ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         April 6, 2009                                                                                          
                           2:31 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Jay Ramras, Chair                                                                                                
Representative John Coghill                                                                                                     
Representative Carl Gatto                                                                                                       
Representative Bob Lynn                                                                                                         
Representative Max Gruenberg                                                                                                    
Representative Lindsey Holmes                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Nancy Dahlstrom, Vice Chair                                                                                      
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 36                                                                                        
"An Act  relating to ballot initiative  proposal applications and                                                               
to ballot initiatives."                                                                                                         
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
HOUSE BILL NO. 9                                                                                                                
"An  Act  relating  to murder;  authorizing  capital  punishment,                                                               
classifying murder in  the first degree as a  capital felony, and                                                               
allowing  the  imposition  of  the   death  penalty  for  certain                                                               
murders;   establishing   sentencing   procedures   for   capital                                                               
felonies; and amending Rules 32,  32.1, and 32.3, Alaska Rules of                                                               
Criminal  Procedure, and  Rules 204,  209, 210,  and 212,  Alaska                                                               
Rules of Appellate Procedure."                                                                                                  
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 36                                                                                                                   
SHORT TITLE: INITIATIVES: CONTRIBUTIONS/PROCEDURES                                                                              
SPONSOR(S): REPRESENTATIVE(S) JOHANSEN, MILLETT, WILSON                                                                         
                                                                                                                                
01/20/09       (H)       PREFILE RELEASED 1/9/09                                                                                
01/20/09       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/20/09       (H)       STA, JUD                                                                                               
03/25/09       (H)       SPONSOR SUBSTITUTE INTRODUCED                                                                          
03/25/09       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/25/09       (H)       JUD, FIN                                                                                               
04/06/09       (H)       JUD AT 8:00 AM CAPITOL 120                                                                             
04/06/09       (H)       Heard & Held                                                                                           
04/06/09       (H)       MINUTE(JUD)                                                                                            
04/06/09       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 9                                                                                                                    
SHORT TITLE: CAPITAL PUNISHMENT                                                                                                 
SPONSOR(S): REPRESENTATIVE(S) CHENAULT                                                                                          
                                                                                                                                
01/20/09       (H)       PREFILE RELEASED 1/9/09                                                                                
01/20/09       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/20/09       (H)       JUD, FIN                                                                                               
02/23/09       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/23/09       (H)       Heard & Held                                                                                           
02/23/09       (H)       MINUTE(JUD)                                                                                            
02/25/09       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/25/09       (H)       Heard & Held                                                                                           
02/25/09       (H)       MINUTE(JUD)                                                                                            
03/02/09       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/02/09       (H)       Heard & Held                                                                                           
03/02/09       (H)       MINUTE(JUD)                                                                                            
03/23/09       (H)       JUD AT 8:00 AM CAPITOL 120                                                                             
03/23/09       (H)       Heard & Held                                                                                           
03/23/09       (H)       MINUTE(JUD)                                                                                            
03/23/09       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/23/09       (H)       Heard & Held                                                                                           
03/23/09       (H)       MINUTE(JUD)                                                                                            
03/30/09       (H)       JUD AT 8:00 AM CAPITOL 120                                                                             
03/30/09       (H)       -- MEETING CANCELED --                                                                                 
04/06/09       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
JASON BRUNE, Executive Director                                                                                                 
Resource Development Council for Alaska, Inc. (RDC)                                                                             
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of SSHB 36.                                                                         
                                                                                                                                
JEANINE ST. JOHN, President                                                                                                     
Alaska Support Industry Alliance ("the Alliance")                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of SSHB 36.                                                                         
                                                                                                                                
CHRISTINA ELLINGSON, Assistant Director                                                                                         
Alaska Public Offices Commission (APOC)                                                                                         
Department of Administration (DOA)                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Responded to  questions during discussion of                                                             
SSHB 36.                                                                                                                        
                                                                                                                                
GLENN M. PRAX                                                                                                                   
North Pole, Alaska                                                                                                              
POSITION  STATEMENT:   Expressed  concerns  during discussion  of                                                             
SSHB 36.                                                                                                                        
                                                                                                                                
SUSAN S. McLEAN, Chief Assistant Attorney General                                                                               
Legal Services Section                                                                                                          
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:     Provided   comments  and   responded  to                                                             
questions during discussion of proposed amendments to HB 9.                                                                     
                                                                                                                                
GERALD LUCKHAUPT, Attorney                                                                                                      
Legislative Legal Counsel                                                                                                       
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency (LAA)                                                                                                
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:    Speaking  as the  drafter,  responded  to                                                             
questions during discussion of proposed amendments to HB 9.                                                                     
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
2:31:45 PM                                                                                                                    
                                                                                                                                
CHAIR JAY  RAMRAS called the  House Judiciary  Standing Committee                                                             
meeting  to order  at 2:31  p.m.   Representatives Ramras,  Lynn,                                                               
Gruenberg,  and  Coghill  were  present at  the  call  to  order.                                                               
Representatives Gatto  and Holmes arrived  as the meeting  was in                                                               
progress.                                                                                                                       
                                                                                                                                
HB 36 - INITIATIVES: CONTRIBUTIONS/PROCEDURES                                                                                 
                                                                                                                                
2:32:11 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  first order of business would be                                                               
SPONSOR SUBSTITUTE  FOR HOUSE  BILL NO. 36,  "An Act  relating to                                                               
ballot   initiative   proposal   applications   and   to   ballot                                                               
initiatives."                                                                                                                   
                                                                                                                                
2:32:34 PM                                                                                                                    
                                                                                                                                
JASON  BRUNE, Executive  Director,  Resource Development  Council                                                               
for  Alaska,  Inc.  (RDC),  after mentioning  that  he  would  be                                                               
testifying  in   support  of  SSHB  36,   provided  members  with                                                               
information about  the RDC.  He  then said that although  the RDC                                                               
may question the  appropriateness and the role  of the initiative                                                               
process  as  a  means  of  governing,  the  RDC  appreciates  the                                                               
democratic rights  of Alaskans  to change  state law  through the                                                               
initiative process.   Over the last few years,  however, a number                                                               
of proposed initiatives  have been brought forward  that have not                                                               
had the best interests of the  state or its citizens in mind, and                                                               
their sponsors  have used tactics during  the signature-gathering                                                               
phase that  mislead the  public and  misconstrued the  issues and                                                               
impacts at play,  he opined.  The RDC believes  that openness and                                                               
transparency must  be at  the forefront  of good  government, and                                                               
SSHB 36  will require  both public  and legislative  hearings for                                                               
initiatives; this  is a  good idea,  particularly given  that the                                                               
unintended consequences of laws  the legislature attempts to pass                                                               
are  usually   vetted  during   the  numerous   hearings,  public                                                               
testimony, and  floor debates  that are  part of  the legislative                                                               
process.                                                                                                                        
                                                                                                                                
MR. BRUNE noted  that legislators, the people who  are elected to                                                               
pass  state laws,  are required  to disclose  how they  raise and                                                               
spend money.   Why shouldn't  those who are attempting  to change                                                               
state law through the initiative  process also be subject to that                                                               
same standard?  Why shouldn't  they, too, be required to disclose                                                               
the source of their funding  during the signature-gathering phase                                                               
of  the initiative  process?   "This"  openness and  transparency                                                               
will  bring  to light  the  agendas  of initiative  sponsors,  he                                                               
remarked,  adding  that  the  RDC  would  very  much  oppose  any                                                               
amendment  that   would  preclude  "foreign"   contributions  for                                                               
initiatives,  because a  number  of foreign  companies invest  in                                                               
Alaska  and  employ   Alaskans  and  so  should   be  allowed  to                                                               
participate  in the  initiative process.   He  suggested that  in                                                               
addition to  requiring signature gatherers to  carry the entirety                                                               
of a  proposed initiative  with them, SSHB  36 should  be amended                                                               
such that signature gatherers would  also be required to tell the                                                               
truth.                                                                                                                          
                                                                                                                                
MR. BRUNE opined,  "We must bring openness  and transparency back                                                               
to  this  process,"  and  noted   that  SSHB  36  would  preclude                                                               
signature gatherers from collecting  signatures for more than one                                                               
initiative at a  time, adding that he's  seen signature gatherers                                                               
blur the  lines between different  initiatives for  which they're                                                               
collecting   signatures,  opining   that  such   behavior  is   a                                                               
disservice  to  the public;  SSHB  36  would prevent  intentional                                                               
muddying  of the  waters.    In conclusion,  he  said  he is  not                                                               
confident  that  signature   gatherers  will  police  themselves,                                                               
opined  that standards  must  be instituted  to  ensure a  candid                                                               
initiative process, characterized SSHB 36  as an important bill -                                                               
both for  the state  and for  the RDC's members  - and  urged the                                                               
committee to support SSHB 36.                                                                                                   
                                                                                                                                
CHAIR  RAMRAS, in  response  to comments  about  the 2006  ballot                                                               
initiative  regarding  cruise   ship  taxation,  regulation,  and                                                               
disclosure,  offered his  belief  that when  that initiative  was                                                               
approved  for placement  on the  ballot, the  lieutenant governor                                                               
failed  in  his duty  to  restrict  the  initiative to  a  single                                                               
subject, and  that that's  what lead  to any  confusion regarding                                                               
what that initiative was about.                                                                                                 
                                                                                                                                
MR. BRUNE, in  response to questions, reiterated  his belief that                                                               
foreign companies  that invest in  Alaska have a  vested interest                                                               
in  the initiative  process, and  offered his  understanding that                                                               
currently foreign  companies and their employees  - regardless of                                                               
where they reside - can contribute to initiatives.                                                                              
                                                                                                                                
2:39:23 PM                                                                                                                    
                                                                                                                                
JEANINE  ST. JOHN,  President, Alaska  Support Industry  Alliance                                                               
("the Alliance"),  provided information  about the  Alliance, and                                                               
relayed that she  would be speaking in support SSHB  36, and that                                                               
the  Alliance supports  the constitutional  right of  Alaskans to                                                               
utilize the  initiative process  when they  believe they  are not                                                               
being effectively represented.   However, members of the Alliance                                                               
are quite concerned  about what she characterized  as the abusive                                                               
use of  the ballot  initiative process.   She offered  her belief                                                               
that SSHB  36 will strengthen  that process by ensuring  that the                                                               
public is clearly aware of what  she called "the true intent" and                                                               
funding sources  of any  initiative.   She said  it's unfortunate                                                               
that  the  initiative  process  has  become  a  way  for  special                                                               
interests  to manipulate  state law,  and expressed  appreciation                                                               
for the  joint prime sponsors'  intent to "amend the  process and                                                               
provide a truly open and transparent initiative process."                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG asked what effect Section 2 would have.                                                                
                                                                                                                                
2:43:07 PM                                                                                                                    
                                                                                                                                
CHRISTINA  ELLINGSON, Assistant  Director, Alaska  Public Offices                                                               
Commission  (APOC), Department  of Administration  (DOA), offered                                                               
her  understanding  that  Section  2  just  requires  [initiative                                                               
sponsors] to register as a group  [with the APOC] prior to making                                                               
an  expenditure;   currently  initiative  sponsors   are  already                                                               
required to  register [with  the APOC].   In response  to another                                                               
question,  she offered  her belief  that Section  3 won't  affect                                                               
existing limitations  or who can contribute  to ballot initiative                                                               
groups,  and that  AS 15.13.065  addresses ballot  initiatives in                                                               
municipal elections.                                                                                                            
                                                                                                                                
MS. ELLINGSON,  in response to further  questions, indicated that                                                               
Section 5  simply mirrors language  currently in  AS 15.13.110(e)                                                               
and  speaks to  the  issue  of quarterly  reports,  and that  the                                                               
proposed  changes  to  the   definitions  of  "contribution"  and                                                               
"expenditure"  are  intended  to  ensure  that  reporting  occurs                                                               
earlier  in the  ballot initiative  process and  shouldn't affect                                                               
the nature of donations or spending.                                                                                            
                                                                                                                                
The committee took an at-ease from 2:47 p.m. to 2:48 p.m.                                                                       
                                                                                                                                
MS. ELLINGSON,  in response  to a  further question,  offered her                                                               
understanding that  Section 1 pertains  to when a person  makes a                                                               
contribution, whereas Sections 6  and 7, respectively, change the                                                               
definitions of "contribution" and "expenditure".                                                                                
                                                                                                                                
2:50:01 PM                                                                                                                    
                                                                                                                                
GLENN M. PRAX  indicated that he has some concerns  with SSHB 36,                                                               
and opined that the recent  changes to Alaska's ballot initiative                                                               
laws have made the process much  more difficult.  He relayed that                                                               
when he was actively involved  in the initiative process a number                                                               
of  years   ago,  "citizen-driven   groups"  [were   the  primary                                                               
participants],  but such  groups seem  to  be obsolete  now.   He                                                               
cautioned the  committee to be  careful that the bill  doesn't go                                                               
further  than  necessary  or make  the  initiative  process  only                                                               
accessible to "the targeted groups."   He surmised that requiring                                                               
initiative sponsors to hold public  hearings on initiatives would                                                               
result in a  perfunctory exercise that doesn't  provide the value                                                               
expected.   In conclusion, he  said he  does think that  there is                                                               
some  value  in  providing  more   transparency  with  regard  to                                                               
contributors,  but again  cautioned  against going  too far  with                                                               
SSHB 36  and implementing  things that won't  really work  out as                                                               
expected.                                                                                                                       
                                                                                                                                
CHAIR RAMRAS closed public testimony on SSHB 36.                                                                                
                                                                                                                                
[SSHB 36 was held over.]                                                                                                        
                                                                                                                                
HB 9 - CAPITAL PUNISHMENT                                                                                                     
                                                                                                                                
2:53:46 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  final order of business would be                                                               
HOUSE  BILL  NO.  9,  "An Act  relating  to  murder;  authorizing                                                               
capital punishment, classifying  murder in the first  degree as a                                                               
capital felony, and allowing the  imposition of the death penalty                                                               
for  certain  murders;  establishing  sentencing  procedures  for                                                               
capital felonies; and  amending Rules 32, 32.1,  and 32.3, Alaska                                                               
Rules of  Criminal Procedure, and  Rules 204, 209, 210,  and 212,                                                               
Alaska Rules of Appellate Procedure."   [Before the committee was                                                               
the  proposed committee  substitute (CS)  for HB  9, Version  26-                                                               
LS0036\E, Luckhaupt, 2/18/09, which had  been adopted as the work                                                               
draft on 2/23/09.]                                                                                                              
                                                                                                                                
CHAIR RAMRAS noted that public testimony  on HB 9 had been closed                                                               
[during a previous meeting on the bill].                                                                                        
                                                                                                                                
CHAIR   RAMRAS  then   turned   the   committee's  attention   to                                                               
Amendment 1,  labeled  26-LS0036\E.7, Luckhaupt,  3/23/09,  which                                                               
read:                                                                                                                           
                                                                                                                                
     Page 15, line 11, following "fire fighter,":                                                                               
          Insert "emergency medical technician, paramedic,                                                                      
     ambulance attendant,"                                                                                                      
                                                                                                                                
2:57:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GATTO made a motion to adopt Amendment 1.                                                                        
                                                                                                                                
REPRESENTATIVE COGHILL objected for the purpose of discussion.                                                                  
                                                                                                                                
REPRESENTATIVE  GATTO indicated  that Amendment  1 would  provide                                                               
the   same   protection   to   emergency   medical   technicians,                                                               
paramedics,  and  ambulance  attendants  as  the  bill  currently                                                               
provides  to   peace  officers,  firefighters,   and  corrections                                                               
employees.                                                                                                                      
                                                                                                                                
REPRESENTATIVE COGHILL removed his objection.                                                                                   
                                                                                                                                
CHAIR RAMRAS announced that Amendment 1 was adopted.                                                                            
                                                                                                                                
2:58:11 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS  then turned the committee's  attention to Amendment                                                               
2, labeled 26-LS0036\E.6, Luckhaupt, 3/23/09, which read:                                                                       
                                                                                                                                
     Page  1,  line 4,  following  the  first occurrence  of                                                                    
     "Rules":                                                                                                                 
          Insert "16,"                                                                                                        
                                                                                                                                
     Page 17, following line 29:                                                                                                
     Insert new material to read:                                                                                               
          "Sec. 12.58.070. Discovery. (a) Except as                                                                           
     provided in (b) of this  section, Rule 16, Alaska Rules                                                                    
     of  Criminal Procedure,  applies  to  discovery in  the                                                                    
     penalty phase  of a capital  felony prosecution  if the                                                                    
     prosecution is seeking the death penalty.                                                                                  
          (b)  Thirty days before the guilt phase of a                                                                          
     capital  felony   case  is  scheduled  to   begin,  the                                                                    
     prosecution  and  the  defense  shall  provide  to  the                                                                    
     opposing party  a list of witnesses,  other than expert                                                                    
     witnesses,  that the  party is  likely to  call at  the                                                                    
     penalty phase  if the  defendant is  found guilty  of a                                                                    
     charge that  is the  foundation for the  death penalty.                                                                    
     In  addition to  the witness  lists, the  parties shall                                                                    
     include the witnesses'  written or recorded statements,                                                                    
     a summary  of any  other statements,  and a  summary of                                                                    
     the testimony the witness will provide the court.                                                                          
          (c) Nothing in this section affects discovery                                                                         
     related  to  expert  witnesses under  Rule  16,  Alaska                                                                    
     Rules of Criminal Procedure."                                                                                              
                                                                                                                                
     Page 23, following line 1:                                                                                                 
          Insert a new subsection to read:                                                                                      
          "(c)  AS 12.58.070, added by sec. 21 of this Act,                                                                     
     has the  effect of modifying  Rule 16, Alaska  Rules of                                                                    
     Criminal Procedure,  by providing  for the  exchange of                                                                    
     the  names  of  witnesses, their  written  or  recorded                                                                    
     statements,  and summaries  of their  testimony by  the                                                                    
     prosecution  and defense  for  the penalty  phase of  a                                                                    
     capital felony death penalty prosecution."                                                                                 
                                                                                                                                
The committee took an at-ease from 2:59 p.m. to 3:00 p.m.                                                                       
                                                                                                                                
CHAIR RAMRAS made a motion to adopt Amendment 2.                                                                                
                                                                                                                                
REPRESENTATIVE HOLMES objected.                                                                                                 
                                                                                                                                
3:00:20 PM                                                                                                                    
                                                                                                                                
SUSAN  S.   McLEAN,  Chief  Assistant  Attorney   General,  Legal                                                               
Services  Section, Criminal  Division, Department  of Law  (DOL),                                                               
explained  that the  purpose of  Amendment  2 is  to provide  for                                                               
reciprocal discovery 30 days before  the penalty phase of a death                                                               
penalty case.  There is an  exception, however, in that the rules                                                               
pertaining to expert witnesses would  remain the same; currently,                                                               
there   is   already   reciprocal  discovery   regarding   expert                                                               
witnesses.   Amendment  2 is  necessary,  she indicated,  because                                                               
under HB 9, or any capital  punishment bill, the court must allow                                                               
the jury to consider any  potentially mitigating information, and                                                               
this sometimes  results in witnesses  numbering in  the hundreds;                                                               
if  a person  is  convicted  of a  capital  crime,  it is  fairly                                                               
ordinary to  hear from  everyone who's  known the  defendant from                                                               
kindergarten on  up.  The  purpose of  [Amendment 2] is  to speed                                                               
the process  along, and would pertain  to the penalty phase  of a                                                               
capital case  - the most significant  phase of such a  case - and                                                               
both sides should be prepared to hear from witnesses.                                                                           
                                                                                                                                
MS. McLEAN said  this is akin to current Rule  32.1 of the Alaska                                                               
Rules of  Criminal Procedure; this  rule requires the  defense to                                                               
give  notice  of the  evidence  that  it  intends to  produce  in                                                               
support of  mitigating factors in  the penalty phase.   The State                                                               
also has to give notice of  the evidence it intends to produce in                                                               
support  of aggravating  factors,  and Amendment  2 provides  for                                                               
reciprocity in that  arena.  Noting that she's heard  a couple of                                                               
objections [to  the concept of  Amendment 2] based on  the Alaska                                                               
Supreme Court case,  Scott v. State, 519 P.2d  774 (Alaska 1974),                                                             
wherein the  court said it  is unconstitutional under  the Alaska                                                               
State  Constitution to  require a  defendant to  provide evidence                                                               
which could  bear on the  question of his/her guilt,  she pointed                                                               
out  that  once the  case  has  entered  the penalty  phase,  the                                                               
question   of   guilt  has   already   been   determined.     She                                                               
acknowledged,  though, that  it  could be  argued that  requiring                                                               
discovery 30  days before the guilt  phase is over might  bear on                                                               
the  defendant's  guilt;  similar  arguments have  been  made  in                                                               
Washington and  California wherein  reciprocal discovery  for the                                                               
penalty phase is required prior to the penalty phase being over.                                                                
                                                                                                                                
MS.  McLEAN said  that what's  been determined  by the  courts in                                                               
those  states is  that if  the  defendant has  concern that  what                                                               
he/she is  about to provide for  discovery may bear on  the issue                                                               
of guilt,  then he/she can be  heard ex parte in  camera, and the                                                               
court could then withhold some  of that discovery, reserve ruling                                                               
until the  guilt phase is  over, and  then, if the  court decides                                                               
that the  defendant's witnesses can  come in, the State  would be                                                               
entitled  to a  continuance in  order  to prepare  to meet  those                                                               
witnesses.    She  characterized   Amendment  2  as  a  practical                                                               
amendment intended to  move such cases along so as  to get to the                                                               
penalty  phase with  both  the State  and  the defendant  already                                                               
preparing for  the witnesses  that will be  heard in  the penalty                                                               
phase.  As a practical matter,  many of those witnesses will only                                                               
be speaking to  the defendant's character rather  than to his/her                                                               
guilt.                                                                                                                          
                                                                                                                                
MS. McLEAN offered  her belief that there is  nothing saying that                                                               
Amendment  2  would  be unconstitutional.    Again,  Amendment  2                                                               
tracks the aforementioned Rule 32.1.                                                                                            
                                                                                                                                
3:05:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES said she is  not convinced that Amendment 2                                                               
is constitutional,  particularly given  that the same  jury would                                                               
be seated  for both  the guilt  phase and  the penalty  phase and                                                               
discovery  would be  required while  the jury  is still  debating                                                               
guilt or innocence, and so she  would therefore be voting "no" on                                                               
Amendment 2.                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out that Scott  was followed by                                                             
another  Alaska Supreme  Court case,  State  v. Summerville,  948                                                             
P.2d 469 (Alaska  1997), and that nothing in  the intervening [23                                                               
years]  changed  the  Alaska  Supreme  Court's  opinion  on  this                                                               
subject nor  was there a dissenting  opinion in either case.   He                                                               
said:                                                                                                                           
                                                                                                                                
     I think that  it's reading those cases  too narrowly to                                                                    
     say that  it only applies  prior to the issue  of guilt                                                                    
     or innocence.   It would seem to me,  particularly in a                                                                    
     capital case, which may be  the paradigm - hypothetical                                                                    
     or  factual   situation  -  [that]  the   most  serious                                                                    
     consequence may very well be,  if it's used or required                                                                    
     - the  waiver or the abrogation  of that constitutional                                                                    
     right -  in the penalty  phase, when the person  may be                                                                    
     put to death.  I  think that this is extremely serious,                                                                    
     and I  doubt whether  the [Alaska] Supreme  Court would                                                                    
     change  its mind  just because  guilt had  already been                                                                    
     established.  I don't  think our [Alaska] Supreme Court                                                                    
     looks at  things so  technically; other  supreme courts                                                                    
     ... might do so, but I don't think ours would.                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG then asked  whether the DOL has prepared                                                               
a fiscal note  addressing the additional costs  that would result                                                               
from  a   legal  challenge  to  the   provision  established  via                                                               
Amendment 2.                                                                                                                    
                                                                                                                                
MS.  McLEAN predicted  that realistically,  if HB  9 passes,  the                                                               
State  would have  to  defend  the entire  bill  as  soon as  its                                                               
implementation is attempted.                                                                                                    
                                                                                                                                
A  roll call  vote  was taken.    Representatives Lynn,  Coghill,                                                               
Gatto,   and   Ramras   voted    in   favor   of   Amendment   2.                                                               
Representatives   Gruenberg   and   Holmes  voted   against   it.                                                               
Therefore, Amendment 2 was adopted by a vote of 4-2.                                                                            
                                                                                                                                
3:10:30 PM                                                                                                                    
                                                                                                                                
GERALD   LUCKHAUPT,   Attorney,    Legislative   Legal   Counsel,                                                               
Legislative  Legal  and  Research Services,  Legislative  Affairs                                                               
Agency (LAA), in response to  a question, explained that Alaska's                                                               
statute  regarding the  crime of  murder in  the first  degree is                                                               
slightly broader  than that of  other states in that  it includes                                                               
both  murders committed  with malice  and other  forms of  murder                                                               
such as those  involving extreme indifference to human  life.  As                                                               
a  drafting matter,  he indicated  that he'd  been instructed  to                                                               
start with the  statute pertaining to the crime of  murder in the                                                               
first degree and then apply aggravating  factors to it; this is a                                                               
common approach in  some states, even though not  all states have                                                               
a statute as broad as Alaska's.                                                                                                 
                                                                                                                                
MR.  LUCKHAUPT, in  response  to comments  and  a question  about                                                               
safeguards  to  prevent  innocent  people  from  being  executed,                                                               
observed that  Version E no  longer requires a standard  of proof                                                               
higher  than beyond  a  reasonable doubt,  adding  that no  other                                                               
state does  either, nor  does any  other state  currently require                                                               
that specific types  of evidence be present.   Version E requires                                                               
an appeal before the Alaska Supreme  Court, and this is common in                                                               
other  states as  well.   Under  Version E,  a jury  has to  find                                                               
aggravating  factors  that  are   not  outweighed  by  mitigating                                                               
factors, and that the death  penalty is the appropriate sentence;                                                               
he indicated  that this "residual  doubt standard" would  allow a                                                               
jury to refrain  from imposing the death penalty  even when there                                                               
are aggravating factors that aren't  outweighed by the mitigating                                                               
factors.                                                                                                                        
                                                                                                                                
MR. LUCKHAUPT,  in response to  another question,  explained that                                                               
there is language  in Version E that  implements the requirements                                                               
the U.S.  Supreme Court set out  in Atkins v. Virginia,  536 U.S.                                                             
304 (2002), with regard to  mental retardation; in that case, the                                                               
court  ruled  that executing  a  mentally  retarded defendant  is                                                               
unconstitutional.  Both  existing law and provisions  of the bill                                                               
address the issue of determining competency.                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES  offered her  understanding that  Version E                                                               
would allow the State to execute minors.                                                                                        
                                                                                                                                
MR. LUCKHAUPT indicated that it does  not, and that such would be                                                               
unconstitutional  [under  another  U.S. Supreme  Court  ruling  -                                                               
Roper v. Simmons,  543 U.S. 551 (2005)].  In  response to further                                                             
questions,  he reiterated  that it  would be  unconstitutional to                                                               
execute  someone who's  been found  to  be mentally  incompetent,                                                               
indicating  that  such  would be  determined  on  a  case-by-case                                                               
basis.                                                                                                                          
                                                                                                                                
3:22:38 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS made a motion to adopt Amendment 3, labeled 26-                                                                    
LS0036\E.3, Luckhaupt, 3/18/09, which read:                                                                                     
                                                                                                                                
     Page 13, line 21, following "court.":                                                                                      
          Insert "The attorney general may not elect to                                                                         
      seek the death penalty under this section unless the                                                                      
     state is prepared to present to the jury at trial                                                                          
               (1)  biological evidence or deoxyribonucleic                                                                     
      acid evidence that links the defendant to the act of                                                                      
     murder;                                                                                                                    
               (2)  a videotaped voluntary confession by                                                                        
     the defendant to the murder; or                                                                                            
               (3)  a video recording that conclusively                                                                         
     links the defendant to the murder."                                                                                        
                                                                                                                                
     Page 14, line 13:                                                                                                          
          Delete "and"                                                                                                          
                                                                                                                                
     Page 14, following line 13:                                                                                                
          Insert a new paragraph to read:                                                                                       
               "(3)  that the state presented                                                                                   
               (A)  biological evidence or deoxyribonucleic                                                                     
      acid evidence that links the defendant to the act of                                                                      
     murder;                                                                                                                    
               (B)  a videotaped voluntary confession by                                                                        
     the defendant to the murder; or                                                                                            
               (C)  a video recording that conclusively                                                                         
     links the defendant to the murder;"                                                                                        
                                                                                                                                
     Renumber the following paragraph accordingly.                                                                              
                                                                                                                                
     Page 14, line 29:                                                                                                          
          Delete "and"                                                                                                          
                                                                                                                                
     Page 14, following line 29:                                                                                                
          Insert a new paragraph to read:                                                                                       
               "(3)  that the state presented                                                                                   
               (A)  biological evidence or deoxyribonucleic                                                                     
      acid evidence that links the defendant to the act of                                                                      
     murder;                                                                                                                    
               (B)  a videotaped voluntary confession by                                                                        
     the defendant to the murder; or                                                                                            
               (C)  a video recording that conclusively                                                                         
     links the defendant to the murder;"                                                                                        
                                                                                                                                
     Renumber the following paragraph accordingly.                                                                              
                                                                                                                                
REPRESENTATIVE HOLMES objected.                                                                                                 
                                                                                                                                
CHAIR  RAMRAS characterized  Amendment 3  as instituting  what he                                                               
called an "irrefutable evidence  standard," explaining that under                                                               
Amendment  3, if  no such  evidence  is present  - that  evidence                                                               
being  either biological  evidence  or DNA  evidence linking  the                                                               
defendant to the murder, or  a videotaped voluntary confession by                                                               
the defendant  to the murder,  or a video  recording conclusively                                                               
linking the  defendant to  the murder  - then  the State  may not                                                               
pursue the death penalty.                                                                                                       
                                                                                                                                
MS. McLEAN concurred.                                                                                                           
                                                                                                                                
REPRESENTATIVE  HOLMES   said  she  appreciates  the   intent  of                                                               
Amendment  3  but  thinks  it  provides only  a  false  sense  of                                                               
security,  particularly  given  prior testimony  indicating  that                                                               
there  have  been  problems with  maintaining  the  integrity  of                                                               
deoxyribonucleic  acid (DNA)  evidence  and  problems with  false                                                               
voluntary  confessions, and  that  there could  be problems  with                                                               
conclusively  linking  a  defendant  to  a  murder  via  a  video                                                               
recording.                                                                                                                      
                                                                                                                                
MS. McLEAN  suggested that  if Amendment 3  is adopted,  then the                                                               
term "biological evidence"  ought to be defined,  adding that the                                                               
DOL has provided possible language for such a definition.                                                                       
                                                                                                                                
The committee took an at-ease from 3:25 p.m. to 3:26 p.m.                                                                       
                                                                                                                                
3:26:37 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS  - referring to  a handout starting with  the words,                                                               
"From SB 110" - made a motion  to amend Amendment 3 such that the                                                               
term "biological  evidence" would  be defined  as meaning:   "(A)                                                               
the contents  of a sexual  assault forensic examination  kit; (B)                                                               
semen, blood,  hair, saliva,  skin tissue,  fingernail scrapings,                                                               
bone,  bodily   fluids,  or   other  identifiable   human  bodily                                                               
material, collected as part of a criminal investigation".                                                                       
                                                                                                                                
REPRESENTATIVE HOLMES objected and  then removed her objection to                                                               
the amendment to Amendment 3.                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG objected for  the purpose of discussion.                                                               
He asked what the term  "sexual assault forensic examination kit"                                                               
means.                                                                                                                          
                                                                                                                                
MS. McLEAN  explained that Title  18 contains  statutes referring                                                               
to  sexual  assault forensic  examination  kits,  a term  of  art                                                               
coined  by  the Department  of  Public  Safety (DPS);  such  kits                                                               
include all of the materials used  to gather DNA, hair, and fiber                                                               
evidence from sexual  assault victims and suspects.   In response                                                               
to questions,  she noted that  [for some types of  evidence], the                                                               
evidence resides  on the  equipment used to  collect it,  such as                                                               
swabs, for example.                                                                                                             
                                                                                                                                
REPRESENTATIVE   GATTO  suggested   that  the   term  "biological                                                               
evidence"   should  instead   be  defined   as  "including"   the                                                               
aforementioned    items,   rather    than   as    "meaning"   the                                                               
aforementioned items.                                                                                                           
                                                                                                                                
MS. McLEAN  argued that such  a change would make  the definition                                                               
too  broad;  the  definition  should  instead  remain  narrow  to                                                               
reflect only  "what it is  that we are  really looking for."   In                                                               
response  to  questions,  she clarified  that  once  evidence  is                                                               
collected  via  the  equipment   in  a  sexual  assault  forensic                                                               
examination kit,  that evidence then  becomes part of  the sexual                                                               
assault forensic examination kit,  and that the semicolon between                                                               
subparagraphs  (A) and  (B) of  the amendment  to Amendment  3 is                                                               
intended to mean and/or.                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG, in  response  to a  question, said  he                                                               
would not object to the amendment  to Amendment 3 as long as that                                                               
meaning was clear.                                                                                                              
                                                                                                                                
CHAIR RAMRAS  surmised that the  objection had been  removed, and                                                               
announced that the amendment to Amendment 3 was adopted.                                                                        
                                                                                                                                
3:31:17 PM                                                                                                                    
                                                                                                                                
A  roll call  vote was  taken.   Representatives Coghill,  Gatto,                                                               
Lynn,  and Ramras  voted in  favor  of Amendment  3, as  amended.                                                               
Representatives   Gruenberg   and   Holmes  voted   against   it.                                                               
Therefore, Amendment 3,  as amended, was adopted by a  vote of 4-                                                               
2.                                                                                                                              
                                                                                                                                
[HB 9, Version E as amended, was held over.]                                                                                    
                                                                                                                                
3:32:42 PM                                                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 3:32 p.m.