Legislature(2023 - 2024)GRUENBERG 120
02/24/2023 01:30 PM House JUDICIARY
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| Presentation(s): Department of Law Criminal Division | |
| Adjourn |
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 24, 2023
1:30 p.m.
MEMBERS PRESENT
Representative Sarah Vance, Chair
Representative Jamie Allard, Vice Chair
Representative Craig Johnson
Representative David Eastman
Representative Andrew Gray
Representative Cliff Groh
MEMBERS ABSENT
Representative Ben Carpenter
COMMITTEE CALENDAR
PRESENTATION(S): DEPARTMENT OF LAW CRIMINAL DIVISION
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
JOHN SKIDMORE, Deputy Attorney General
Office of the Attorney General
Criminal Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Gave an overview of the Criminal Division.
ACTION NARRATIVE
1:30:46 PM
CHAIR SARAH VANCE called the House Judiciary Standing Committee
meeting to order at 1:30 p.m. Representatives Vance, Allard,
Johnson were present at the call to order. Representatives
Eastman, Gray, Groh arrived as the meeting was in progress.
^PRESENTATION(s): Department of Law Criminal Division
PRESENTATION(s): Department of Law Criminal Division
1:31:10 PM
CHAIR VANCE announced that the only order of business would be
the Department of Law Criminal Division presentation.
1:32:30 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Criminal Division, Department of Law (DOL), introduced
himself and shared that he has been working as a prosecutor in
DOL for over 25 years. He said he was asked to give an overview
of the criminal justice system. He began on slide 1 of the
presentation, titled "The Criminal Justice Process,"[hard copy
included in committee packet], and said he hopes today's
presentation will give committee members a broader perspective
on criminal law as bills regarding the subject come to the
committee through the legislative session.
1:33:36 PM
MR. SKIDMORE moved to slide 2 to explain the structure of court
systems in the United States. He said that in the American
Court System, there are at least two separate courts: federal
and state. He noted that state courts in other states can
include local elected courts as well. He said different courts
have different purposes in that trial courts have litigants
present the facts of a case and get an initial decision.
However, if there is the belief that a legal decision was made
improperly, he said the case then moves up to an appellate court
for review.
1:34:40 PM
MR. SKIDMORE moved to slide 3. He said that in federal courts,
the United States Supreme Court is the highest court of
jurisdiction, followed by the U.S. Courts of Appeal, U.S.
District Courts, U.S. Magistrate Courts, and Specialty Courts.
In the Alaska Court System, the highest court is the Alaska
Supreme Court. The next court is the Alaska Court of Appeals,
which he said handles only criminal matters. He explained the
role of the Alaska Superior Court, which has general
jurisdiction over civil and felony cases. He said the Alaska
District Courts handle misdemeanor crimes, and the Alaska
magistrates work during court afterhours. He said the
connection between the two systems is that cases will flow
through the courts. He explained that criminal cases traveling
through the state court system will elevate to the United States
Supreme Court only if there is a federal constitutional concern,
whereas a case that covers state law would only be handled in
the State Supreme Court. He noted that there are situations
where a case is removed to federal court but said that does not
happen in criminal cases since those cases are based on state
statutes.
1:36:40 PM
MR. SKIDMORE moved to slide 4 to talk about the goals of the
criminal justice system and how those goals are balanced. He
said the first goal to balance is societies need to hold
offenders accountable, and legislatures determine what is
considered criminal conduct. He said the hallmark distinction
between criminal and civil law is that in criminal law, the
state can deprive an individual of their liberty for their
conduct. He highlighted case procedures that must be balanced
between offender accountability and constitutional presumed
innocence. In criminal justice, he outlined aspects of the
Alaska and U.S. Constitutions: search and seizure, right to
remain silent, free speech, double jeopardy, due process, speedy
trial, confrontation rights, notice to offenders, public jury
trials, right to counsel, right to bail, and right to avoid
cruel and unusual punishment. He stressed that the procedures
put in place by the U.S. and Alaska Constitutions reflect the
interest in public participation in the criminal justice system.
1:38:30 PM
MR. SKIDMORE moved to slide 5. He said the criminal justice
system is built upon discretion. He outlined the steps involved
in the criminal justice process: investigation, arrest, formal
charging, arraignment, preliminary hearing, grand jury, jury
selection, trial, sentencing, appeals, and post-conviction
remedies. He stressed that the court system has many layers,
especially for appeals. Following the appeals process is post-
conviction remedies, where if the appeals process did not
provide the relief the offender thought was available to them,
the offender then can file for post-conviction relief (PCR).
Slide 5 depicts the criminal justice process as a funnel; he
explained that it is to help people understand that not every
incident that may involve criminal conduct gets to the end of
the process.
1:40:41 PM
MR. SKIDMORE presented a diagram on slide 6 showing a simplified
flow chart of the criminal justice system. He explained that
the diagram outlines an individual's entry into the system after
having been reported to have committed a crime: prosecution,
pretrial services, adjudication, sentencing, sanctions,
corrections, and their exit from system, as well as the case
flow of felonies, misdemeanors, and juvenile offenders. He made
a distinction between Unified Crime Report (UCR) data and
prosecutions, in that UCR data contains just the instances of
crime reports made to law enforcement, and further, he said not
all reports get referred to DOL for prosecution. He said there
are multiple reasons as to why a report does not get referred to
DOL, like the case being unfounded or unsolved as examples. In
the cases that do reach DOL, filing charges come next. He
stated that prosecutors, like law enforcement, wield discretion.
He explained that a prosecutor's discretion looks at the burdens
of proof and proof beyond a reasonable doubt, whereas law
enforcement's discretion looks at probable cause. He said there
is a different level of discretion between burden of proof and
probable cause. He said he would not go over the chart on slide
6 in depth but wanted it presented to committee members and the
public to give a sense of the overall process.
1:42:51 PM
MR. SKIDMORE moved to slide 7 to describe the criminal justice
process in further detail. He explained that when law
enforcement is alerted to criminal activity, that is when an
investigation begins. Based on reasonable suspicion, officers
can perform a "stop and frisk" on an individual; however, he
emphasized that reasonable suspicion is the lowest standard of
proof that exists in the criminal justice system. If officers
are seeking to execute a search warrant or to make an arrest, he
said the officers then require probable cause.
1:43:42 PM
MR. SKIDMORE talked about criminal complaints on slide 8 and
listed what is in the complaint document: The charges against
the individual, the legal elements of the crime, supporting
facts, penalties, and crime classification. He said these items
are listed to give notice to the offender what they have done
wrong and are also a requirement as per the U.S. and Alaska
Constitutions. He said a criminal complaint initiates the
criminal case process, and in Alaska, cases can be filed by
prosecution as well as law enforcement. He explained that cases
filed by law enforcement are still referred to DOL for review
and to determine whether DOL would file charging documents. He
said the referred documents from law enforcement are considered
"informations," which DOL can use when prosecuting misdemeanors.
He said DOL cannot prosecute an individual for a felony without
a grand jury returning an indictment against the individual. He
summarized that a grand jury comprises 12-18 people who review
the evidence the state has and decide if there is sufficient
evidence to move a case forward. He spoke about the booking
process.
1:45:59 PM
MR. SKIDMORE moved to slide 9. He spoke to the initial court
appearance process and said that a defendant must be brought
before a magistrate or judge without unnecessary delay. In
Alaska, a defendant must appear before a judge within 24 hours
after arrest, where the judge will then inform the defendant of
their rights and the charges against them. He said bail is
generally considered during initial appearance.
1:46:40 PM
MR. SKIDMORE moved to slide 10 to explain the process of an
arraignment by a district court judge. He said that during
arraignment, the defendant is again informed of the charges
against them, consideration of bail is - if not already done -
appointment of counsel and consideration by the judge whether
the alleged facts support probable cause. He explained the
three possible pleas the defendant can make: not guilty, no
contest, or guilty.
1:47:36 PM
MR. SKIDMORE explained the preliminary hearing process while on
slide 11, which he referred to as "quasi mini trials." Present
at such hearings are the judge, the defense attorney, and the
defendant. He explained that a preliminary hearing gives the
state the opportunity to present its proof on the case, and
allows the defense to perform cross-examination of witnesses.
He said that the preliminary hearing process is infrequently
used in Alaska, and noted that in his own experience, he has
held only one such hearing in the last 25 years. He said the
grand jury process is typically used instead of preliminary
hearings, and explained that a preliminary hearing is conducted
only if there has not been a grand jury held. The grand jury
must be held within 10 days if the defendant is in custody, or
20 days if out-of-custody. He said defendants can waive their
constitutional rights, and that it is not infrequent for DOL to
contact the defendant's defense counsel to engage in
negotiations prior to going to grand jury to resolve a case. He
said the defense is not required to waive constitutional rights,
but that it is an option in the criminal justice process. He
pointed out that preliminary hearings are not required in every
state. He explained that the questions posed by a grand jury
must be answered, and there are consequences if the questions
are unanswered. He referred to Alaska criminal rule 6 and 6.1,
as well as the Alaska Constitution, to explain where the grand
jury process is based. He said there are two functions of the
grand jury, the first - and what is focused on - is indictments.
Anytime DOL wants to go to trial on a felony case, the case has
to go to grand jury, where the state's evidence will be heard to
determine if there is enough evidence.
1:50:22 PM
REPRESENTATIVE ALLARD asked Mr. Skidmore about the grand jury
process. She relayed her understanding that, per the
constitution, there will always be a grand jury held. She asked
if there's been a change in statute in who gets to determine who
the prosecutor is, and she asked who determines whether a grand
jury is held. She remarked, "you know where I'm going, don't
you? I'll just put it with this: Kenai."
MR. SKIDMORE answered with information on slide 11 regarding the
investigative function of grand juries. He explained that the
grand jury serving the investigative function is not a
determination on whether to indict an individual, it is rather
an investigation into a case as it relates to a matter of public
concern. He used matters of public welfare or safety as
examples of what the investigative report could assess. The
report is then sent back to the court with its findings and
determinations, and is also made publicly available. He said
the determination of whether a person has committed a crime is a
different function of grand jury: the charging function. In
addressing Representative Allard's question, he said that if a
person is going to be charged with a felony crime in Alaska, a
prosecutor has no authority to make that person go to trial
without going through a grand jury. He pointed out that
investigative grand juries do not happen often, and said the
challenge is that there must be a legal advisor to the grand
jury. He said, given how the rules are set up, usually a
prosecutor comes in to advise the jury, help serve subpoenas,
and provide information. He relayed complaints that DOL has
heard in the state, in that the complainants believe that
someone is interfering in a citizen's ability to get to grand
jury. He clarified that the complaints are incorrect, and that
no one has ever interfered with a person trying to get to grand
jury. He explained that there are instances where members of
the grand jury share information with one another in a way that
does not follow court rules. That is corrected and the rules
are explained to the members. He noted that investigative grand
juries did not have clearly defined rules until January of this
year, which at that time the Alaska Supreme Court amended Alaska
criminal rule 6.1 to provide clarity on how investigative grand
juries are supposed to function.
1:53:52 PM
REPRESENTATIVE ALLARD asked if the Alaska Supreme Court has
decided to redefine, or further define, what the writers of the
Alaska Constitution meant.
MR. SKIDMORE answered that he would not characterize the matter
that way. He said the Alaska Supreme Court has not changed what
the state constitution says. Instead, the court has provided
clarity and guidance on how the investigative grand jury process
works. He explained that deciding when to hold an investigative
grand jury was missing from the process. He said the
constitution indicates that there can be investigative grand
juries held, but no further guidance is provided. He said the
role of the supreme court - as the third branch of government -
is to create rules of court. He pointed to a large red book on
a shelf in the committee room that is the book of all the rules
for courts, and said that rules inside the book all had to be
promulgated by the Alaska Supreme Court. The only other way
court rules can be established, as outlined in the constitution,
is through the legislature. Court rules, however, require a
two-thirds vote in both the House and Senate for a change to be
approved.
REPRESENTATIVE ALLARD asked if the language in the Alaska
constitution relating to grand juries states the word "can".
She also asked, regarding Alaska court rule changes, if the
supreme court changed any language recently to read "shall",
"will", or "may".
MR. SKIDMORE agreed to follow up with Representative Allard
regarding any changes to court rules. In answering a previous
question about the language of the state constitution as it
relates to grand juries, he referred to Article 1, Section 8 of
the Alaska Constitution.
1:56:46 PM
CHAIR VANCE asked Mr. Skidmore who can request a grand jury.
MR. SKIDMORE answered that a person does not request a grand
jury as a charging function. Regarding the charging function
process, he explained that it typically begins when a prosecutor
brings forward charging documents for a felony crime case, and
then the case is requested to be scheduled. Moreover, he said
the initial investigative jury process was unclear until the
change in Alaska Criminal Code 6.1, and stressed that there was
no previous court rule, statute, or language in the constitution
that provided guidance on how someone would request an
investigative grand jury. He said that the Alaska Supreme Court
had changed Alaska Criminal Code 6.1 because the court saw need
for direction and, therefore, changed the code to outline how a
citizen can request such a jury. He summarized the process
under the new criminal code: a citizen can request an
investigative grand jury; the request is sent to both DOL and
the prosecutor's office; the request is reviewed and, if found
that the case has an appropriate basis to make a legal
determination, and meets constitutional requirements, an
investigative grand jury can be scheduled. He noted that
typically the office of criminal justice schedules the juries,
as well as handles citizen requests.
CHAIR VANCE inquired about differences between a grand jury and
other trial juries that may take place.
MR. SKIDMORE described that at a grand jury there is no
defendant, defense attorney, or judge; it is just the 12-18
jurors, a court clerk, a prosecutor, and witnesses from the
prosecution. He said the grand jury evaluates the information
presented and is charged with deciding whether there is
sufficient evidence to move the case to trial. Alternatively,
the investigative grand jury looks at information brought to it
in order to make a recommendation to the presiding judge, who
will receive the recommendation and make it available to the
public. He explained how the processes are different compared
to a trial jury, in that the trial jury has the defendant,
defense attorney, and judge thoroughly examining the case
information.
2:00:59 PM
REPRESENTATIVE EASTMAN asked how the process would be carried
out if a citizen were to request an investigative grand jury and
requests investigation of the attorney general or chief justices
of the Alaska Supreme Court.
MR. SKIDMORE said the challenge in investigating high level
state officials is that the state process is not the best
process to use. He said sometimes a case like Representative
Eastman described needs to be referred to the federal government
and the U.S. Department of Justice. However, he pointed out
that it is possible to have DOL individuals investigated,
including attorney generals, and noted a current case that
involves a former Alaska attorney general via an appointed
special prosecutor. He noted another past instance where an
investigative grand jury was formed to investigate a governor,
who was in office at the time. He said the investigations are
possible but underlined that protections or "walls" are needed
so that the information does not reach the target of the
investigation. He summarized the two options: the investigation
is done by a special prosecutor - or another mechanism within
the state DOL or, if it cannot, then it should be addressed at
the federal level. As for state judges and state court system
personnel, Mr. Skidmore shared that he has experience
prosecuting both. He said what would be difficult to address is
whether the case involves just an individual, or alleges
systemwide corruption, because individuals would likely argue
that the case is flawed because it was influenced by corrupt
individuals. He reiterated that a case of that nature should be
referred to the federal level.
REPRESENTATIVE EASTMAN stated his belief that the topic merits
further committee time in the future.
2:03:48 PM
REPRESENTATIVE ALLARD asked about the special prosecutor's
office.
MR. SKIDMORE responded that there is an Office of Special
Prosecutions, which functions as a division and reports to the
division director as well as to himself. Further, he explained
that DOL has special prosecutors that are appointed outside of
the department, and there are two instances of that currently.
REPRESENTATIVE ALLARD asked if the Office of Special
Prosecutions is the entity that decides whether a grand jury is
needed or not within an investigation.
MR. SKIDMORE answered that it would be DOL overall. He said the
department usually involves the office of special prosecutions
in investigative grand jury cases. He explained that the office
is involved because such juries are not held frequently and
handling this uncommon request effects workload capacity.
REPRESENTATIVE ALLARD interjected and rose concern that the
ability for an Alaska citizen to request an investigative grand
jury has been taken away and given to a state entity that, in
the future, a citizen may want to have investigated. She asked
Mr. Skidmore if he thinks that is fair, and whether he sees
conflict of interest in that process. She stated, "Before we
were just advising, now we're saying, 'You know what? Unless we
tell you it's okay, you're not going to be able to do an
investigation.'"
MR. SKIDMORE stated that he had not indicated any part of what
was just asked.
REPRESENTATIVE ALLARD replied, "No, I'm not saying you did; I'm
saying that's what it sounds like though."
MR. SKIDMORE asked Representative Allard to clarify what she
means by "that" in "that's what it sounds like."
REPRESENTATIVE ALLARD asked about the revisions to Alaska
Criminal Code 6.1.
MR. SKIDMORE explained the changes, he said the Alaska Supreme
Court provided guidance about how an individual can request an
investigative grand jury.
REPRESENTATIVE ALLARD relayed her understanding of the criminal
code 6.1 changes, in that the investigative grand jury request
process has been taken away from Alaskans and instead the state
now decides when to hold one.
2:06:31 PM
CHAIR VANCE encouraged members to review Alaska court rules and
statute. She said there will likely be another meeting on
criminal justice.
REPRESENTATIVE ALLARD relayed her agreement with Representative
Eastman's previous statement [regarding the need for further
discussion of the topic] and suggested that the committee form a
subcommittee on the topic.
2:07:06 PM
REPRESENTATIVE GRAY posed a question regarding the grand jury
request process. He read out a part of Article 1, Section 8, of
the Alaska Constitution, "Indictment may be waived by the
accused. In that case the prosecution shall be by information."
MR. SKIDMORE confirmed that Representative Gray's understanding
is correct, in that if a person waives indictment then the case
does not go to grand jury.
REPRESENTATIVE GRAY inquired about the indictment waiving
process by posing a hypothetical. He asked when in the process,
if he were a defendant, he would say he would not like a grand
jury and would rather like the case to be just "by information."
if he were a defendant, when in the process would he say he
would not like a grand jury and would rather like the case just
be by information.
MR. SKIDMORE responded that, if he were a defense attorney, he
would never advise a client to waive grand jury. He said that
in his 25 years of experience he has never had an individual
waive grand jury to go to trial. However, he has seen instances
where grand jury is waived to enter a plea, allowing the person
to plea guilty or no contest to a felony charge. He said
waiving at this time makes it so the court system is not forced
to use more resources since the defendant is willing to
acknowledge or admit their plea. He stated that that scenario
is the only case where he sees waiving grand jury coming into
play.
REPRESENTATIVE GRAY asked if allowing plea deals is why the
language in Article 1 Section 8 is in the constitution.
MR. SKIDMORE said he could not answer why the authors of the
constitution chose to use this particular language, but agreed
with Representative Gray that the language is in the
constitution and stated that his explanation to the last
question is how he has seen the section operated in the last 25
years.
2:09:12 PM
MR. SKIDMORE returned to the PowerPoint presentation on slide 12
to describe pretrial motions and evidentiary hearings. He said
that once charges have been filed, there are numerous
opportunities for the defendants to bring charges and "test
things." He said that a motion to suppress or a motion in
limine are actions made to set up rules on how a trial is
conducted. A motion to dismiss charges is for when there might
be an aspect of case that is improper, or when there is
insufficient evidence. Double jeopardy is when an individual
has already been placed in jeopardy by the case before. A
change of venue motion determines where the trial occurs. A
motion for severance is for when there are multiple charges and
it is recognized that the charges, or defendants, shouldn't be
tried together. The slide depicts a fully written out court
motion.
2:10:04 PM
MR. SKIDMORE talked about criminal discovery on slide 13. He
said discovery is the exchange of information relevant to the
charges and evidence that will be presented at trial. He said
the slide depicts what court files used to look like a decade
ago with paper files and compact discs (CDs). He explained that
the constitution obligates prosecution to provide whatever
information it has on a case to the defense for review and
preparation for trial. He pointed out however that in Alaska,
reciprocal discovery is not required, meaning that the defense
is not required to tell the prosecution anything. He said the
Alaska Supreme Court decided that defendants are not required to
tell the state anything about anything the state wants to
present at trial. He noted that if the defense wants to bring
forward an expert witness, that requires prior notification.
Further, he said the defense attorney has to claim or argue a
defense, but do not need to elaborate on how that will be
carried out. He stated that a trial is a search for truth
rather than a competitive sporting contest. He spoke on the
Brady Rule, Brady v Maryland, a U.S. Supreme Court case that
determined that the accused has constitutional right to have all
exculpatory information the prosecutor possesses.
2:11:36 PM
MR. SKIDMORE detailed the types of evidence in criminal
discovery, while on slide 14. He said the evidence includes
dash cams, body cams, mobile devices, and social media. He said
these are areas from which the prosecution can gather
information.
2:12:13 PM
MR. SKIDMORE moved to slide 15 to state that with new types of
evidence come new challenges. He explained that, just because
something is caught on camera, it does not mean everything that
is necessary is caught on camera. For example, he said DOL has
seen homicide cases in which there are arguments about self-
defense but the only thing that is recorded is the gun firing
off camera. He noted methods of discovery and courtroom
presentation. On storage unit disposal, he said the old system
was paper, but on the present system, everything is on computer.
2:13:20 PM
CHAIR VANCE asked, regarding storage until disposal, how long
records are kept. She also asked about the digital age's impact
on that process.
MR. SKIDMORE answered that there is a records retentions
schedule. He said the schedule is only influenced by statute in
cases that have or involve DNA evidence, DNA evidence is kept
for 50 years. He detailed the record retention schedule for
other closed cases: three years for misdemeanors and 10 years
for felonies. He clarified that a closed case is when there is
no appeal and the defendant is no longer on probation; only then
does the "clock start" in terms of disposing the files. He
explained that DOL maintains records post-conviction for future
reference in situations including an appeal or post-conviction
relief. He said DOL does dispose of files at a point in time
because they cannot hold on to them indefinitely.
CHAIR VANCE asked about records for ongoing unsolved cases. She
used a missing person case as an example.
MR. SKIDMORE stated that DOL never destroys records relating to
an open case.
CHAIR VANCE shared her thoughts on the evolution of record
keeping in DOL. She applauded DOL for being able to navigate
the digital age transitions as it relates to case records,
especially having to hold some records for 50 years.
MR. SKIDMORE clarified that it is DNA records that are kept for
50 years. In response to a question about the retention length
for other case records, he explained that, after the case is
closed, records for misdemeanor cases are kept for three to five
years depending on the type of misdemeanor, and records on a
felony case are kept for 10 years. He stressed that if DNA is
involved, DOL does not have the ability to set a records
retention schedule separately because it is determined by
statute.
2:16:18 PM
REPRESENTATIVE GRAY shared his thought that, since paper files
do not need to be kept anymore, keeping records is not as
cumbersome as it used to be. He asked if it would be the same
challenge to keep the records longer.
MR. SKIDMORE answered that he manages a division that sees 25-
30,000 cases a year. He characterized the accumulation of
digital evidence as "watching the terabytes grow." He said the
challenge comes when considering the exponential growth in case
records that occurs over several years, which showed that DOL
cannot hold on to everything indefinitely, even in the digital
age.
2:17:30 PM
MR. SKIDMORE moved to slide 16 to discuss plea bargaining, which
he said is a voluntary agreement from a defendant, and made
between the defense and the prosecution. The plea agreement
involves the defendant agreeing to plead guilty and waive their
rights to a trial, as well as other rights, in return for a
benefit from the prosecution, including dismissal of charges,
sentence recommendation, and an agreement to not seek additional
charges.
2:18:12 PM
MR. SKIDMORE moved to slide 17 to describe the criticisms of
plea bargaining: disparity; defendants who are innocent but are
admitting to the charges to make the charges go away; plea
bargaining as an administrative convenience; the nature of
criminal charges and the fluidity of charges; whether there is
factual basis for the plea; and whether or not plea bargaining
is voluntary. He told members that studies and statistics show
that over 95 percent of all cases are resolved in plea
negotiations, and said that that is not just in Alaska but in
the federal system and every other state system. He stated that
the justice system could and would not function without engaging
in plea negotiations. He noted that there is nothing wrong with
an individual saying they are willing to take ownership and
responsibility for what they have done wrong, and in those
circumstances, he said, the prosecution gives the defendant some
benefit for accepting that responsibility. He said that
scenario is the whole concept behind plea bargaining.
2:19:21 PM
MR. SKIDMORE talked about the criminal justice process on slide
18, including the jury selection and the trial itself. On jury
selection, he said jurors are randomly selected and are a fair
cross section of the community where the crime occurred. He
shared with members that potential jurors are drawn from the
permanent fund dividend (PFD) list, and a simple way to avoid
jury is to just not sign up for a PFD. He explained the term
"voir dire," which is the questioning of prospective jurors to
determine if they have bias. Trials, he said, consist of
opening statements, the prosecution presenting the case-in-
chief, a rebuttal period, a closing, jury deliberations, and
then the verdict.
2:20:13 PM
REPRESENTATIVE GRAY, referring back to the topic of plea
bargains, asked if poor people might plea bargain because being
put on trial is expensive and are pressured to plea bargain so
that the person does not need to pay as much money.
MR. SKIDMORE said the Alaska and Federal Constitutions appoint
counsel for those that cannot pay for counsel themselves. The
cost of trial is borne from the agencies, and so the defendant
does not have to pay. In terms of the effect litigation will
have on the defendant's ability to make a living, he explained
that there's a process where the defendant elects to plea
bargain and accept responsibility because the pain will be worse
if they go to trial. He reiterated that, in general, 95 percent
of cases are resolved through plea negotiations.
2:21:39 PM
REPRESENTATIVE EASTMAN referred to a past bill that came to the
committee dealing with individuals who had their conviction
overturned and whether the person is allowed to receive past
PFDs. He illustrated a hypothetical: someone is innocent of the
charges before them, and do not have much resources so engage in
plea bargaining, but the prosecution does not convict the
person. He asked if there is an individual that reviews
information and gets the person their missing PFDs or their lost
job.
MR. SKIDMORE responded that, in a situation where someone has
been charged and goes to trial, he does not know if there is an
individual that attempts to get the person their job back. He
said that is why the system is designed with probable cause
determination, in that judges review the information, motions
are filed, and, if a felony, the case goes to grand jury. He
said these actions are checks and balances to ensure that before
being entered into the criminal justice system, there is a good
faith basis before moving forward. In terms of retrieving lost
PFDs due to incarceration, he said he does not know whether
someone is eligible to get a PFD, and if they are, how they go
about retrieving the PFDs.
2:23:27 PM
MR. SKIDMORE returned to the PowerPoint to slides 19-22, to
detail the process around "burdens of proof." Slide 19
illustrates the spectrum of certainty and lists the level of
certainty from "absolute certainty" to "mere speculation."
Slide 20 details jury instruction as it relates to proof beyond
a reasonable doubt and what is required. He said that slide 21
covers clear and convincing evidence as well as preponderance of
evidence. He said these are not jury trial determinations but
rather other types of cases. Slide 22 addresses probable cause
and reasonable suspicion.
2:24:20 PM
MR. SKIDMORE moved to slide 23 to talk about the sentencing
process. He explained Alaska Criminal Rule 32.1 to members,
which covers the presentence report for a felony case, and noted
that these can be waived if there is a plea agreement. He spoke
on the sentencing hearing process, which involves the right of
allocution, a judge's consideration of a broad range of
information to determine the appropriate sentence, victims
coming forward with their impact statement and restitution
request, and presumptive sentencing. He noted sentencing
guidelines, which he said are not present in Alaska but rather
in the federal court system.
2:25:42 PM
MR. SKIDMORE ended his presentation on slide 24 to outline what
occurs after a person is convicted. He said that one action is
to appeal, and listed the grounds the appeal can be under:
motion to suppress, double jeopardy, sufficiency of evidence,
speedy trial, violation of constitutional rights, and
consistency of verdicts. He said that if the appellate courts
believe there was a mistake made in a lower court, and it was a
mistake that impacted the outcome of the trial, then the whole
case is undone and the process must be done over. He explained
that the question for prosecutors, after a case is returned, is
whether to continue to seek conviction and retry the case. He
stated that the decision to try again is complicated, with
prosecutors taking several factors, like resources and crime
severity, into account. He noted interlocutory appeals, which
are taken up before a person is convicted. He said that an
appeal can be made on the grounds of improperly determined bail
or a question of competency, without waiting for conviction. He
concluded and opened to any further questions.
2:27:06 PM
REPRESENTATIVE C. JOHNSON asked, in reference to testimony made
at a previous meeting, about a city in Alaska that never filed a
driving while under the influence case because it was known that
the cases, after making it to trial, would be overturned by a
jury. He said the troopers have said that in those cases the
prosecutors say they won't take the case because they know they
can't get a conviction. He shared his thoughts on the system,
in that it is flawed. He asked if there is a method to try
those cases outside of the community.
MR. SKIDMORE said the answer is complicated, but the short
answer is no, there is no mechanism in which the case could be
taken to another community. He said that is because, as a
constitutional right, the defendant is entitled to a jury of
their peers, thus requiring the case to be heard in the
community. He said to Representative C. Johnson that the person
who provided the information he is talking about may be talking
about the concept of jury annulment. He explained that juries
are able to say, no matter what the prosecution presents, "not
guilty." He said juries are generally instructed that they are
supposed to convict if the evidence supports the conviction, but
there is nothing that can be done to force a jury to convict.
He said he has been in communities where it's hard to pin down a
conviction, but he doesn't see that as a reason to not bring
forward the charges. However, he said that prosecutors need to
account for resources available, and if he were the prosecutor
in this circumstance, a public campaign to educate the community
about why certain charges are important would need to be
undertaken. An example he shared was that, when he started,
there was difficulty in getting convictions on domestic violence
cases because people thought it was just an issue between the
two people in their home. He said education is needed in
showing that there are other issues in a conviction like that.
On the example of a driving under the influence charge, he said
such cases did not get much attention and people did not want to
convict, but after the advent of Mothers Against Drunk Driving
and discussions around DUIs, a change was seen in the number of
driving under the influence convictions. He said these are
larger societal issues rather than just a legal system issue.
REPRESENTATIVE C. JOHNSON said that, to him, this is where the
plea bargain would come into play. He asked if there are
standards of plea bargains between communities.
MR. SKIDMORE responded, having worked around the state, there
are different standards. For example, in DUI cases, there were
differing amounts of suspended time imposed. He said the
legislature had adopted mandatory minimums based on the number
of convictions a person has. On plea bargaining, he said that
Representative C. Johnson is correct, in that it is a mechanism
prosecutors use to navigate those areas. He said the department
does try to set standards in these cases, but it is ultimately
up to the individual prosecutor on the agreements they enter
into, unless there is a policy instructing them to get
permission first.
2:31:38 PM
CHAIR VANCE thanked Mr. Skidmore for today's presentation.
2:32:21 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:32 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Crim Justice System 101 - Department of Law 2.24.23.pdf |
HJUD 2/24/2023 1:30:00 PM |