SB 188-CRIM PROCEDURE; CHANGE OF NAME  3:40:51 PM CHAIR SHOWER announced the consideration of SENATE BILL NO. 188 "An Act relating to criminal law and procedure; relating to a petition for a change of name for certain persons; relating to procedures for bail; relating to consecutive sentencing for violation of condition of release; relating to the duty to register as a sex offender; amending Rules 6(r) and 47, Alaska Rules of Criminal Procedure; amending Rule 12, Alaska Delinquency Rules; amending Rule 84, Alaska Rules of Civil Procedure; and providing for an effective date." 3:41:10 PM JOHN SKIDMORE, Deputy Attorney General, Criminal Division, Department of Law, Anchorage, Alaska, stated that SB 188 does four primary things to protect victims. He described three of the four points. 1) Name Changes People under the control of the Department of Corrections (DOC) or that must register as a sex offender are required to notify DOC, the Department of Public Safety (DPS), and the victims of any name changes. This addresses the complaints victims have had that changing one's name can manipulate the system to hide on the sex offender registry or when their status changed in the Department of Corrections. The court also has new standards to evaluate whether or not the name change is appropriate. 2) Bail Provisions in the bill about bail seek to address the significant number of defendants who are released pretrial with little or not bail. The problem is that a significant number of defendants who are released on their own recognizance (OR), violate the terms of their bail repeatedly and the courts have not adjusted bail to reflect the additional violations. SB 188 proposes to expand the existing presumption that the defendant poses a danger to the community if they violate conditions of bail. This should suggest to the court that it adjust subsequent bail to reflect the additional violations. 3) Grand Jury Mr. Skidmore described the court rule changes as the most important part of the bill. First, hearsay would be allowed at grand jury. This stems from the 2019 case, State v. Powell, in which the court indicated that presenting a recorded video statement of a victim of child sexual abuse to police and investigators was not admissible at grand jury without the child testifying at grand jury as well. The Department of Law and the administration's position on this issue is that the ruling in Powell was fundamentally contrary to the bill that passed in 2005 that allowed hearsay to be presented in those circumstances. In the Powell case the court indicated that it thought the rule change applied to trials and not grand jury because one of the requirements it found was that the victim would be subject to cross examination and the court found that the victim is never subject to cross examination at grand jury because the defendant's counsel is never present at grand jury. The court further stated that if the legislature had intended to allow hearsay at grand jury, it should have amended the court rules to allow such information at grand jury. SB 188 amends the court rules to allow hearsay at grand jury. This protects victims in any criminal case from being retraumatized. Additionally, this change will help alleviate the significant backlog of cases that resulted when grand jury and trial proceedings were shut down due to the global health pandemic. Research indicates that the federal government and 32 states allow hearsay at grand jury. He highlighted that when the Alaska Constitution was enacted, hearsay was allowed at grand jury, so it is constitutional. In 1973 the Alaska Supreme Court adopted a rule to prohibit certain types of hearsay and SB 188 changes that rule. 4) Plain-Error Rule [Mr. Skidmore did not discuss the Plain- Error Rule.] CHAIR SHOWER listed the individuals who were available to answer questions. 3:49:08 PM NANCY MEADE, General Counsel, Office of the Administrative Director, Alaska Court System, Anchorage, Alaska, stated that while SB 188 is problematic in a number areas, she would focus on just two. First, the Court System believes it would be very problematic to implement Section 6. The court does not believe it would be more efficient to require the court to issue written findings. She referenced a document in the bill packets that shows that about 20,000 bail orders are issued each year, and each of those would need to have written reasons for each of the findings. The number of bail hearings has also been about 20,000 per year. She directed attention to the blank four-page bail order in the packets to demonstrate that there are dozens of things the court can order by checking different boxes. MS. MEADE explained that when somebody is arrested and arraigned, the prosecutor typically seeks to have a substantial number of conditions imposed if the defendant is to be released. The defense attorney or public defender will typically want fewer restrictions on the defendant. She said she finds it ironic that SB 188 would require the court to make a written finding for everything that is ordered when it is the prosecutor that is asking for most of the conditions. She maintained that the reason is generally very obvious when a box is checked. For example, if there is a domestic violence condition that says the defendant shall not return to a specific residence, the reason is clear. The defendant presents a danger to the person at that residence. MS. MEADE stated that the requirement in Section 6 is unnecessary and it would cripple the Court System. She highlighted that she had yet to submit a fiscal note but it would be shocking, because new judges and clerks would be needed to handle the added work. 3:53:38 PM MS. MEADE said the Court System's second concern relates to the criminal court rule changes in the bill. She explained that there are rules of procedure that let the attorneys or self- represented persons know how to get the substantive rights the legislature gives them. The 13-member Criminal Rules Committee meets four or five times a year and they are experts in criminal procedure and are well-qualified to talk through any proposed rule changes, such as whether the hearsay rule should be changed as proposed in the bill. She said the technical changes to the rules proposed in Sections 15 and 16 that redefine plain error are difficult to understand and it seems that the Criminal Rules Committee is a more appropriate forum to handle the proposed rule changes than the legislature. She said she did not have a view about whether the court rule changes were a good or bad idea or whether they were constitutional, but she would say that it deserves a lot of attention. MS. MEADE noted that she also included two Supreme Court cases in the packets that speak to the substance of the hearsay rule and whether it should be allowed at grand jury. Although Mr. Skidmore said it was not a constitutional issue, she said the Wassillie v. State case has pages that analyze the Constitutional Convention minutes and why the grand jury rule is important. It is considered a protection to keep innocent people from being brought to trial. She included the cases to illustrate the complexity of the issue and that it needs to be explored in detail, preferably by people who work with court rules daily. MS. MEADE suggested that the question about court rule changes could be resolved in another way. She pointed out that the rule changes proposed in the bill were never submitted to the Criminal Rules Committee. Furthermore, there is a fulltime court rules attorney whose job it is to work with the Criminal Rules Committee to put things in the appropriate format and once a month present to the Supreme Court recommendations and thoughts about rule changes. That did not happen with the rule changes presented in the bill, but it could, she said. 3:58:36 PM CHAIR SHOWER asked for an explanation of the process for the administration to work with the Criminal Rules Committee on these matters. MS. MEADE replied it can be very simple because anybody can contact the court rules attorney to suggest or discuss a rule change. Also, the Department of Law has two members on the Criminal Rules Committee who can suggest a rule change at any of the meetings and the court rules attorney will open a file and it will be discuss at subsequent meetings. CHAIR SHOWER asked if rule changes can happen outside the legislative process. MS. MEADE answered yes. The Rules of Court are procedural, not substantive, so the Supreme Court adopts them without legislative action. 4:00:13 PM SENATOR HOLLAND noted that he sees Wassillie v. State in the documents but not the other Supreme Court case. MS. MEADE said State v. Gieffels is the 1976 case that speaks to the protections the grand jury provides and adopts the Alaska Bar Association (ABA) standards for how prosecutors present cases to grand juries, which is basically the court rule. CHAIR SHOWER advised that the cases were available on BASIS but were not printed for the bill packets. SENATOR REINBOLD stated that she always favors efforts to speed up the prosecution of sexual assault cases so perpetrators are put behind bars more quickly. However, she had never seen a bill with so many proposed court rule changes and she would like further explanation of the Criminal Rules Committee and its processes. 4:02:17 PM MS. MEADE stated that the constitution gives the legislature the right to change court rules with a two-thirds majority vote. That typically happens when the legislature changes a substantive law that incidentally changes a court rule correlated to that substantive law. That is what needs to be passed by a two-thirds majority vote, and it typically is. What is unusual is to have a bill such as this that directly changes court rules, although it is permitted by the constitution. MS. MEADE explained that the Criminal Rules Committee is one of nine rule committees that discuss procedural rule changes and make recommendations to the Supreme Court. The Supreme Court appoints the members of these committees according to their expertise. The committees tend to be a well-rounded group of people who discuss whether proposals for a rule change should be recommended to the Supreme Court to ultimately be adopted as a procedural rule. She noted that a prosecutor is among the members of the Criminal Rules Committee and that attorney might propose this change to the hearsay rule and the committee would talk it over and come up with a recommendation. The court rules attorney then takes that recommendation, as well as any recommendations from the other eight rules committees to the next monthly meeting with the Supreme Court. The attorney briefs the court on what the different rules committees discussed and whether or not they decided to put forward a recommendation or just wanted to highlight a minority view. The Supreme Court then has the chance to adopt any rule changes after it goes through this process. SENATOR REINBOLD asked if there were members of the administration that could already do this. She also asked if the Criminal Rules Committee process was similar to the process the legislature follows based on Mason's Manual of Legislative Procedure. MS. MEADE replied the rules committees sit around a conference table and discuss things in a less formal, more conversational way than the legislature does. SENATOR REINBOLD restated her question. 4:06:34 PM MS. MEADE said two Department of Law attorneys and an advocate from the Office of Victims' Rights are members of the committee. She said she wasn't clear what Senator Reinbold meant when she asked if the administration could do this. SENATOR REINBOLD indicated her question was answered. CHAIR SHOWER offered his perspective that the question was whether those members had the ability to suggest the changes proposed in the bill and his understanding is that they do. MS. MEADE said that's correct. SENATOR REINBOLD said the second point was to compare the court rules to the procedures the legislature follows based on Mason's. It was an effort to draw a parallel between two different branches of government. CHAIR SHOWER asked Ms. Meade if she would provide the fiscal note because it will factor into the bill's progression. 4:07:55 PM MS. MEADE said she estimated that the court would need new judges in each of the 10 major courts and each judge with law clerks and staff costs about $700,000 per year. There would also be capital expense because there aren't any courtrooms available for additional judges. The cost would be in the $7 to $10 million range. CHAIR SHOWER summarized that the estimated recurring cost would be in the $7 to $10 million range and then there would be a one- time capital cost for facilities. MS. MEADE agreed. CHAIR SHOWER said he would talk to the members to ask if they wanted anything more formal than the estimate. He asked Lisa Purinton if she had any comments on the bill. 4:09:15 PM LISA PURINTON, Chief, Criminal Records and Identification Bureau, Division of Statewide Services, Department of Public Safety, Anchorage, Alaska, said she had nothing to add. CHAIR SHOWER asked Renee McFarland if she had any comments on the bill. 4:09:31 PM RENEE MCFARLAND, Deputy Public Defender, Appellate Division, Public Defender Agency, Anchorage, Alaska, said she was available to answer questions but had no comments at this time. 4:10:04 PM CHAIR SHOWER opened public testimony on SB 188. 4:10:24 PM CHRISTINE HUTCHINSON, representing self, Kenai Peninsula, Alaska, stated that she felt compelled to point out that a primary function of a grand jury is to protect the people from corrupt elected and appointed officials. She said [Mr. Skidmore] is familiar with the efforts to prevent a grand jury from hearing things it needs to hear to help citizens defend themselves from bureaucracy. She maintained that making hearsay part of the testimony and increasing efficiencies by saving money and time does nothing to restore the pain and suffering of the people when they have no recourse. MS. HUTCHINSON agreed with Ms. Meade that the proposed changes should have gone to the Criminal Rules Committee so they could be discussed by the people who deal with criminal rules. She stated opposition to SB 188 and suggested scrapping hearsay and creating a grand jury that does what it was originally intended to do, which is to protect the people. 4:13:46 PM QUEEN A. PARKER, representing self, Sterling, Alaska, recounted the duties of the grand jury during the hearing on SB 188. She stated that the law must apply equally to all people and the evidence of crime and corruption must be seen and investigated by an independent Alaskan grand jury so that those in authority will be held accountable. She cited the right of all Alaskans to report crime to the grand jury and the right of the grand jury to investigate those crimes as guaranteed by art. I, sec. 8 of the state constitution; the duty of inquiry into crimes and general powers under AS 12.40.030; the obligation of a juror to disclose knowledge of crime under AS 12.40.040; jury tampering under AS 11.56.590; the transcript from the Alaska Constitutional Convention that talks about the power of grand juries to inquire into the willful misconduct of public officers; and the Alaska grand jury handbook that clarifies that the statute authorizes a juror to ask the grand jury to investigate a crime that the district attorney has not presented to them. MS. PARKER concluded, "We want justice and I hope to God that our representatives that are in authority will represent us in these situations." 4:16:11 PM MICHAEL GARVEY, Advocacy Director, American Civil Liberties Union of Alaska, Anchorage, Alaska, voiced serious concerns about SB 188 eroding the due process rights of criminal defendants and others who are erroneously convicted of crimes. In particular, Sections 15 and 16 would impede correcting errors made during the trial process. He maintained that those sections would change the criminal appeals system by valuing finality of conviction over the fairness of those convictions. MR. GARVEY emphasized that fairness at trial is a cornerstone of due process, particularly for individuals who do not have the resources to fight unjust convictions. He said reversing errors made during trial is already difficult and SB 188 will make it more so. He pointed out that Section 14 would markedly increase the amount of hearsay allowed at grand jury, which would undercut a grand jury's ability to ask questions and assess the truthfulness of the testimony. Defendants already cannot present evidence at grand jury, and this change would further stack the deck and allow cases to advance when the evidence is questionable. He stated that these provisions and the language that would have reduced the number of unconvicted people who are released on bail before trial, would erode due process rights. MR. GARVEY stated that supporting victims does not have to come at the expense of due process rights. Giving prosecutors more tools to put people in prison unjustly and undercut defendants' ability to maintain their innocence does not represent this value. For these reasons ACLU Alaska opposes SB 188. 4:18:22 PM JOAN CORR, representing self, Soldotna, Alaska, stated that it is a travesty to think that hearsay could be allowed as evidence. She maintained that there are likely many examples of this being used against innocent people. She agreed with a previous caller who suggested the committee eliminate all reference to the grand jury from the bill. She concluded, "I want the rights of the grand jury restored instead being told what they can and cannot do." 4:19:55 PM MIKE COONS, representing self, Palmer, Alaska, thanked Senator Reinbold for her last questions and suggested that the problems with the justice system stem from the fact that "we have a bunch of lawyers that can change rules when it's supposed to be the legislature that changes the rule through legislation and bills." He insinuated that the Criminal Rules Committee was nothing more than an extension of Legislative Council that "doesn't give a hoot and a holler about what We the People say; it's only what the lawyers say." As much as he does not agree with the ACLU on most matters, he was leaning towards a "No" on SB 188. He described SB 188 as a convoluted mess, which he always opposes. 4:21:42 PM CHARLES MCKEE, representing self, Anchorage, Alaska, stated that he faxed an application for the permanent fund [dividend]. It had a notary witness and his signature on the bottom to indicate who he is and his lack of confidence in the legislative body and the voting aspect of the Bar Association. He continued to testify off topic including that there was no citation for the reason that he was arrested and booked in the Palmer jail. 4:26:00 PM CHAIR SHOWER closed public testimony on SB 188. He asked Mr. Skidmore to provide closing comments. 4:26:22 PM MR. SKIDMORE stated that the Gieffels and Wassillie cases that Ms. Meade cited are illustrative of why these court rules should change. The Gieffels case was handed down in 1976, three years after the Supreme Court changed the rules to say that hearsay wouldn't be admissible. In that case the defense argued that the indictment should be dismissed because the state had presented hearsay from doctors who were not available to appear in person. Subsequent to that case, the rules were changed to allow telephonic testimony. He restated that Gieffels illustrates that when the courts hand down certain rulings, it is appropriate for the legislature to step in and fix policy issues. MR. SKIDMORE agreed with Ms. Meade that the Criminal Rules Committee can meet to look at rules. However, he suggested that it was out of the ordinary for the committee to meet and overrule something that the courts had already handed down as case law. Furthermore, he said the committee meets just three or four times a year and takes a very long time to review and talk about rules. He said the legislature is a more efficient process. MR. SKIDMORE advised that a bill that originally allowed hearsay at grand jury began in the legislature. That was challenged in State v. Powell and an express statement in that case was that if the legislature wants to allow hearsay, it should change other court rules. That is what SB 188 proposes to do, he said, and Ms. Meade indicated it was appropriate. MR. SKIDMORE said the administration agrees with the aspect of the Wassillie case that talks about the important role the grand jury plays in the protection of constitutional rights. However, the administration wants it to be in a more logical and commonsense manner that is consistent with what 32 other states and the federal government do by allowing hearsay at grand jury. Alaska grand juries already consider a significant number of types of hearsay, but it still presents challenges and problems that could be easily remedied by what this bill proposes. He recounted the particulars of the case and that the Supreme Court said the case needed to be overturned because a report introduced at grand jury violated a court rule that hearsay was not permitted at that stage. It is that type of inefficiency the bill seeks to address. 4:31:57 PM MR. SKIDMORE said he appreciates Senator Reinbold's concerns about the number of pages in the bill that address court rules, but he wanted to point out that the result will be to simplify Criminal Rule 6 that addresses grand jury. The other pages address the Plain-Error Rule. He noted that the grand jury decision in the Wassillie case was overturned based on a concept in the Plain-Error Rule. He acknowledged that the Plain-Error Rule is a more complicated rule and he would understand if this committee was more comfortable leaving it to lawyers to sort out. By contrast, he said grand jury is not complicated; it is a simple, common sense solution to make things better for victims and to make the system work more efficiently. MR. SKIDMORE submitted that SB 188 does not say that grand jury isn't still a protection for the people. All the protections are still present. SB 188 just provides a different way to present evidence, which makes it easier for victims and is consistent with what most other states use. MR. SKIDMORE said he appreciates the concerns expressed earlier from the Kenai Peninsula. He emphasized that those issues must and will be addressed, but SB 188 was not the right vehicle because that's not what the bill is about. 4:35:34 PM SENATOR REINBOLD asked 1) if the grand jury is there to protect the people; and 2) if he could give a concise update and what is happening with the grand jury in Kenai. MR. SKIDMORE confirmed that grand juries are to protect the people. However, that protection is to ensure that the evidence that is reviewed warrants an indictment so the case can go forward to trial. He said he couldn't discuss the ongoing litigation further other than to say that he hopes resolution will be soon. 4:37:10 PM CHAIR SHOWER found no further questions or comments and stated he would hold SB 188 in committee for future consideration.