SB 241-POST-CONVICTION DNA TESTING; EVIDENCE  2:41:20 PM CHAIR FRENCH announced the consideration of SB 241. ANNE CARPENETI, Attorney representing the Criminal Division, Department of Law (DOL), related that the governor wanted SB 241 to include two parts. It reprises much of the evidence retention bill from last year and it establishes procedures for dealing with requests for post conviction DNA testing that are based on federal law. The intent is to achieve a balance to allow somebody who is innocent to bring a request for post conviction DNA testing because nobody wants an innocent person to remain in jail. 2:44:28 PM MS. CARPENETI described the following differences between SB 110 - the evidence preservation bill - and SB 241: · SB 241 clarifies that evidence that is not biological material must be kept until the end of all possible litigation in the particular case. SB 110 provides that evidence that is not biological material should be kept until the case is solved. This would work but it would depend on the meaning of "solved." · SB 241 provides that for crimes of sexual assault in the first degree and sexual abuse of a minor in the first degree, the biological material has to be saved until the person is off probation, parole, or any other condition of their conviction. It does not extend to the time that they have to register as a sex offender. SB 110 provides that biological material should be kept for the period of time that the person is required to register as a sex offender. People convicted of sexual assault in the first degree and sexual abuse of a minor in the first degree were required to register for their entire life. · SB 241 and SB 110 have similar remedies but SB 241 provides that a court cannot reverse or vacate a conviction solely on the basis that a police department has not followed the requirements of this new section. The rationale is that this is a new burden and a court shouldn't vacate a conviction because the police department didn't get it right. · SB 241 envisions the task force as a group of people who would adopt standards of procedure for the safe storage and retention of evidence so that it is available for post-conviction relief. A member of the court is on the task force because the court sometimes keeps evidence. CHAIR FRENCH asked Ms. Carpeneti to start with Section 6 and walk through the new DNA testing procedure. 2:48:58 PM MS. CARPENETI explained that the current post-conviction relief statutes are amended to say that a person seeking post- conviction DNA testing because of new evidence must proceed under the new chapter AS 12.73 rather than under the current law, AS 12.72. Section 6 provides the following: · A person convicted of a felony against a person who has not been unconditionally discharged may apply to the superior court for DNA testing. Unconditional discharge is defined in the bill as the release from disability arising under a sentence, including probation and parole, but not sex offender registration. · A person who wants to make application for post-conviction relief must submit to the court an affidavit attesting: · He or she did not commit the offense for which they were convicted or a lesser included offense. · He or she did not solicit another person, or aid and abet the commission of the offense or any lesser included offense. She noted that the purpose of the bill is to allow relief for a person who has been mistakenly convicted. · He or she did not admit or concede guilt in any official proceeding for the offense that was the basis of the conviction. MS CARPENETI suggested the committee amend the bill to say that a guilty plea or nolo contendere plea by itself is not an admission or concession of guilt. But if someone has stated under oath to a parole board that he or she was guilty that should preclude the person from getting post-conviction DNA testing. She cited the Osborne case when that happened and said that DOL thinks that people need to be held responsible for things they say under oath in a court of law. 2:53:40 PM Section 6 further provides: · The applicant must try to get an affidavit from his or her attorney explaining the reasons for not obtaining DNA testing initially. She noted that DOL looks at this as a way to encourage defendants to get DNA testing at the time that they are charged. · Post-conviction DNA testing would be permanently waived if a person made a tactical decision at trial not to proceed with DNA testing. This requirement is similar to federal law. Other post-conviction remedies would continue to be available. MS. CARPENETI described the findings required for the court to order post-conviction DNA testing. · The evidence to be tested must be subject to a chain of custody and retained in a way that ensures that it hasn't been tampered with and is reliable. · The testing must be reasonable and use accepted scientific practices. · The applicant must identify a theory of defense to establish their innocence that is not inconsistent with the theory pursued at trial. · The applicant was convicted and the identity of the perpetrator was an issue in the trial. She noted that this is related to the requirement that the theory the applicant is requesting is not inconsistent with the trial defense. · There is a reasonable probability, in light of the evidence, that the requested DNA testing could conclusively establish that the person is innocent. MS. CARPENETI said the bill also specifically allows the prosecution and defendant to agree to post-conviction testing if it's reasonable. 2:58:23 PM MS. CARPENETI directed attention to page 10, Sec. 12.73.040, on timeliness. There is a presumption that the application is timely if it is brought within three years of the conviction. This may be rebutted if there has been previous application for post-conviction DNA testing. There is also a presumption of untimeliness if the application is brought after three years. This presumption can be rebutted if the applicant was incompetent and that contributed to the delay in filing the application, or for other good cause. She noted that the House bill says that the presumption can be rebutted for a good cause. CHAIR FRENCH said the committee would take the suggestion. MS. CARPENETI said the Innocence Project disagrees, but DOL continues to believe that there is a good reason for making the application sooner rather than later if it's reasonably possible. She said that the bill also amends AS 44.41.035(b), the data bank. The suggestions came primarily from the Department of Public Safety; some is clarifying language. For example, current statutes do not specifically provide that a person who has been found innocent can get their DNA removed from the data bank. The federal government has said that change must be made. MS. CARPENETI reiterated that the taskforce is somewhat different than in SB 110 because the focus was on technical issues rather than broader policy issues. She concluded saying that it's a balancing act to ensure that innocent people aren't in jail and at the same time make sure that people don't get another bite at the apple and continue recreational litigation. CHAIR FRENCH announced he would hold SB 241 in committee for further work. 3:01:38 PM There being no further business to come before the committee, Chair French adjourned the meeting at 3:01 p.m.