SENATE JUDICIARY COMMITTEE January 28, 1998 2:00 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Drue Pearce, Vice-Chairman Senator Mike Miller Senator Johnny Ellis MEMBERS ABSENT Senator Sean Parnell COMMITTEE CALENDAR SENATE BILL NO. 219 "An Act relating to establishing an office of crime victims' advocacy; and amending Rule 16, Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence." SENATE BILL NO. 201 "An Act relating to prohibiting recovery of damages and prohibiting a remedy to a person in a civil action." PREVIOUS SENATE COMMITTEE ACTION SB 219 - See Judiciary minutes dated 1/21/98. SB 201 - See Judiciary minutes dated 10/10/97. WITNESS REGISTER Senator Rick Halford State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Prime Sponsor of SB 219 Ms. Jayne Andreen Council on Domestic Violence and Sexual Assault PO Box 111200 Juneau, Ak 99801 POSITION STATEMENT: Commented on SB 219 Mr. Brant McGee Office of Public Advocacy 960 West 5th Anchorage, Ak POSITION STATEMENT: Recommended change to SB 219 Mr. Dean Guaneli Department of Law PO Box 110300 Juneau, Ak 99801 POSITION STATEMENT: Commented on SB 219 Ms. Lauree Hugonin Alaska Network on Domestic Violence and Sexual Assault 130 Seward room 501 Juneau, Ak 99801 POSITION STATEMENT: Commented on SB 219 ACTION NARRATIVE TAPE 98-3, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:06 p.m. and noted the presence of SENATOR MILLER, SENATOR PEARCE, SENATOR ELLIS as well as SENATOR HALFORD, prime sponsor of SB 219. SB 219 - OFFICE OF VICTIMS' ADVOCACY SENATOR HALFORD presented an amendment which he said deletes the subpoena of a judge or jury. He said it does not mean a person cannot ask a question of a judge or juror, only that they have no authority to enforce the question be answered. He said this addresses one concern raised and remembered SENATOR ELLIS had another concern. He did not object to accommodating his request but wasn't sure an amendment had been drafted. SENATOR ELLIS said he believed there was an amendment. CHAIRMAN TAYLOR requested that before moving on to the second amendment he would like to take testimony on SENATOR HALFORD's amendment. SENATOR MILLER moved amendment one and without objection, the amendment was adopted. SENATOR ELLIS apologized his amendment had not been copied earlier. He agreed with SENATOR HALFORD that the misdemeanors covered in his amendment should be prioritized under felony crimes and dealt with by the advocate as resources permit. He offered it to the committee for consideration. SENATOR HALFORD said he had not seen it until this time but it does meet the requirements he had expressed to his staff. He sees it as a positive change that does not substantially dilute the bill's effectiveness. SENATOR ELLIS committed himself to go no further with this or any other amendments. SENATOR HALFORD researched the question of who is defined as the victim and found the current laws inadequate. He sees this bill as a big step in the right direction in relation to all victims' rights. He stated that the prosecutor can decide who is a victim and advocate for and notify this person or persons. He explained this is a new area of law that will need some fleshing out to elevate victims' rights to the proper level. CHAIRMAN TAYLOR expressed concern that, in only specifying domestic violence misdemeanors, other serious violent misdemeanors like assault may be overlooked. SENATOR ELLIS replied it was not his intention to omit these crimes but he was not positive they were covered. CHAIRMAN TAYLOR restated his concern that some very serious felonious misdemeanors might not be included if this amendment only covers domestic violence misdemeanors. SENATOR HALFORD explained thatthe amendment covers a felony or a class A misdemeanor if the class A misdemeanor was a crime involving domestic violence or a crime against a person. This covers first, second, third, and fourth degree assault, reckless endangerment and stalking in the second degree. He assumed it did cover most violent crimes. He said the amendment made this good thing bigger. CHAIRMAN TAYLOR was somewhat concerned with the fiscal note but noted it would be dealt with in Finance. SENATOR ELLIS moved the amendment and there being no objection, the amendment was adopted. DEAN GUANELI, representing the Department of Law (DOL) apologized for not attending the last meeting and came forward to respond to some concerns he learned had been expressed. He stated that the DOL was one of the first jurisdictions in the country to create a victims' assistance program in the late 1970's. Last year the department held a district attorney and paralegal training conference devoted to the discussion of sexual assault crimes, including the effect on victims. They dealt with domestic violence in a previous conference and hope to focus on child victims this year. He said the department has strongly focused on victims because it helps the prosecutor and is the right thing to do. He reviewed the concerns expressed at last week's hearing; going over the testimony regarding lack of notification and poor treatment of victims. He said it was not a surprise to hear. He may, however, have a different interpretation of the situation than the victims for several reasons. The first reason he cited was sheer numbers, saying the department may have to make 50,000 contacts a year just to get people to court. He said occasionally things fall through the cracks. He explained also that often they get very short notice from the court system and he doesn't expect the proposed office of victims' advocacy to help in this. He mentioned several handouts available for victims that educate them about their rights, and said some of these are being translated into Yupik for distribution statewide. He described how victims undergo trauma that can not be undone by the department no matter what. He said often other circumstances in a victim's life can compound the pressure they are under. Sometimes all the combined trauma a victim is dealing with leaves them unable to adequately understand and process information given to them. He cited this as another reason for giving victims brochures which allow them to use these materials when they are best able to process them. He thinks the victims' advocate would be helpful and the department would appreciate any help. Number 240 DEAN GUANELI gave detail about the Fairbanks triple murder case last week's witness gave testimony on. There were three victims in this case designated for notification when, by law, the department only had to designate and inform one. He did not want to go in to detail but mentioned that there were other very serious things going on in the lives of the victims that affected their ability to process and comprehend the information they were given. Specifically, DEAN GUANELI believed some of the information this witness wanted was the police report which is by law confidential until the case is concluded. He said victims have no greater right to view confidential information than the public. He said she may have not been able to understand this at the time and might have even been given too much information, but he did review the actions in the case and he was satisfied they did the best job possible. DEAN GUANELI mentioned two ways in which the office of victims' advocacy could help; primarily by explaining the law to victims and helping them through their trauma and secondly, by protecting victims against unfair defense attorney tactics. DEAN GUANELI also mentioned ways in which the office could potentially do harm in some cases. He said victims in many domestic violence cases later want to recant their testimony and current policy prohibits the department from allowing this. If the victims' advocate facilitated non-cooperation or recantation, it would be a problem. He said this may or may not happen depending on the type of client advocate relationship initially set-up. He suggested that if an advocate fully advised victims of their criminal and civil rights, including their possible right to civil compensation, this might open up other lines of questioning and possibly even make the victim out to look "money-grubbing." He concluded that depending on what was advised by the advocate, the victim could be inadvertently harmed by well intentioned advice. DEAN GUANELI continued his testimony, giving examples of cases where the department has been frustrated by the courts in their attempts to grant victims their rights as outlined under Alaska Statute 12.61.10b. This statute says every reasonable effort should be made to ensure victims of crimes are treated in accordance with their rights as set out in this section. In one case, a severely injured woman who had surgery and memory loss due to domestic violence had to go through a battery of psychiatric tests. In response to this, the legislature passed a law to keep this from happening. He also said sometimes the courts are not considerate of the victims' rights if they conflict with the court's schedule. He added that sometimes a problem like this can be resolved in the court of appeals but they do not always rule in favor of victims' rights. He gave other examples in which the court did not act in the best interests of the victims. Number 400 DEAN GUANELI explained that his point was that if the committee wanted progress to be made, victims' rights should not be developed through case law at the appellate court level in Alaska. He expressed a lack of confidence that case law would develop quickly or predictably. He suggested that if the intent was to develop victims' rights, it should be done through statutory change. He suggested a comprehensive body of statutes and said Alaska has a good start. He urged them to pursue this course of action. BARBARA BRINK, Public Defender for the State of Alaska, agreed with Mr. Guaneli regarding the unintended consequences of the bill. She said she had heard some questions regarding allocation of resources in the public defender's office and she was available to answer these. SENATOR HALFORD asked about a case in Anchorage where the defendant's family hired an attorney and this attorney was subsequently hired by the public defender's office to represent the man after he was declared indigent and the family hired yet another attorney for the man. He asked what defines indigent and does it apply to a person whose family can afford to hire an attorney. BARBARA BRINK replied that this was a misunderstanding. She said this man did have private counsel before he turned himself in. Later, when he no longer had counsel, a determination was made that he was indigent and a public defender was appointed. The family later contacted BARBARA BRINK to ask if some joint arrangement could be worked out, allowing the private counsel to be hired and work alongside the public defender. She flatly said no, saying a person is either indigent and entitled to the services of a public defender or they are not. The family later rallied their resources and retained the private attorney, according to MS. BRINK. She said the public defender is not involved in that case. SENATOR HALFORD thanked MS. BRINK for her good answer. Number 490 MR. BRANT MCGEE, Director of the Office of Public Advocacy testified he was concerned that the public may confuse this office with his own. He said it is difficult for the average citizen to wade through the alphabet of state agencies already and a different name may make it easier for people to locate this office. He said it was a small concern and he was not sure how much difficulty it would potentially cause but thought the name change was appropriate. CHAIRMAN TAYLOR agreed, saying he has seen this happen in relation to other agencies and asked SENATOR HALFORD if he had any problem removing the word advocate and inserting "rights." With none stated, he moved it as a conceptual amendment and without objection, CHAIRMAN TAYLOR said that conceptual amendment would be incorporated into a committee substitute. MS. LAUREE HUGONIN, representing the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), came forward to inform the committee of what nonprofit and volunteer groups around the state are doing to support victims' advocacy. She cited results of a statewide survey of victims that asked what their number one need was and overwhelmingly found it was legal advocacy. She informed the committee that in 23 communities around the state there are legal advocates for victims thanks to federal grants. She said this money has also allowed a paralegal coordinator to be placed in the criminal division of the DOL to work with victim witness coordinators in each district attorney's office to prepare victims for court. She talked about other positions and programs that exist around the state and others in the planning phase. She hoped these projects could also be supported with state funding and said it would help to take better care more of more victims. Her only concern with a centralized office of victims' right is that the office will be overwhelmed. She suggested perhaps later as the office was being instituted, boundaries could be set to determine what kind of representation would be available to whom and how often. CHAIRMAN TAYLOR agreed with MS. HUGONIN that it is unlikely victims will always have legal representation with the limited budget available. He said the victim already has an attorney there, that being the district attorney, and the idea is the advocate would be there to protect the victims' rights under our Constitution, as amended. He speculated the work load would be tremendous, making it difficult for this office to do much more than triage. They will most likely develop protocol to help deal with the cases that are most grievous. TAPE 98-3, SIDE B Number 001 SENATOR HALFORD said he was also concerned that this office would help people who had been denied their Constitutional rights, not provide people with an attorney to find ways to mess up their cases. SB 201 - PROHIBIT RECOVERY BY WRONGDOER CHAIRMAN TAYLOR said one of his main concerns was that in a hearing held in Anchorage regarding the largest fraud case in Alaska, he could not tell people why not a single charge was filed. He said that until an explanation was provided by the attorney general, he thought these people deserved an apology. DEAN GUANELI said he was prepared to give a response if the committee so desired and CHAIRMAN TAYLOR replied that it seemed relevant to him. DEAN GUANELI gave a bit of background, saying in the mid 1980's there was an audit done of the finances of the North Slope Borough which revealed widespread fraud and corruption involving public officials. As a result of the initial investigation, it was decided that the scope of the case and the fact that federal officials were already investigating necessitated that the case be turned over to the federal prosecutors. The federal prosecutor successfully prosecuted the case and jail sentences were imposed. DEAN GUANELI said in reference to this particular case involving a travel agency revealed to be a classic "ponzi scheme," there is already a federal investigation going on. The perpetrator's attorney has left the country but the case is ongoing. The case involves 1,100 victims in several states from all over the country and DEAN GUANELI said there are both legal and practical reasons why the state is not pursuing charges. MR. GUANELI said by the time state prosecutors were advised of the scam, there was already a federal bankruptcy and an IRS investigation going on and it was clear the case would be taken over by the feds. He said he personally sat down with the U.S. Attorney and it was obvious they would take over since they clearly had better laws and sentencing provisions. He said if there are any assets left anywhere the federal authorities are in a better position to collect them and provide restitution to the victims, as they have more money and more investigative resources. DEAN GUANELI said one legal reason why the state would not investigate is the fact that parallel investigations are not a good idea. The IRS had many of the documents and does not share information with state investigators. Also, with parallel investigations going on, each runs the risk of ruining the case for the other if they are not aware and informed of one another. Number 511 DEAN GUANELI said the other legal issue under consideration was the fact that the federal authorities had already granted immunity to one of the participants in the case, which, under a court ruling at that time, also translated into blanket state immunity. He explained "use immunity," means immunity for the use of a person's testimony, vs. "transactional immunity" which means complete immunity from prosecution. The federal authorities use the former type, whereas the State of Alaska uses the latter. He explained that they were in a position of going forward with the investigation blindfolded and said it was not appropriate. Not until after this decision had been overturned by the Court of Appeals would the state have been able to prosecute that person at all. The later ruling of the Court of Appeals determined that federal immunity only granted comparable immunity in state court, but that was not the case at the time. MR. GUANELI continued with the risks faced in proceeding with state prosecution. He said the different rules of state and federal discovery allow for complete discovery in a state case and only partial discovery in a federal case. This would mandate the state turn over all its information to the defendant but a federal prosecutor would only have to turn over some information. He gave the opinion that this would have permitted the state to convict only on a class B felony. He said these were part of the whole host of legal and practical reasons why it was inappropriate for the state to be involved. He said the one the papers picked up on was that there were several individuals at the Department of Law who had been involved as investors. He stated this created a perception of impropriety, even if the department had appointed a special prosecutor. So, because of these problems and at the request of the U.S. attorney, the department did not get involved and instead there is a federal indictment and the trial is scheduled for the summer. He said he believes these to be sound legal and practical reasons and if they were not adequately communicated he is sorry. SENATOR PEARCE asked if any of the Department of Law employees are under indictment. MR. GUANELI replied no. CHAIRMAN TAYLOR assured DEAN GUANELI he was sure there were reasons for why it happened this way and said the headlines were unfortunate. He also said he thinks there is a feeling of betrayal on the part of the victims and remarked that one of the biggest beneficiaries of this scheme was one of our state's employees. He believed this raises serious questions and creates poor public perception. No state prosecution has been brought on any charge when citizens of the state brought bad checks and showed them to the troopers. He knew the State of Idaho had prosecuted this woman since she was on probation when she came to Alaska. He wondered if our state talked to the State of Idaho. He thought computers kept track of all kinds of things and wondered why they could not be used to protect Alaskans. He hoped things did happen the way DEAN GUANELI said and added he would be having additional hearings on this matter. CHAIRMAN TAYLOR said it was his understanding that the IRS has not prosecuted this woman and it has been suggested that they held off in order to receive more taxes and is actually prosecuting the victims right now on their tax returns. He reminded those present that some of these people came out well ahead and some were state employees. He believed this justified a stronger, swifter response. He expressed concern about the lengthy time period elapsed from the first mention of the issue and about the letters written by state employees who were in fact winners in the scheme. DEAN GUANELI agreed that regarding public perception the ball was dropped and his office could have done a better job providing all the reasons. CHAIRMAN TAYLOR said as a judiciary committee they had to investigate these subjects but feared this might further enhance the state's liability. He said that liability may be of some magnitude. He appreciated MR. GUANELI'S response and said he truly believed in the right of non-prosequitur. He also believed he was the only person who wanted to retain the right of an individual to bring a criminal charge of prosecution when the state failed to do so. That law was eliminated eleven or twelve years ago when people were using it as a tool of harassment. He still believes there should be an avenue for victims to be heard in the absence of prosecution and maybe this bill will do that. SENATOR MILLER moved CSSB 219(JUD) out of committee with individual recommendations and CHAIRMAN TAYLOR told committee members the final CS would be brought to them before signing the committee report. There were no objections and the bill moved from committee.