                                    
the guilty  person would still  be at large. He  agreed that                                                                    
the  department was  suggesting  that procedures  be put  in                                                                    
place  to make  the system  work in  balance. He  argued the                                                                    
system would  not work if  anyone who asked could  get post-                                                                    
conviction  DNA  testing  for  any  crime,  including  drunk                                                                    
Mr. Svobodny  stressed that context  is everything in  a DNA                                                                    
case;  the fact  that there  was a  murder in  a room  and a                                                                    
person's DNA  was found in the  same room does not  mean the                                                                    
person was the murderer.                                                                                                        
3:12:34 PM                                                                                                                    
Representative Gara believed the  most important part of the                                                                    
bill was on  page 9, line 10, regarding having  to show that                                                                    
the DNA  evidence is meaningful  and could  prove innocence;                                                                    
the problem  was roughly 15  other roadblocks to  go through                                                                    
before  getting the  right to  do that.  He wanted  language                                                                    
that  worked  to  show  innocence  without  a  person  going                                                                    
through all the  "hoops." He was offended by  talk about the                                                                    
victim;  he  did  not believe  any  victim  wanted  innocent                                                                    
people in jail.                                                                                                                 
Ms.  Carpeneti  responded  that   many  of  the  hoops  were                                                                    
procedural, such as  filing papers. She thought  it did make                                                                    
sense  to require  a  person to  file  an affidavit  stating                                                                    
their innocence. She  argued that a person  in the situation                                                                    
had had  many opportunities while going  through the process                                                                    
of the  trial, and appeal,  and beyond. She  maintained that                                                                    
there  are many  protections in  Alaska law  to make  sure a                                                                    
person  is  convicted of  the  right  crime. She  asked  why                                                                    
society should spend  resources if a person  was not willing                                                                    
to  swear  that  they  were   innocent.  She  detailed  that                                                                    
paragraph 4 was removed, and  paragraph 5 was changed by the                                                                    
House  Judiciary  Committee, so  there  were  not a  lot  of                                                                    
standards. She defended the other standards as reasonable.                                                                      
3:17:35 PM                                                                                                                    
Representative Gara stated that  he would work on amendments                                                                    
because  he felt  some of  the standards  were unreasonable.                                                                    
For  example  (page  9),  he   protested  the  need  for  an                                                                    
appropriate  chain of  custody for  evidence that  was valid                                                                    
and  had not  been  altered or  contaminated. Ms.  Carpeneti                                                                    
responded that  a chain of  custody evidence  requirement is                                                                    
necessary because  evidence unconnected  to the  crime could                                                                    
be  brought  in. She  thought  the  word "ensure"  could  be                                                                    
changed  to  "show"  to  make it  less  difficult,  but  she                                                                    
stressed that there  had to be some way  to demonstrate that                                                                    
evidence  came from  the crime  and was  preserved in  a way                                                                    
that made it relevant.                                                                                                          
Representative Gara  disagreed. New DNA evidence  could show                                                                    
up that could prove innocence,  but could be made irrelevant                                                                    
by a bad chain of  evidence; the evidence itself would still                                                                    
be good. Ms.  Carpeneti responded that there  would be chain                                                                    
of custody if there were  testimony showing how the evidence                                                                    
was obtained.                                                                                                                   
Representative Gara asked  whether there was a  way to write                                                                    
the  "reasonable  probability"  section (page  9,  line  25)                                                                    
better. Ms.  Carpeneti responded that she  would think about                                                                    
HB  316  was  HEARD  and   HELD  in  Committee  for  further                                                                    
3:21:06 PM                                                                                                                    
The meeting was adjourned at 3:21 PM.                                                                                           

Document Name Date/Time Subjects
HB 316
HB 316 Gov.Trasmittal Letter.pdf HFIN 3/31/2010 1:30:00 PM
HB 316
HB 316 AK Innocence Project ELETTER.doc HFIN 3/31/2010 1:30:00 PM
HB 316
HB 316 Sectional.pdf HFIN 3/31/2010 1:30:00 PM
HB 316
HB 316 Amendments (5) Gara.pdf HFIN 3/31/2010 1:30:00 PM
HB 316
HB 316 Letter.pdf HFIN 3/31/2010 1:30:00 PM
HB 316