Legislature(2009 - 2010)HOUSE FINANCE 519
03/25/2010 09:00 AM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB316 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 316 | TELECONFERENCED | |
HOUSE FINANCE COMMITTEE
March 25, 2010
9:23 a.m.
9:23:06 AM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 9:23 a.m.
MEMBERS PRESENT
Representative Mike Hawker, Co-Chair
Representative Bill Stoltze, Co-Chair
Representative Allan Austerman
Representative Mike Doogan
Representative Anna Fairclough
Representative Neal Foster
Representative Les Gara
Representative Reggie Joule
Representative Mike Kelly
Representative Woodie Salmon
MEMBERS ABSENT
Representative Bill Thomas Jr., Vice-Chair
ALSO PRESENT
Dan Sullivan, Commissioner, Department of Law; Richard
Svobodny, Deputy Attorney General, Criminal Division,
Department of Law; Anne Carpeneti, Assistant Attorney
General, Legal Services Section-Juneau, Criminal Division,
Department of Law
PRESENT VIA TELECONFERENCE
Bill Oberly, Executive Director, Alaska Innocence Project;
Denise Morris, Alaska Native Justice Center
SUMMARY
HB 316 POST-CONVICTION DNA TESTING; EVIDENCE
HB 316 was HEARD and HELD in Committee for
further consideration.
9:23:10 AM
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."
9:23:24 AM
DAN SULLIVAN, COMMISSIONER, DEPARTMENT OF LAW presented the
overview of the bill. The bill included four main elements:
new standards for the preservation of evidence by all state
law enforcement agencies, new procedures for post-
conviction DNA testing, amendments to the DNA
identification registration system to comply with federal
procedures, and the creation of a task force to adopt
standards for evidence preservation. He remarked that the
bill fits into the broader context of reducing sexual
assault and domestic violence in the state. The governor
had a 10 year plan to help address and pose no harm to any
citizen. This plan had five key strategic objectives: to
break the cycle of abuse using a comprehensive public
education and prevention campaign, to promote a culture of
respect and awareness; to deter, segregate, and treat
offenders so they pose no risk of harm to women and
children; to establish a law enforcement presence in every
community that desires one; to increase victim services, so
more have a safe sanctuary; and to coordinate and
streamline efforts among all stakeholders to effectively
combat violence against women and children. He believed the
governor's plan, though imperfect, was a good foundation
with many different perspectives. He spoke of leaders on
this issue, specifically Representative Joule and
Representative Fairclough who worked hard to make
improvements to this plan. He believed the legislative plan
was working. The legislature was already addressing
improvements to the governor's plan, and felt confident
that the broader strategy of tackling domestic violence and
sexual assault was poised to be stronger. He also remarked
that he had presented this plan to senior officials in
Washington at the Department of Justice, including the
attorney general and the Vice President of the United
States. The presentation in Washington was a part of the
plan to raise awareness of this cultural issue. The Vice
President gave a personal commitment to help Alaska address
this challenge. On March 31, 2010 marches all over the
state would focus on the issue of violence against women
and children.
9:30:01 AM
He commented that there were a number of bills regarding
the governor's plan: one pertained to sexual assault and
domestic violence issues; one pertained to bail reform; and
HB 316, which pertained to post-conviction DNA testing. He
post-conviction DNA testing issues were critical components
to the broader comprehensive strategy. He maintained that
these were grass-roots bills, in that they were developed
from looking at ways to make Alaskans safer. Prosecutors
should be given the tools to put offenders behind bars, and
also be sure they have prosecuted the right offender. The
state of Alaska won a US Supreme Court case: the Osborne
case. This case was argued by the Alaska DOL, and they
reversed the ninth circuit. The Supreme Court agreed that
post conviction issues are better left to the states
instead of the federal courts. The bill would set out
procedures and standards on how a convicted felon can apply
for DNA testing. It would also set up procedures for the
preservation of DNA evidence, which would help the cold
case unit crack more cases. While it is known that
criminals and crime should be dealt with seriously, and
victims should be given as much protection from dangerous
criminals as allowed under the law, it is also believed
that procedures should be in place to enhance the
opportunity for fair trials. He addressed the four elements
of the bill: it set new standards for the preservation of
evidence by all law enforcement agencies, evidence must be
preserved until time of appeal or post-conviction relief
has expired, biological material must be preserved until
the person is unconditionally discharged of the crime, and
implement new procedures for post-conviction DNA testing.
The bill also had amendments to the DNA identification
registration system, to comply with federal procedure.
Finally, the bill would create a task force to adopt
standards for evidence preservation.
9:36:38 AM
Representative Fairclough queried the impact on the crime
lab in Anchorage, regarding the governor's proposed plan.
9:37:20 AM
Commissioner Sullivan mentioned there were four bills that
focus on finance and aspects of the crime lab, and without
all four it will limit what is trying to be achieved. He
commented that about 50 percent of the cases that the crime
lab examines relate to sexual assault and domestic
violence.
9:38:30 AM
RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, added that with the passing of
this bill, he hoped that all DNA testing would occur before
a trial. He noted that the work load in the crime lab will
increase, but would presumably take place before the trial.
This may make DNA evidence retention less problematic. The
bill does include provisions for evidence retention, which
would keep the burden of evidence storage at a minimum. He
added that the task force would deal with evidence
retention issues, for example: how to return property to
victims.
Representative Fairclough wondered how quickly the
collected DNA was entered into the national DNA database
(CODAS). She also queried the protocol for entering DNA
into CODAS.
Mr. Svobodny explained that he believes it took about three
or four days for DNA to enter CODAS, but remarked that the
Alaska Department of Public Safety (DPS) could give a more
accurate answer. He continued that the DNA goes directly
into CODAS when there is no suspect, in order to compare
DNA to other cases and felons. He stated that there are
several different databases that are used to determine a
possible subject. He specified that there is no wait until
someone is convicted, in order for their DNA to get entered
into the system. He furthered that there was a portion of
the bill that would require removal of DNA from the
database, if that person had been exonerated.
9:42:25 AM
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
mentioned that the drafters of the bill were two lawyers
from the Office of Special Prosecutions and Appeals (OSPA)
who represented Alaska in the Osborne case at the Supreme
Court.
Ms. Carpeneti explained that the bill was divided into two
major parts: evidence retention, and post-conviction DNA
testing. The bill specified two different types of
evidence: physical and biological. The bill would require
state law enforcement agencies to retain physical evidence
for the entire litigation period in cases involving
homicides, first degree sexual assault, and first degree
sexual abuse. It would recognize that law enforcement
agencies are different sizes, remarking that a rural police
department might have less storage capacity than a large
urban center. The bill required that each law enforcement
agency establish written protocols and standards for how
cuttings and samples would be taken from bulkier pieces of
physical evidence. She continued that biological evidence
is defined as the contents of a rape kit: human bodily
material; slides and swabs from the human bodily material;
and swabs or cuttings from evidence that contained the
biological material. The biological material must be kept
for the period of time that a sex offender is required to
register for the sex offence; and for homicides, it is kept
until the person is unconditionally released from that
crime. The bill would adopt a procedure to dispose of or
return evidence to the owner. If law enforcement agencies
do not abide by the rules and procedures, there are
remedies provided according to Supreme Court rulings. As
legislation has passed, the task force related to the bill
had expanded to include representatives of evidence
custodian agencies. The duty of the task force was to
recommend standards and protocols for evidence collection,
storage, organization, and return to owner.
9:49:32 AM
Representative Gara requested a comparison between the
current evidence retention standards, and the proposed
legislation. Mr. Svobodny responded that there were
currently no state-wide standards pertaining to evidence
retention.
Representative Gara queried the length of time evidence is
kept post-conviction. Ms. Carpeneti replied that the bill
would allow traditional physical evidence to be returned to
the owner upon incarceration, and biological evidence would
be kept for the period of time that the person is
incarcerated, fulfilled probation or parole, and the length
of time they are registered as a sex offender.
Representative Gara asked if there would be a situation
where retention of evidence is unnecessary, as to
accommodate a victim's needs. Ms. Carpeneti replied that
the legislation would provide a procedure where the police
would ask the parties involved if they object to the
returning of evidence.
Representative Gara remarked that the procedures are too
rigid for the convicted persons, who are innocent, to
obtain DNA testing.
9:53:06 AM
Representative Fairclough asked why a Sexual Assault Nurse
Examiner (SANE) was not a member of the task force. She
spoke in favor of the Alaska Native Justice Center
inclusion in the task force, because it is a good
representation of rural voices. Ms. Carpeneti replied that
she did not believe a SANE was ever considered. She pointed
out that they had tried to keep the task force small,
because the vision of the task force was originally based
on basic storage and retention procedures. The members of
the task force are mostly people who professionally collect
and store evidence. Commissioner Sullivan added that the
DOL would have no objection to the addition of a SANE to
the task force. Representative Fairclough reiterated the
importance of a SANE on the task force.
9:55:54 AM
Co-Chair Stoltze added that the Alaska Native Justice
Center has a broader mission than rural Alaska, although a
chunk of victimization is in rural Alaska.
9:56:07 AM
Representative Austerman queried the state's current
evidence retention standard. Mr. Svobodny stated that each
individual police department set its own standards. He
related that one police department might require all
photographs to be maintained, while another department
might require all specifically clear photographs be
maintained. He stated that there are federal standards
regarding DNA collection, but the task force would be set
up to deal with all evidence.
Representative Austerman wondered why the bill states that
each police department would develop their own standards,
when the intent is to create a state standard. Mr. Svobodny
responded that the local police departments have limits to
what they can do. The bill would not establish state
standards. He reiterated that there are broad differences
between departments across the state, but the task force
would impose a requirement on municipalities to
specifically retain biological evidence.
9:59:41 AM
Representative Austerman wondered if the task force would
present their findings to the governor, and if so, would
DOL write a new bill with their standards written in
statute. Mr. Svobodny replied that the task force may or
may not present their findings to the governor. He
furthered that if the task force was unsuccessful,
standards may need to be written in statute.
10:00:37 AM
Ms. Carpeneti continued with post-conviction DNA testing
standards. She believed that the standards outlined in the
bill would be short-lived, in the hopes that DNA testing
would occur for all cases where DNA evidence was available
and relevant. She remarked that sophisticated DNA testing
already existed in Alaska. In cases where DNA testing did
not occur, the bill attempts to attain a balance. The two
sides of the balance address helping those who were
wrongly-convicted and discourage those who were justly
convicted to challenge a fair conviction. The bill
specified findings that a court must make before the judge
can order post-conviction DNA testing: 1) The applicant
must be convicted of a felony for a crime against a person
under Alaska law; 2) The applicant must submit an affidavit
swearing that he/she is innocent of the crime they were
convicted of, and any lesser included offenses, attempts,
or aiding/abetting; 3) The applicant must not have conceded
or admitted guilt in an official preceding. She remarked
that a guilty or nolo contendere plea at the trial level
should not be considered concession or admission of guilt;
4) The applicant must submit an affidavit describing
previous efforts to obtain DNA testing; 5) The evidence
must be obtained as part of an investigation and
prosecution, and subject to a chain of custody to ensure
its reliability; 6) The applicant must seek reasonable
testing which is consistent with forensic practices that
employ scientifically sound methods; 7) The applicant must
propose a defense theory; 8) Lastly, the bill encourages
applicants to apply as soon as the applications are made
available.
10:07:17 AM
Co-Chair Stoltze appreciated the section of the bill that
would remove DNA from the database, if the person is found
innocent. He remarked that one of his constituents was very
concerned with that particular issue.
10:07:36 AM
Representative Foster requested an explanation of the
section of the bill regarding those that plead guilty in
preliminary hearings. Ms. Carpeneti explained that the bill
provides that a person who has admitted or conceded guilt
in an official preceding, which is defined in statute, may
not be granted post-conviction DNA testing. A guilty or
nolo contendere plea at the trial level is not considered
an admission or concession of guilt, for purposes of an
application for post-conviction DNA testing.
10:09:42 AM
Representative Gara urged the committee to consider the
perspective of the Alaska Innocence Project (AIP). He
pointed out that there was a memo in the bill packet from
the AIP, and hoped the organization would be a part of
future discussions regarding post-conviction DNA testing.
Co-Chair Stoltze agreed with Representative Gara.
Representative Gara commented that there are some
circumstances when an innocent person may admit guilt, and
the bill limits that person's ability to further prove
their innocence through post-conviction DNA testing. He
remarked that in parole hearings, convicts are often asked
if they concede to guilt. Many times the convict will
concede, in order to be granted parole early. Mr. Carpeneti
agreed that Representative Gara's concerns are valid, but
furthered that people need to be held accountable for what
they say under oath.
10:13:13 AM
BILL OBERLY, EXECUTIVE DIRECTOR, ALASKA INNOCENCE PROJECT
(via teleconference), testified that the current language
of the bill restricts access to post-conviction DNA
testing. He pointed out that there is a zero fiscal note
attached, because DOL did not anticipate many cases. He
suggested significant changes to the bill, specifically the
removal of the time restriction in the application process.
He assured the committee that no innocent person would wait
to make a request for testing. With the difficulty in
identifying cases and locating evidence, the practical
effect of the time limitation could prohibit most
applications. The AIP was concerned about restriction in
testing, if the person admitted guilt in an official
preceding. There should be no restriction on innocent
claims due to an admission of guilt, if it could be proved
that their innocent. He added that requiring someone to pay
for own DNA testing would greatly restrict the innocent. He
referred to the written testimony (copy on file), which
addressed a procedure that requires a judge to guess an
outcome of DNA testing before ordering it. The combined
effects of the current restrictions in the bill would
burden rural communities. He urged the committee to remove
the restrictive language in the bill.
10:19:25 AM
Representative Gara wondered if Mr. Oberly prefered the
current Senate version of the bill, because it does not
contain as much restrictive language. Mr. Overly stated
that SB110 specifically dealt with evidence preservation,
and does not deal with post-conviction DNA testing.
10:22:07 AM
Representative Gara queried the standards judges use in
order to grant DNA testing. Mr. Oberly explained the
standard in Alaska requires the judge to guess what DNA
testing would show before ordering the test. Most states
would allow for a test only if the evidence still exists.
Representative Gara requested exact language that other
states use regarding that issue of judges ordering DNA
testing. Mr. Oberly agreed to provide that information.
10:25:33 AM
DENISE MORRIS, ALASKA NATIVE JUSTICE CENTER (via
teleconference), expressed concern about the section of the
bill restricting DNA testing because of an admission of
guilt. She remarked that there may be a large number of
innocent individuals among the native community, who may
have admitted guilt. This would prevent them from applying
for post-conviction DNA testing. She recommended that
section of the bill be removed. She also suggested a
representative from AIP join the task force.
Co-Chair Stoltze stated that he understood the sensitivity
of the issues in the bill, and apologized that some people
would not get the chance to testify during the meeting.
HB 316 was HEARD and HELD in Committee for further
consideration.
ADJOURNMENT
The meeting was adjourned at 10:29 AM
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 316 AK Innocence Project ELETTER.doc |
HFIN 3/25/2010 9:00:00 AM |
HB 316 |
| HB 316 Sectional.pdf |
HFIN 3/25/2010 9:00:00 AM |
HB 316 |
| HB 316 Gov.Trasmittal Letter.pdf |
HFIN 3/25/2010 9:00:00 AM |
HB 316 |