04/10/2006 02:19 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| HB258 | |
| HB413 | |
| HB325 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 10, 2006
2:19 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 258
"An Act relating to aggravating factors at sentencing."
- MOVED CSHB 258(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 413
"An Act relating to the burning capability of cigarettes being
sold, offered for sale, or possessed for sale; and providing for
an effective date."
- MOVED CSHB 413(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 325
"An Act relating to post-conviction DNA testing; and amending
Rule 35.1, Alaska Rules of Criminal Procedure."
- MOVED CSHB 325(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 482
"An Act relating to harassment, intimidation, and bullying in
schools."
- BILL HEARING POSTPONED TO 4/12/06
HOUSE BILL NO. 424
"An Act relating to mortgage lenders and persons who engage in
activities relating to mortgage lending; and providing for an
effective date."
- BILL HEARING POSTPONED TO 4/18/06
PREVIOUS COMMITTEE ACTION
BILL: HB 258
SHORT TITLE: SEXUAL ASSAULT BY PERSON WITH HIV/AIDS
SPONSOR(S): REPRESENTATIVE(S) LYNN
04/06/05 (H) READ THE FIRST TIME - REFERRALS
04/06/05 (H) HES, JUD
02/23/06 (H) HES AT 3:00 PM CAPITOL 106
02/23/06 (H) <Bill Hearing Rescheduled to 2/28/06>
02/28/06 (H) HES AT 3:00 PM CAPITOL 106
02/28/06 (H) Scheduled But Not Heard
03/21/06 (H) HES AT 3:00 PM CAPITOL 106
03/21/06 (H) Moved CSHB 258(HES) Out of Committee
03/21/06 (H) MINUTE(HES)
03/24/06 (H) HES RPT CS(HES) 7DP
03/24/06 (H) DP: CISSNA, GATTO, GARDNER, KOHRING,
ANDERSON, SEATON, WILSON
04/10/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 413
SHORT TITLE: BURNING CAPABILITY OF CIGARETTES
SPONSOR(S): REPRESENTATIVE(S) JOULE
02/01/06 (H) READ THE FIRST TIME - REFERRALS
02/01/06 (H) STA, JUD, FIN
02/09/06 (H) STA AT 8:00 AM CAPITOL 106
02/09/06 (H) Moved CSHB 413(STA) Out of Committee
02/09/06 (H) MINUTE(STA)
02/13/06 (H) STA RPT CS(STA) 6DP
02/13/06 (H) DP: GARDNER, LYNN, ELKINS, RAMRAS,
GRUENBERG, GATTO
03/31/06 (H) JUD AT 1:00 PM CAPITOL 120
03/31/06 (H) Heard & Held
03/31/06 (H) MINUTE(JUD)
04/07/06 (H) JUD AT 1:00 PM CAPITOL 120
04/07/06 (H) Heard & Held
04/07/06 (H) MINUTE(JUD)
04/10/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 325
SHORT TITLE: POST-CONVICTION DNA TESTING
SPONSOR(S): REPRESENTATIVE(S) LEDOUX
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
03/22/06 (H) JUD AT 1:00 PM CAPITOL 120
03/22/06 (H) <Bill Hearing Postponed to 03/24/06>
03/24/06 (H) JUD AT 1:00 PM CAPITOL 120
03/24/06 (H) <Bill Hearing Postponed to 03/27/06>
03/27/06 (H) JUD AT 1:00 PM CAPITOL 120
03/27/06 (H) <Bill Hearing Postponed to 03/29/06>
03/29/06 (H) JUD AT 1:00 PM CAPITOL 120
03/29/06 (H) Scheduled But Not Heard
04/05/06 (H) JUD AT 1:00 PM CAPITOL 120
04/05/06 (H) Heard & Held; Assigned to Subcommittee
04/05/06 (H) MINUTE(JUD)
04/10/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 258.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 258, spoke in
support of the bill and responded to questions; during
discussion of HB 325, responded to questions and expressed
concern regarding certain language.
MICHAEL SICA, Staff
to Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 258, provided
comments and responded to questions on behalf of the sponsor,
Representative Lynn.
MIKAYLA SAITO, Intern
to Representative Reggie Joule
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments on behalf of the sponsor
of HB 413, Representative Joule.
REPRESENTATIVE REGGIE JOULE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 413.
KIMBERLY WALLACE, Staff
to Representative Gabrielle LeDoux
House Special Committee on Fisheries
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 325, answered
questions on behalf of the sponsor, Representative LeDoux.
REPRESENTATIVE GABRIELLE LeDOUX
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 325.
MARY ANNE HENRY, Director
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Expressed concerns with HB 325.
STEPHEN SALOOM, Policy Director
Innocence Project
New York, New York
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 325.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 2:19:46 PM. Representatives
McGuire, Wilson, Gara, Kott, and Coghill were present at the
call to order. Representatives Gruenberg and Anderson arrived
as the meeting was in progress.
HB 258 - SEXUAL ASSAULT BY PERSON WITH HIV/AIDS
2:19:57 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 258, "An Act relating to aggravating factors
at sentencing." [Before the committee was CSHB 258(HES).]
2:20:01 PM
REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor,
offered his understanding that HB 258 would make having human
immunodeficiency virus (HIV) or acquired immunodeficiency
syndrome (AIDS) when committing a rape or sexual assault an
aggravating factor at sentencing. Specifically, the perpetrator
would have to have been previously diagnosed as having or having
tested positive for HIV or AIDS. He remarked that how a
perpetrator comes to have HIV or AIDS is not the issue; instead
the issue is whether a convicted rapist or sexual predator
previously diagnosed with HIV or AIDS should be subject to an
aggravating factor at sentencing.
REPRESENTATIVE LYNN offered his understanding that HIV and AIDS
are incurable, potentially fatal, and primarily transmitted
through "sexual behavior," which can include rape and sexual
assault. In such cases, not only does a victim of rape and
sexual assault suffer the horrific consequences of the attack,
but he/she must also suffer the effects of a life-threatening
disease that could essentially be a delayed death sentence. It
is a sobering fact that some of those infected with HIV or AIDS
have shorter lives than some criminals condemned to a prison's
death row.
REPRESENTATIVE LYNN said that he has received tremendous support
for HB 258 from law enforcement officials and agencies providing
services to victims of sexual assault. He relayed that Susan
Sullivan - Executive Director, Victims for Justice, Inc. - wrote
in part, "adding months of terror, and possibly years of illness
and shortened life, to the horror of a rape, makes an attack by
an HIV-AIDS positive rapist a horrendous assault"; that Walt
Monegan - Chief of Police, Anchorage Police Department (APD) -
has described a rapist or sexual offender with HIV or AIDS as an
assailant with an insidious weapon that can be used to further
strike out against victims and the victims' loved ones; and that
Gerad Godfrey - Chair, Violent Crimes Compensation Board (VCCB)
- urges passage of HB 308 "as a sign of respect, compassion, and
understanding of the trauma experienced by victims of serious
sexual offenses."
REPRESENTATIVE LYNN mentioned that 24 states currently have some
type of law that specifically criminalizes exposure or
transmission of HIV, and offered his belief that it is long past
time that Alaska joins them, particularly given that Alaska has
the highest per capita rate of rape in the nation. In
conclusion, he characterized HB 258 is a proactive measure that
acknowledges the additional pain and suffering caused by rapists
and sexual assailants who expose their victims to a life
threatening disease.
REPRESENTATIVE LYNN in response to comments, offered his
understanding that the proposed sentencing aggravator would only
apply in cases of rape and sexual assault wherein the
perpetrator has been previously diagnosed with HIV or AIDS.
REPRESENTATIVE GARA pointed out, however, that the statutes
referred to in the bill - AS 11.41.410 through AS 11.41.455 -
also include felony crimes involving sexual contact through
clothing and consensual conduct between certain persons of
certain ages. He offered his belief that the sponsor doesn't
really want to have the proposed sentencing aggravator apply to
such crimes, and suggested that the sponsor's intent could still
be honored by adding a clause that says, "that creates the risk
of a transmission of HIV or AIDS"; by definition, then, the bill
would only address those crimes wherein [such transmission is
possible].
CHAIR McGUIRE noted that such language would not preclude the
bill from applying in situations involving consensual conduct
between [certain persons of certain ages] when the conduct
includes sexual penetration.
2:29:35 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that the DOL supports HB 258. She acknowledged that
Representative Gara is correct in that crimes wherein only
"touching" has occurred can rise to the level of felony conduct.
She pointed out, however, that it would still be up to the court
to decide whether applying an aggravator in a particular case
would be appropriate, and surmised that the court would not
apply such an aggravator in instances where there was no
exposure.
REPRESENTATIVE GARA suggested perhaps adding to page 1, line
[6], the words, "and the conduct creates the risk of
transmission of HIV or AIDS".
MS. CARPENETI suggested using the term, "exposure".
2:31:12 PM
MICHAEL SICA, Staff to Representative Bob Lynn, Alaska State
Legislature, sponsor, relayed on behalf of Representative Lynn
that part of the problem is that the additional pain and
suffering for victims begins with the exposure, because within
72 hours, and preferably within 24 hours, victims must subject
themselves to aggressive prophylactics for a 28-day period,
prophylactics that that can make them sick. Furthermore, it can
take up to 6 months to determine whether a victim has contracted
the disease.
CHAIR McGUIRE surmised, then, that Mr. Sica is speaking in favor
of using the term, "exposure".
MR. SICA concurred.
REPRESENTATIVE GARA said he agrees with the concept but is not
sure what the wording would look like for such a change. He
reiterated his concern that the bill, as currently written,
would apply in instances that involve sexual contact through
clothing.
MR. SICA noted that plenty of sexual assault crimes involving
sexual penetration are "plead down" to "non penetration"
offenses; in such cases, penetration has occurred and so has
exposure.
REPRESENTATIVE GARA offered his belief that even in such cases,
the aggravator would still apply because it would be based on
the underlying conduct.
MR. SICA argued that it would be up to the court to decide
whether such was the case; the language pertaining to sentencing
aggravators currently says in part, "The following factors shall
be considered by the sentencing court if proven in accordance
with this section, and may allow imposition of a sentence above
the presumptive range".
MS. CARPENETI, in response to a question, suggested perhaps
adding language that said, "a felony specified in these sections
which exposed the victim to ...".
REPRESENTATIVE GARA finished: "potential risk of AIDS or HIV
transmission".
MS. CARPENETI said, "Or to the exposure, ... because that's the
fear."
CHAIR McGUIRE suggested making the change conceptual, with the
concept being that there is the potential for exposure,
regardless of whether the victim actually contracts the disease.
REPRESENTATIVE GARA concurred.
MS. CARPENETI said the DOL would be happy to work with
Representative Gara and the sponsor on this issue.
2:34:44 PM
CHAIR McGUIRE said they would set HB 258 aside until later in
the meeting so that appropriate language could be developed.
REPRESENTATIVE GRUENBERG asked that consideration also be given
to possibly narrowing the title so that it specifically reflects
what the bill entails. He also asked whether the applicability
provision is even necessary.
MS. CARPENETI said that when she is drafting legislation, she
generally doesn't include applicability provisions, but the
DOL's editor adds them in. Having an applicability provision
doesn't hurt, she remarked, even though criminal laws that
increase one's potential punishment are always applied
prospectively.
REPRESENTATIVE GRUENBERG then pointed out that AS 11.41.452 -
Online enticement of a minor - and AS 11.41.455 - Unlawful
exploitation of a minor - are also referenced in HB 258 and are
both felony crimes, but don't require there to have been any
physical contact between the victim and the perpetrator; if such
contact did occur, he surmised, then the perpetrator would be
charged with a separate, higher crime. He suggested to [the
sponsor that he also] give consideration to possibly eliminating
those statutes from HB 258 as well.
MS. CARPENETI offered her belief that the forthcoming suggested
conceptual change will address that issue as well. She
indicated that it is simply common to reference AS 11.41.410 -
AS 11.41.455 when writing legislation pertaining to sexual
offenses. She said she agrees that it's unlikely that under AS
11.41.452 or AS 11.41.455 there would be physical contact
resulting in any exposure to HIV or AIDS.
REPRESENTATIVE GRUENBERG mentioned that he may propose an
amendment to eliminate the reference to AS 11.41.452 and AS
11.41.455. He then expressed the concern that a perpetrator may
have only been diagnosed as having HIV or AIDS but yet not
notified of that fact before he/she committed a crime for which
the proposed aggravator would apply. As currently written,
there is no requirement that the perpetrator knew he/she had
been diagnosed with HIV or AIDS. Therefore, he opined, there
should be some kind of knowledge or recklessness [standard]
included in the bill; without such being included, a
constitutional problem might arise.
2:39:37 PM
REPRESENTATIVE GARA offered his belief that with the forthcoming
conceptual change, the fact that a perpetrator was concerned
enough to even get tested for HIV or AIDS would be sufficient.
In response to a comment, he opined that application of the
proposed aggravator would be justified even if the perpetrator
doesn't yet know the results of that testing.
REPRESENTATIVE WILSON and CHAIR McGUIRE, in response to a
question, explained that one is not routinely tested for HIV or
AIDS; instead, a specific consent form for such testing is
required.
CHAIR McGUIRE indicated that [CSHB 258(HES)] would be set aside
brought back up later in the meeting.
HB 413 - BURNING CAPABILITY OF CIGARETTES
2:42:48 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 413, "An Act relating to the burning capability
of cigarettes being sold, offered for sale, or possessed for
sale; and providing for an effective date." [Before the
committee was the proposed committee substitute (CS) for HB 413,
Version 24-LS1495\F, Bannister, 4/5/06, which had been adopted
as the work draft on 4/7/06; also included in members' packets
was another proposed committee substitute (CS) for HB 413,
Version 24-LS1495\Y, Bannister, 4/10/06.]
CHAIR McGUIRE recalled that the Department of Revenue (DOR) had
expressed some concerns with Version F because it did not
include all of the DOR's recommendations, and offered her
understanding that the new proposed committee substitute (CS) in
members' packets does incorporate all of those recommendations.
2:43:41 PM
REPRESENTATIVE GARA made a motion to adopt the proposed
committee substitute (CS) for HB 413, Version 24-LS1495\Y,
Bannister, 4/10/06, as the work draft. There being no
objection, Version Y was before the committee.
2:44:03 PM
MIKAYLA SAITO, Intern to Representative Reggie Joule, Alaska
State Legislature, relayed on behalf of the sponsor,
Representative Joule, that the legislative findings and intent
section of Version Y updates the finding that nearly 3,000
injuries have resulted from fires caused by cigarettes, and that
Version Y corrects some grammatical errors and closes some
loopholes. Additionally, Version Y provides the DOR with the
ability to seize cigarettes that are not in compliance with this
proposed law. Page 6 now includes language specifying that the
markings approved for Alaska must be the same markings as those
used in and approved for the state of New York; this requirement
could smooth the way for the introduction of national
legislation, since states would already be using the same
markings.
MS. SAITO offered her understanding that Version Y also contains
language encouraging the concept that this issue should be
viewed as a national issue, and that the DOR has been provided
with the authority to promulgate or amend regulations regarding
seizure.
CHAIR McGUIRE noted that Ms. Saito is referencing the memorandum
dated 4/10/06 from Representative Joule.
REPRESENTATIVE GARA offered his understanding that the
substantial changes incorporated in Version Y expand the DOR's
authority so that it can enforce this new proposed law.
MS. SAITO concurred.
REPRESENTATIVE KOTT referred to page 1, line 14, and noted that
the language appears to include Canada as a state; furthermore,
there is no other reference to Canada in the remainder of the
findings and intent language section.
2:47:54 PM
REPRESENTATIVE KOTT made a motion to adopt Amendment 1, to
delete the reference to Canada from page 1, line 14. There
being no objection, Amendment 1 adopted.
REPRESENTATIVE ANDERSON said he appreciates the spirit of the
legislation, but noted that the tobacco industry has expressed
to him the concern that having to manufacture different types of
cigarettes for different states will be very expensive. He
remarked, however, that as a matter of public policy, the fire-
safety concerns addressed via HB 413 outweigh the tobacco
industry's concern regarding cost.
MS. SAITO, in response to a question, offered her understanding
that manufacturers will produce the same type of cigarettes for
Alaska that are being produced for New York, and that the
tobacco industry has told officials at the national level that
it is amenable to the type of change proposed by HB 413 in that
it wants to get similar national legislation passed. However,
the sponsor, she relayed, feels it is important to start the
process at the state level instead of waiting for national
legislation. She again offered her understanding that the type
of cigarettes that HB 413 requires for Alaska are already being
manufactured for other states.
REPRESENTATIVE GARA indicated that that information alleviates
his one concern.
CHAIR McGUIRE suggested that this requirement could serve as a
model for the federal government or other states.
REPRESENTATIVE KOTT asked whether there will be a restriction on
the number of packs of cigarettes a person can buy over the
Internet.
2:53:06 PM
REPRESENTATIVE REGGIE JOULE, Alaska State Legislature, sponsor,
offered his understanding that if the purchase of cigarettes
over the Internet is for private consumption, it would be
difficult to enforce what type of cigarettes are bought.
However, aspects of the bill do attempt to address situations in
which Internet purchases are made for the purpose of resale. He
suggested that as the concept embodied in HB 413 catches on
nationally, Internet sales will become less of an issue.
CHAIR McGUIRE asked whether manufactures will charge more money
for cigarettes with a reduced ignition capacity.
REPRESENTATIVE JOULE said no.
CHAIR McGUIRE surmised, then, that one wouldn't be able to save
money by purchasing non-compliant cigarettes over the Internet.
REPRESENTATIVE JOULE, in response to questions, said that fire-
safe cigarettes won't taste any different that non-compliant
cigarettes. No extra chemicals would be used; instead, there
will be thicker bands of paper at regular intervals along the
cigarette and it will be packed a little differently, and these
changes are what will help the cigarette extinguish itself if it
is not actively being smoked.
REPRESENTATIVE GARA noted that language beginning on page 2,
line 19, makes it illegal for someone to sell, offer to sell, or
possess for sale cigarettes in Alaska that don't meet the
requirements proposed via HB 413.
REPRESENTATIVE JOULE, in response to a question, indicated that
the bill provides for a transition period during which retailers
can sell any non-compliant cigarettes that they have bought
prior to the enactment of HB 413. He noted that the other
states that have enacted similar legislation have experienced
smooth transitions.
2:56:26 PM
REPRESENTATIVE ANDERSON remarked on the issue of non-compliant
cigarettes being brought into Alaska by tourists.
REPRESENTATIVE GARA pointed out that the bill only criminalizes
those who bring non-compliant cigarettes into the state with the
intent to sell them.
REPRESENTATIVE WILSON remarked on the fact that Alaska is number
one in the nation with regard to alcohol-related problems, and
on the tendency of some people to smoke when they've been
drinking; she characterized HB 413 as a wonderful bill.
REPRESENTATIVE JOULE concurred, and mentioned that when he was a
smoker he would sometimes smoke in bed.
CHAIR McGUIRE acknowledged that [the bill addresses] a safety
issue.
3:01:11 PM
REPRESENTATIVE WILSON moved to report the proposed CS for
HB 413, Version 24-LS1495\Y, Bannister, 4/10/06, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
413(JUD) was reported from the House Judiciary Standing
Committee.
HB 258 - SEXUAL ASSAULT BY PERSON WITH HIV/AIDS
3:01:40 PM
CHAIR McGUIRE announced that the committee would return to the
hearing on HOUSE BILL NO. 258, "An Act relating to aggravating
factors at sentencing." [Before the committee was
CSHB 258(HES).]
3:02:11 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
explained that her supervisor, Susan Parkes, has expressed a
preference for leaving [CSHB 258(HES)] as it is currently
drafted for a couple of reasons, one of which is that all the
factors about risk and exposure would require the DOL to have
expert witnesses testify. As currently written, the judge can
simply factor in the elements of exposure and risk if he/she
does decide to apply the proposed sentencing aggravator. Ms.
Carpeneti mentioned that the DOL does have some compromise
language, but reiterated that the DOL would still prefer to
leave the bill as is. She added that she does have a suggestion
for narrowing the title.
REPRESENTATIVE GRUENBERG said he'd like to hear the compromise
language; having to have an expert witness is less important, he
opined, than potentially sentencing someone unjustly. The cost
of hiring expert witnesses is simply part of the cost of doing
business.
MS. CARPENETI offered the following language as a possible title
change: "An Act relating to an aggravating factor at sentencing
for sexual assault and sexual abuse [of a minor]."
REPRESENTATIVE GRUENBERG said he would like the title to be even
tighter than that, and indicated that he would be offering
language to that effect later.
MS. CARPENETI said that the aforementioned compromise language
would involve adding, after "AIDS" on line 6, the words: ", and
the offense involved penetration". Such additional language
address Representative Gara's concern regarding sexual contact
[through clothing], and Representative Gruenberg's concern
regarding AS 11.41.452 and AS 11.41.455. She, reiterated,
however, that Ms. Parkes would prefer to keep the language [in
Section 1] as is.
REPRESENTATIVE GARA referred to a proposed change he'd written
and given to Ms. Carpeneti; that proposed change read [original
punctuation provided]:
At line 4 page 1
After .455 insert
"that involves penetration, or that otherwise
involves exposure to the victim to a risk, or a
reasonable fear, that the conduct could potentially
result in the transmission of HIV (or AIDS,)"
MS. CARPENETI relayed that Ms. Parkes has the same concern with
that proposed change.
REPRESENTATIVE GARA offered his belief that it is such common
knowledge as to what causes HIV or AIDS that an expert witness
wouldn't be needed.
3:06:19 PM
REPRESENTATIVE GRUENBERG, referring to the proposed compromise
language offered by the DOL, opined that the issue that that
raises is whether that language would require the involvement of
an "extra" expert witness. He opined that it wouldn't because
the question of whether penetration occurred would have been
proven in the main case.
MS. CARPENETI concurred, and clarified that the compromise
language would also involve deleting the word, "and" from
line 5. She noted, however, that the compromise language would
raise concerns regarding situations in which the crime does
involve penetration but is plead down to an offense that doesn't
involve penetration. For example, situations wherein a charge
of sexual assault in the first degree is plead down to a charge
of sexual assault in the second degree.
REPRESENTATIVE WILSON posited that if a struggle occurs, contact
between open wounds could also create the risk of exposure.
REPRESENTATIVE GRUENBERG agreed, but offered his belief that the
question is whether there will be many such cases that would
require the presence of an expert witness. He indicated that he
would not be offering the DOL's compromise language as an
amendment, and then asked Representative Gara whether his
suggested written change would require the use of an expert
witness.
REPRESENTATIVE COGHILL observed that the specific crime will
have already been proven and the person convicted by the time
the court has to decide whether to apply the proposed sentencing
aggravator. At that point, the question will be whether the
defendant had been diagnosed with HIV or AIDS, and anybody who'd
already signed a consent form to be tested for such diseases
probably shouldn't attempt to plead ignorance. He suggested
that the current language in the bill is adequate.
REPRESENTATIVE GARA, referring to his suggested written change
[text previously provided], offered his understanding that
adoption of that change would address everyone's concerns.
3:12:02 PM
MICHAEL SICA, Staff to Representative Bob Lynn, Alaska State
Legislature, sponsor, expressed on behalf of Representative Lynn
a preference for including the phrase, "conduct that could
result in the transmission ...".
REPRESENTATIVE GARA noted that his suggested written change
already includes the phrase, "the conduct could potentially
result in the transmission".
MS. CARPENETI and REPRESENTATIVE GARA paraphrased the suggested
written change further.
MS. CARPENETI suggested that for clarity, it might be better to
draft this suggested written change such that it contains a
paragraph (1) and a paragraph (2).
REPRESENTATIVE GARA said, "Sure."
MS. CARPENETI, in response to questions, noted that because of
the U.S. Supreme Court's decision in Blakely v. Washington, 124
S. Ct. 2531 (U.S., 2004), sentencing would occur as a separate
procedure, and that the original form of the aggravator would be
the most simple form for the DOL to deal with. She acknowledged
that cases involving penetration would not require an expert
witness during the sentencing procedure, though such might be
required for cases involving other forms of potential exposure.
REPRESENTATIVE COGHILL noted that if the suggested written
change is adopted, there will also have to be a "reasonable
fear" test as well as [expert testimony] regarding what would
constitute exposure. He opined, therefore, that that language
will significantly complicate the issue.
MS. CARPENETI mentioned that it would be up to the sentencing
court to decide what weight to give each of the factors present.
3:15:40 PM
REPRESENTATIVE GRUENBERG indicated that he supports the
suggested written change, particularly given that the majority
of the cases to which this proposed aggravator may be applied
will involve penetration. He opined that the expense of having
an expert witness is minimal when compared with the cost of
housing and feeding a prisoner.
REPRESENTATIVE GARA said he did not think that just because the
prosecution would be required to do more in the course of
discharging its duty is a sufficient reason to not adopt an
amendment. He acknowledged that cases involving some other form
of potential exposure might require the testimony of an expert
witness during the sentencing trial. Another circumstance in
which the proposed aggravator might be applied is if the victim
has a reasonable fear that he/she was subjected to the risk of
contracting HIV or AIDS. In conclusion, he opined that without
his suggested written change, [the bill] will get struck down by
the courts because it doesn't make sense to charge somebody who
has AIDS or HIV with an additional sentence if the crime he/she
committed doesn't result in a risk that HIV or AIDS could have
been transmitted to the victim.
REPRESENTATIVE WILSON suggested that perhaps they should amend
the suggested written change such that it would read:
At line 4 page 1
After .455 insert
"that involves penetration, or that otherwise
involves exposure to the victim where the potential
result could be the transmission of HIV (or AIDS,)"
REPRESENTATIVE GARA said that would be fine.
CHAIR McGUIRE indicated a preference for leaving the language
[in Section 1] as is; in other words, simply leave it up to the
judge to decide the issues raised. She mentioned that although
she is sensitive to Representative Gara's point, she believes
that most judges won't apply an aggravator in situations where
the perpetrator poses no risk of transmitting HIV or AIDS. She
assured members that she does not want to create a "status
aggravator"; instead, the aggravator should be related to the
risk the behavior poses.
3:22:00 PM
MS. CARPENETI suggested instead that the committee alter
[Section 1 of the bill] by deleting the word, "and" from line 5,
and inserting after the word, "AIDS" the following language: ",
and either (1) involves penetration or (2) the offense exposed
the victim to a risk or fear that the offense could result in
the transmission of HIV". She characterized this language as
clearer than the aforementioned suggested written change. In
response to a question, she offered her belief that using the
term, "fear" would be sufficient, because even a small risk of
exposure can terrify a victim and that is a form of harm. She
also said she doesn't think that the behavior referenced in the
bill would be considered a status offense; this proposed
aggravator would be applied in situations where a person is
convicted of sexual assault and has caused or potentially caused
more harm to the victim. That's what aggravating factors
address - things that make the crime worse. She, too, noted
that the prophylactic treatment is very serious.
CHAIR McGUIRE acknowledged that point.
REPRESENTATIVE GARA opined that the current wording in the bill
could make the behavior referenced a status crime because some
of that behavior includes behavior that poses no risk of
transmitting HIV or AIDS.
REPRESENTATIVE GRUENBERG concurred, again referring to AS
11.41.452 and AS 11.41.455 as examples of such behavior. He
said he supports Ms. Carpeneti's latest suggested change.
REPRESENTATIVE COGHILL opined that the potential for harm is
significant even in situations that don't involve penetration or
other potential forms of exposure. He expressed a preference
for allowing the judge to make the determination on some of
these issues, and for allowing the aggravator to possibly apply
regardless of whether there was penetration or other potential
forms of exposure.
3:26:55 PM
REPRESENTATIVE WILSON raised the issue of saliva exchange.
CHAIR McGUIRE offered her understanding that an aggravator could
only pertain to the crime that was plead to rather than the
crime that was charged.
MS. CARPENETI concurred, reiterating that this is of concern to
the DOL.
CHAIR McGUIRE asked whether other states have similar language,
and whether Ms. Carpeneti knows of any legal challenges to such
language.
MS. CARPENETI said she not aware of any, but acknowledged that
her research on that issue has been limited.
MR. SICA noted that other states have made it a crime for a
person with HIV or AIDS to have consensual sex without
disclosing his/her status with regard to those diseases. He
therefore characterized HB 258 as a "narrowly focused sexual
assault law."
CHAIR McGUIRE said she would prefer for the bill to be drafted
such that if favors the victim.
REPRESENTATIVE GARA expressed concern that someone could have an
aggravator applied to his/her sentence even though he/she never
poses a risk of transmitting HIV or AIDS. In response to
comments, he opined that without a change to the current
language, the bill would still also reference crimes that do not
involve penetration, or a risk of transmitting HIV or AIDS in
some other fashion, and crimes that are somewhat consensual in
nature.
REPRESENTATIVE GRUENBERG again raised the issue of the bill
referencing AS 11.41.452 and AS 11.41.455; for the crimes listed
in those statutes, the perpetrator may never even see the minor.
In response to a comment, he pointed out that a more serious
crime than is referenced in AS 11.41.452 could be charged if the
victim does come into physical contact with the perpetrator.
REPRESENTATIVE KOTT asked the sponsor to comment on the
suggested change.
REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor, said
that he would prefer to leave the bill as is, but acknowledged
that the committee process is meant to fix flaws in proposed
legislation; therefore, if the suggested change would make the
bill better he would be comfortable it.
3:33:28 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment
1, to alter [proposed AS 12.55.155(c)(33)] such that it would
read:
the offense was a felony specified in AS 11.41.410 -
11.41.455, the defendant had been previously diagnosed
as having or having tested positive for HIV or AIDS,
and either
(1) involves penetration or
(2) exposed the victim to a risk or a fear that
the offense could result in the transmission of HIV or
AIDS
REPRESENTATIVE COGHILL objected.
A roll call vote was taken. Representatives Wilson, Gruenberg,
Kott, Gara, and McGuire voted in favor of Conceptual
Amendment 1. Representative Coghill voted against it.
Therefore, Conceptual Amendment 1 was adopted by a vote of 5-1.
3:35:38 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 2, to narrow the title such that it would read: "An
Act relating to an aggravating factor at sentencing for sexual
assault and sexual abuse [of a minor]."
REPRESENTATIVE GRUENBERG indicated that he was considering
adding more language to that title change. He asked about AS
11.41.452 and AS 11.41.455.
MS. CARPENETI offered her belief that those would be considered
within the title.
REPRESENTATIVE GRUENBERG asked whether the title should include
the terms HIV and AIDS.
[No answer was audible.]
REPRESENTATIVE GRUENBERG said, "Yes," and relayed that he would
accept a friendly amendment.
CHAIR McGUIRE remarked that typically a title is tightened when
there is concern that unwanted items will be added to the bill.
She said she can't envision that such could occur in this case.
REPRESENTATIVE GRUENBERG offered an example.
CHAIR McGUIRE surmised, then, that the proposal is to have
Conceptual Amendment 2 say: "An Act relating to an aggravating
factor at sentencing for sexual assault and sexual abuse [of a
minor] that involves HIV or AIDS."
REPRESENTATIVE GRUENBERG said yes.
CHAIR McGUIRE objected to the motion.
REPRESENTATIVE GARA suggested altering Conceptual Amendment 2
such that it would say in part, "that involves a person
diagnosed with HIV or AIDS." He pointed out, though, that the
current title is already limited to aggravating factors at
sentencing.
CHAIR McGUIRE, in response to a question, said she would remove
her objection if Conceptual Amendment 2 does not contain the
terms HIV and AIDS.
REPRESENTATIVE GRUENBERG stated, then, that Conceptual
Amendment 2 would alter the title such that it would only read:
"An Act relating to an aggravating factor at sentencing for
sexual assault and sexual abuse [of a minor]."
CHAIR McGUIRE asked whether there were any objections to
Conceptual Amendment 2. There being none, Conceptual
Amendment 2 was adopted.
3:38:37 PM
REPRESENTATIVE KOTT moved to report CSHB 258(HES), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection,
CSHB 258(JUD) was reported from the House Judiciary Standing
Committee.
HB 325 - POST-CONVICTION DNA TESTING
3:39:45 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 325, "An Act relating to post-conviction DNA
testing; and amending Rule 35.1, Alaska Rules of Criminal
Procedure." [Before the committee was the proposed committee
substitute (CS) for HB 325, Version 24-LS1222\I,
Mischel/Luckhaupt, 4/5/06, which had been adopted as the work
draft and assigned to a subcommittee on 4/5/06; also included in
members' packets was the proposed committee substitute (CS) for
HB 325, Version 24-LS1222\S, Luckhaupt, 4/10/06.]
REPRESENTATIVE KOTT, speaking as chair of the subcommittee,
relayed that the proposed committee substitute (CS) for HB 325,
Version 24-LS1222\S, Luckhaupt, 4/10/06, captures most of the
concerns that could be addressed within the scope of the
legislation.
3:43:00 PM
REPRESENTATIVE COGHILL moved to adopt the proposed CS for HB
325, Version 24-LS1222\S, Luckhaupt, 4/10/06, as the work draft.
There being no objection, Version S was before the committee.
3:43:14 PM
KIMBERLY WALLACE, Staff to Representative Gabrielle LeDoux,
House Special Committee on Fisheries, Alaska State Legislature,
spoke on behalf of the sponsor, Representative LeDoux. Ms.
Wallace expressed the hope that the changes encompassed in
Version S will garner the committee's support for Version S.
She then informed the committee that throughout the legislation
the term "petitioner" and "defendant" was replaced with
"applicant". Page 1, line 9-10, of Version S now contains the
language, "The applicant shall serve a copy of the application
on the attorney general". On page 2, line 6-7, language was
inserted such that the sentence now reads: "Stating that the
applicant was innocent of the crimes for which the applicant was
convicted and any lesser included offense".
MS. WALLACE explained that there is now language on page 2, line
8, that reads: "(3) an affidavit from trial counsel stating the
reasons DNA testing, or more discriminating DNA testing, was not
sought before trial, or a statement by the applicant explaining
why this affidavit was not obtained". Also in Version S,
proposed AS 12.72.200(c) no longer includes the language, "The
court may deny a second or subsequent application requesting
relief under this section". The language, "under (c) of this
section" was added to page 2, lines 15-16, in order to provide
some clarity. Proposed AS 12.72.200(d) of Version S no longer
includes the language, "The court shall forward a copy of the
application for DNA testing to the attorney general". On page
2, line 24, of Version S, the time limit was increased from 30
days to 45 days per the request of the Department of Law (DOL).
REPRESENTATIVE GRUENBERG recalled that the question was whether
the time allowed for the attorney general to respond to the
application should be 30 days or 60 days. He further recalled
that Ms. Carpeneti was going to review that matter. He
expressed concern that 45 days might not be enough, given the
attorney general's schedule.
3:46:53 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
she had suggested 60 days, but hadn't had a chance to further
research that issue.
MS. WALLACE continued reviewing the changes encompassed in
Version S. She informed the committee that Version S no longer
includes a subsection (h) in proposed AS 12.72.200. On page 2,
line 28, of Version S, the title of AS 12.72.210 has been
changed to read "Standards for DNA testing." Furthermore, it
now stipulates a standard of clear and convincing evidence.
REPRESENTATIVE COGHILL noted the abundant use of the word,
"reasonable" in proposed AS 12.72.210(1). He asked how that
provision will work.
MS. WALLACE explained that the sponsor didn't want to make the
hurdle too high for the applicant, though this seemed to
engender disagreement from interested parties.
REPRESENTATIVE COGHILL asked about the tension between the
"clear and convincing" language and the "reasonable" language in
proposed AS 12.72.210(1).
REPRESENTATIVE GRUENBERG acknowledged that a clear and
convincing evidence standard could seem to be at odds with the
reasonable language, but pointed out that one can never really
show much more than that because of the speculative nature of
the evidence. The question, he surmised, is: "If we allow this
testing, is it going to make a difference." He highlighted that
at this point all that is being asked is whether to allow the
testing. In further response to Representative Coghill,
Representative Gruenberg reminded members that this standard
would apply even if the testing is not ordered.
3:55:45 PM
MS. WALLACE continued with her review by noting that Version S
no longer contains the word "reliable" in proposed AS
12.72.210(2), because the [subcommittee and sponsor] don't want
the judge to decide whether the DNA was reliable or not.
Furthermore, in Version S, proposed AS 12.72.210(3) no longer
contains the language, "conclusive DNA test results were not
available before the petitioner's conviction", and proposed AS
12.72.230(a) no longer contains the language "Collection of".
Also, proposed AS 12.72.230(a) now says in part, "DNA samples
shall be tested at a laboratory operated or approved by the
Department of Public Safety", rather than, "Testing of the
samples shall be performed at a laboratory operated or approved
by the Department of Public Safety". She then pointed out that
proposed AS 12.72.230(a) of Version S now contains the language
"other than samples collected under (a) of this section,".
MS. WALLACE relayed that Version S no longer contains a
definition of the term, "actual innocence", and that the
definition of the word, "incarcerated" was changed to read
simply, "'incarcerated' means physically housed in a
correctional facility following a felony conviction." She noted
that the aforementioned change was requested by the Division of
Juvenile Justice. Ms. Wallace then informed the committee that
this morning there was discussion regarding the notion that
those who are proven innocent shouldn't have their DNA placed in
a database. She noted that the committee has been provided with
an amendment to address the aforementioned. Ms. Wallace also
noted that the committee may want to address the issue of
preservation of evidence.
3:59:18 PM
REPRESENTATIVE GARA referred to page 2, lines 6-7, and offered
his understanding that it specifies that DNA evidence can't be
used if it shows that the individual is innocent of the crime
that he/she was convicted of but doesn't also show that he/she
is innocent of lesser included offenses. Offering a
hypothetical example, he asked whether the language, "any lesser
included offense" is really necessary.
MS. WALLACE noted that Representative Gara's concern was debated
[in the subcommittee]. She relayed that although Legislative
Legal and Research Services didn't feel that language was
necessary, the DOL felt strongly that it should be included.
REPRESENTATIVE GABRIELLE LeDOUX, Alaska State Legislature,
sponsor, explained that the DOL requested that language because
it didn't believe that HB 325 should be about fine-tuning legal
convictions. She further explained that HB 325 should target an
individual who hadn't been involved at all in a crime and it was
simply a case of mistaken identity. Representative LeDoux said
that the DOL made an excellent argument and thus she agreed to
include that language in the bill. She said that she is most
concerned about an individual who wasn't present when the crime
was committed, rather than an individual who should be in jail
for 25 years but was instead sentenced to 35 years.
REPRESENTATIVE GARA questioned whether there are lesser included
offenses that may justify a small sentence while the broader
included offense - that the individual didn't commit - would
result in a long sentence. Although a couple of years of
difference in the sentence is wrong, he said that it's of less
concern than situations in which an individual is sentenced for
twice as long as he/she should have been.
REPRESENTATIVE COGHILL opined that this could be a matter of
degree of guilt. He expressed his frustration with the ability
of an offender to plea bargain, because the victims are always
left on the short end. He said that he shares a bit of the
DOL's concern, so although he struggles with the possibility of
an innocent individual not having an opportunity [to prove
himself innocent], the reality of the system as he perceives it
makes him comfortable with the language.
REPRESENTATIVE GRUENBERG said that he isn't entirely satisfied
that the language, "and any lesser included offense" should be
included. He asked that Ms. Carpeneti be allowed to comment on
this issue.
CHAIR McGUIRE passed the gavel to Representative Wilson.
4:05:42 PM
MARY ANNE HENRY, Director, Office of Victims' Rights (OVR),
Alaska State Legislature, specified that her major concern is
with regard to why another system is being created when there is
already a post-conviction relief (PCR) system that was put in
place 10 years ago. She asked why a request for a DNA sample
can't simply be part of a PCR request. Without finality,
victims will continue to be traumatized and closure will be
disrupted. Ms. Henry highlighted that HB 325 doesn't seem to
include a time limit like there is for a PCR request, and that
she would like it to.
MS. HENRY expressed the same concern with regard to the burden
of proof - the clear and convincing [evidence provision] - and
the references to "reasonable". She questioned why the same
standard isn't being used for both DNA sample requests and PCR
requests. Ms. Henry suggested that when counsel is appointed,
he/she should be required to submit additional information as
well as a document stating that there are no meritorious claims.
REPRESENTATIVE GRUENBERG suggested that proposed AS 12.72.210
only raises the question of whether one can get a test and
whether the DNA could exculpate the defendant. That is why a
lesser standard is used. With regard to whether the new counsel
could file a brief stating that there is no meritorious claim,
Representative Gruenberg offered his understanding that the
language on page 2, lines 18-22, of Version S covers this
matter.
REPRESENTATIVE KOTT highlighted that the committee seems to be
wrestling with the same language that the subcommittee did.
MS. CARPENETI, in response to the issue raised by Representative
Gruenberg, said that the DOL prefers to include the language,
"any lesser included offense" because an individual who makes an
application for further testing has been convicted beyond a
reasonable doubt, has had an appeal that has been overturned,
and is now in jail. Therefore, the aforementioned individual
has had several chances to litigate the validity of the crimes
for which he/she has been convicted. She offered her
understanding that the procedure being established in HB 325 is
meant to provide a wrongfully accused and convicted individual
with another chance in a case where there has been a huge
mistake. The department doesn't view such a procedure as being
a fine-tuning of whatever sentence the convicted individual
received. She indicated that the language, "and lesser included
offense" is meant to clarify that this proposed statute should
be used only in cases of misidentification.
REPRESENTATIVE GARA indicated that he has two concerns with
regard to DOL's position. He said the entire point of DNA
evidence is that it could show that the jury made a huge mistake
and that the individual [being convicted] didn't do what he/she
is being charged with. Therefore, if DNA testing shows that an
individual is innocent, the [DNA sample] should be able to be
used. By included the language "any lesser included offense",
there could be a situation in which two people assault an
individual in order to rob that individual. One of the
assailants assaults the individual to the point of murdering or
raping the individual, and yet it is the other assailant who is
convicted of that crime. He again highlighted that the
advantage of DNA testing is that the individual who really
committed the murder/rape is charged rather than the individual
who didn't. Representative Gara specified that by including the
language that an individual can't use DNA testing if the
individual does some lesser included offense than he/she is
convicted of, then the true perpetrator is let free and another
has been wrongfully convicted.
[Representative Wilson returned the gavel to Chair McGuire.]
MS. CARPENETI reminded the committee that in such a case the
defendant has already been sentenced and has had the opportunity
to bring out such arguments and have them be considered.
Furthermore, in the example provided earlier, the individual who
did not actually commit the murder is an aider and abettor and
thus is responsible under current law for the harm to the
victim. Ms. Carpeneti opined that the post-conviction DNA
testing procedures are really for those who are truly innocent
and not participating at all, and that [the committee] should
leave the sentencing considerations [as is]. She noted that
there is a defense to felony murder for the individual who
didn't actually [commit the murder] that can be brought to the
court. Situations in which a person participates in a robbery
but whose co-defendant went far beyond that are not what this
bill should address.
REPRESENTATIVE LeDOUX recalled that this matter was extensively
discussed in the subcommittee, but the subcommittee couldn't
come up with anything to address members' concerns.
REPRESENTATIVE GARA posed a hypothetical situation in which two
individuals attempt to rob someone, but one of the assailants
decides to rape the victim while the other assailant attempts to
stop the rape, but fails to do so. He further posed that the
wrong individual is convicted of each crime. In such a
situation, it doesn't make sense that the assailant who didn't
commit the rape should sit in jail for the crime he/she didn't
commit.
4:24:52 PM
STEPHEN SALOOM, Policy Director, Innocence Project, stressed the
importance of allowing the courts the ability to review
convictions, especially in cases wherein DNA evidence testing
was in its infancy, in order to determine if such testing was
utilized correctly. With regard to why there should be a new
avenue for DNA testing after trial as opposed to other new
evidence after trial, the laws are not set up to tell the court
whether it's acceptable to test evidence for a new reason that
can be probative in a case. He highlighted that 40 other states
have adopted similar legislation, and surmised that they did so
because it's important to review such cases with DNA evidence so
as not wrongly victimize someone else.
MR. SALOOM then noted his agreement with [Representative Gara].
Furthermore, in 175 DNA exonerations, the jury had initially
found an individual guilty beyond a reasonable doubt on every
element of the crime despite the fact that the individual was
actually innocent. Clearly, in those cases the prosecutor was
able to convince the jury that the individual committed the
crime when he/she hadn't. The question [this legislation is
addressing] is whether [the DNA] evidence should even be
reviewed to discover something that might be very probative.
Here again, Mr. Saloom opined, the prosecutor can make a very
good argument to the judge, based on the results of the initial
case, to disallow testing, and this is of great concern.
REPRESENTATIVE GRUENBERG asked if any other states include the
language, "any other lesser included offense".
MS. CARPENETI said she believes the backup material provided to
members' indicates that other states do include such language.
4:31:44 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
change "45" to "60" on page 2, line 24. There being no
objection, Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 2, which read [original punctuation provided]:
The investigating law enforcement agency shall
preserve any biological material identified during the
investigation of a crime or crimes for which any
person may file a petition for DNA testing under this
section. The identified biological material shall be
preserved for the period of time that any person is
incarcerated in connection with that case.
REPRESENTATIVE GRUENBERG indicated that this language comes from
Michigan law.
CHAIR McGUIRE asked whether there were any objections to
Conceptual Amendment 2. There being none, Conceptual
Amendment 2 was adopted.
4:34:08 PM
REPRESENTATIVE KOTT made a motion to adopt Amendment 3, which
read:
Page 4, lines 9-11
(b) The testing laboratory shall not make the
results of a DNA test ordered under AS 12.72.200
available to the DNA identification registration
system under AS 44.41.035 [and] or to any other law
enforcement DNA databases unless the DNA test results
identify the applicant as the source of the DNA
evidence for which testing was sought.
REPRESENTATIVE COGHILL objected for the purpose of discussion.
REPRESENTATIVE KOTT explained that under Amendment 3, once the
judge has allowed a DNA test to be performed and that test
exonerates the individual, then that DNA test result won't be
included in the DNA databank. However, Amendment 3 doesn't
address the swab taken when the individual was first brought
into custody or entered the correctional facility.
MS. CARPENETI pointed out that AS 44.41.035(i) already includes
a procedure to expunge DNA samples of an individual whose
conviction has been overturned.
REPRESENTATIVE COGHILL surmised that Amendment 3 addresses the
DNA sample for the particular crime [for which the conviction
was overturned].
CHAIR McGUIRE recalled that some states allow DNA swabbing at
the time of arrest. Although the aforementioned can be
controversial, states that have done so have actually found
links to other crimes. Chair McGuire stated that she isn't
comfortable with Amendment 3.
MS. CARPENETI opined that the drafting of Amendment 3 is
problematic. For example, in the Alaska Court of Appeals case,
Osborne V. State, the defendant sought to test the condom that
was found in the area of the crime 26 hours after the crime was
committed; this area happened to be a common area for romantic
trysts. Whether or not the semen in the condom was the
defendant's wasn't dispositive of the case because the other
evidence was overwhelming, and so the conviction would not have
been overturned. Therefore, in that case, for example, the
defendant's DNA shouldn't be taken out of the DNA databank, she
opined. She reiterated that current law allows for DNA samples
to be removed from the databank when the defendant has been
found not guilty or when the conviction has be overturned upon
appeal.
REPRESENTATIVE KOTT withdrew Amendment 3 with the intention of
working further on this issue as the legislation moves through
the process.
4:39:12 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 4, to
delete from page 2, line 7, the language, "and any lesser
included offense".
REPRESENTATIVE COGHILL objected.
REPRESENTATIVE GARA suggested that committee members think about
a situation in which a family member committed a crime that
justifies a 10 year sentence but he/she is instead sentenced to
a far longer period of time for a different crime, and 25 years
into the much longer sentence the DNA evidence shows that the
family member didn't commit that particular crime. That
individual will sit in jail for the rest of his/her life unless
he/she is able to use DNA evidence to show that he/she didn't
commit the crime for which he/she was sentenced. Representative
Gara asked committee members to think about how they would feel
if the law didn't allow the DNA evidence to illustrate that one
of their family members was wrongly convicted.
REPRESENTATIVE GRUENBERG commented that he, too, is troubled
with regard to this aspect of the legislation. He said he
couldn't find any reason why someone who might have committed a
lesser included offense should be disqualified from being
tested. He highlighted that [the DNA evidence] may
significantly shorten the sentence.
MS. CARPENETI characterized it as a special procedure to
challenge a conviction that for all other reasons has been
upheld by the appellate courts. The purpose [of the language
"any lesser included offense"] is to address a mistakenly
identified perpetrator - not an individual who feels that he/she
should've been convicted of sexual assault in the second degree
rather that sexual assault in the first degree, for example.
This language, she further opined, is for the extraordinary case
in which the individual is factually innocent.
4:42:44 PM
REPRESENTATIVE GARA relayed his belief that between now and the
time he dies there will be at least one injustice done under
this language, one injustice which is one too many. He pointed
out that the law is written to reflect the notion that there are
criminals with a conscience. In fact, there are instances in
which the defendant is sentenced less if he/she attempts to
prevent the continuation of the crime he/she had initially
engaged in. He opined that there will be circumstances in which
a perpetrator will be convicted of a murder when he/she simply
assaulted someone and then tried to stop the murder.
4:43:55 PM
A roll call vote was taken. Representatives Gruenberg, Gara,
and Kott voted in favor of Amendment 4. Representatives
McGuire, Coghill, and Anderson voted against it. Therefore,
Amendment 4 failed by a vote of 3-3.
MS. CARPENETI returned attention to proposed AS 12.72.210(1),
and opined that it's unclear because, among other things, it
should instead provide that if the results of the DNA test are
as the claimant asserts, then no reasonable trier of fact would
find the individual guilty. She characterized the language in
proposed AS 12.72.210(1) as allowing a "fishing expedition"
because it will allow those in jail to bring applications for
post-conviction DNA testing on very slim grounds. She relayed
her understanding that if the testing comes out as the applicant
asserts, then it will be almost dispositive and therefore decide
the case. The DOL has a major concern with the test and with
the fact that no due diligence is required. This provision
allows an individual to bring it up at any time, whereas the PCR
applications have limits in which to bring them forth, and
although there are exceptions for cases with newly discovered
evidence, the individual must establish that he/she proceeded
with due diligence.
CHAIR McGUIRE asked why the subcommittee decided not to adopt a
due diligence standard.
REPRESENTATIVE GRUENBERG said he didn't know.
CHAIR McGUIRE said that she would be inclined to offer an
amendment to adopt a due diligence standard.
REPRESENTATIVE GRUENBERG asked if there is a standard specifying
a time limit.
MS. CARPENETI pointed out that the PCR statutes specify limits
of either one year from when an appeal has been decided or two
years from trial if there's no appeal. Those statutes further
specify that under exceptional circumstances and in the interest
of justice, there are circumstances that are envisioned for PCR,
such as newly discovered evidence being brought after the
aforementioned time period.
REPRESENTATIVE LeDOUX offered her recollection that the due
diligence standard wasn't included because if DNA testing can
actually prove someone's innocence, then no matter how much time
has passed, [it should be allowed].
4:48:16 PM
CHAIR McGUIRE surmised that Ms. Carpeneti's concern is that
there will be individuals making this claims all the time and
thus it will be cumbersome.
MS. CARPENETI acknowledged that's one of the DOL's concerns.
She then pointed out that the further away from the crime [the
evidence is brought forward], the greater the likelihood that
the victims will have passed away and that the other evidence
will have been scattered. Therefore, it's in the interest of
everyone to resolve cases as soon as possible. She noted that
most PCR applications require that persons, even those who don't
meet the statutory deadlines, act with due diligence.
REPRESENTATIVE COGHILL relayed his belief that under proposed AS
12.72.210(1), there seems to be a "fairly decent vetting."
Although he acknowledged that the continual use of the term
"reasonable" makes it difficult to "nail it down," it still has
to be clear and convincing. He said that the aforementioned is
the reason he is willing to retain the language, "any lesser
included offense". Furthermore, couldn't the court say that an
individual's time to obtain DNA testing had expired because
he/she already had multiple opportunities to do so? Also, isn't
there a motivation to seek [DNA testing] earlier rather than
later?
[Chair McGuire turned the gavel over to Representative
Anderson.]
MS. CARPENETI replied yes, except that language on page 4, lines
4-5, says that the judge doesn't have to worry about the
timeliness of the request.
MS. CARPENETI, in response to a question, suggested deleting the
language on page 4, lines 4-5, which says, "Notwithstanding any
law or rule of procedure that bars an application for post-
conviction relief as untimely,". The hope, she opined, is that
this change would negate the provision in Version S that takes
away all requirements for due diligence for PCR applications.
REPRESENTATIVE ANDERSON [made a motion to adopt] Ms. Carpeneti's
suggestion as Amendment 5, to delete from page 4, lines 4-5, the
words, "Notwithstanding any law or rule of procedure that bars
an application for post-conviction relief as untimely, an" and
insert the word, "An".
4:52:07 PM
REPRESENTATIVE LeDOUX questioned how one could expect the
typical prisoner to know whether he/she has a claim for relief
via the use of DNA testing if the law is written such that
he/she will be barred from relief because of a lack of due
diligence.
REPRESENTATIVE ANDERSON opined that the public defenders are
very competent and informed on such matters.
REPRESENTATIVE LeDOUX pointed out, though, that once an
individual is convicted and is in jail, he/she no longer has the
services of the public defender.
REPRESENTATIVE ANDERSON reiterated his belief that the public
defender would still inform the [jailed person].
MS. CARPENETI clarified that it depends on the circumstance.
She noted that the individual would be represented through
appeals and PCR remedies. She also noted that determining
whether there was due diligence depends on the circumstances;
for example, when did the [evidence] come to light and how long
did the individual wait after finding out about it. Therefore,
if the individual [uncovered evidence] 20 years later, the court
could find that the individual acted with due diligence because
he/she proceeded without delay once that new evidence was
discovered.
REPRESENTATIVE GARA expressed his hope that Representative
Anderson would consider withdrawing the amendment. Drawing on
his experience as an attorney, he relayed that it is the
innocent person who will fight for his/her innocence the least
while it is the guilty person who will fight the most to get
released. When there is DNA evidence that shows someone's
innocence, and the innocent person decides not to act on it
immediately because he/she don't know what DNA is or he/she has
lost all hope, that's the type of person that DNA evidence is
supposed to protect.
REPRESENTATIVE GARA opined that the fact that the innocent
individual didn't act on the evidence immediately is almost a
testament to that individual's character, and yet those innocent
individuals are being punished for having that character. He
said that the reality is that DNA evidence exonerates innocent
people, and so it would be very wrong to leave an innocent
person in jail because he/she didn't act as quickly as the
government specifies. Therefore, he opined, there is every
reason not to impose this additional standard.
[Representative Anderson returned the gavel to Chair McGuire.]
MS. CARPENETI, in response to a question, explained that once an
applicant is tested, the process returns to that used for PCR
under AS 12.72.010 through AS 12.72.040, which include the
timeliness provisions.
CHAIR McGUIRE suggested that the committee move the legislation
and members work further on it as it continues through the
process.
REPRESENTATIVE GRUENBERG recalled testimony that the language of
proposed AS 12.72.210(1) is confusing. Therefore, he suggested
simplifying that language by deleting the words, "reasonable
probability that a reasonable trier of fact would have a".
CHAIR McGUIRE asked if the aforementioned would defeat any
compromises made in the subcommittee.
REPRESENTATIVE LeDOUX opined that there was no compromise
reached on that particular language.
REPRESENTATIVE KOTT said that suggested change would probably
work. However, in order to put this in the proper context, one
must review what other states have done. He relayed that most
other states use a reasonable probability standard.
5:00:43 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 6, to
delete from proposed AS 12.72.210(1) the words, "reasonable
probability that a reasonable trier of fact would have a".
There being no objection, Amendment 6 was adopted.
5:01:03 PM
CHAIR McGUIRE turned the committee's attention back to
Amendment 5 [text provided previously].
A roll call vote was taken. Representatives Anderson, Coghill,
and McGuire voted in favor of Amendment 5. Representatives
Kott, Gara, Gruenberg, and Wilson voted against it. Therefore,
Amendment 5 failed by a vote of 3-4.
5:02:27 PM
REPRESENTATIVE ANDERSON moved to report the proposed CS for
HB 325, Version 24-LS1222\S, Luckhaupt, 4/10/06, as amended, out
of committee with individual recommendations and the
accompanying zero fiscal notes. There being no objection,
CSHB 325(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:03 p.m.
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