Legislature(2009 - 2010)HOUSE FINANCE 519
04/12/2010 01:30 PM House FINANCE
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CS FOR SENATE BILL NO. 110(FIN) "An Act relating to the preservation of evidence and to the DNA identification system." 1:46:55 PM SENATOR HOLLIS FRENCH, SPONSOR, discussed SB 110. He explained that the proposed legislation addresses post conviction Deoxyribonucleic Acid (DNA) testing. He commended his Chief of staff, Cindy Smith who initiated a series of events allowing for provisions that move crime bills through the process. The governor introduced a bill this year with similar issues in respect to evidence preservation. The DNA provisions from the governor's bill are inserted into SB 110. He highlighted Section 3, Page 3 regarding evidence preservation. In the past rural law enforcement agencies were tasked with storing large amounts of evidence. With SB 110, an agency is not required to preserve physical evidence for a crime that is of a size, bulk, quantity, or physical character that renders preservation impracticable. If the evidence is impracticable, the bill asks the agency to grab those small portions of biological evidence that may be useful in the future to allow for a claim of innocence or conviction if necessary. He noted the language insertion from the Department of Law (DOL) "or until 50 years passes" allowing a limit with respect to the amount of time evidence is retained in storage. The Alaska Native Justice Center was added to the task force. He noted that the task force will provide good feedback in respect to evidence preservation. 1:51:02 PM Senator French discussed provisions on post conviction DNA testing. Individuals in prison can assert a claim of innocence because of DNA evidence that may not have been considered or available during conviction. The provision ensures that no innocent individual is retained in an Alaska prison. He explained that SB 110 is modeled on Federal post conviction DNA statutes, which were passed in 2004 by a republican congress. He opined that the bill struck the proper balance between civil liberties and protection of the public order. Changes to HB 316 include the deletion of language requiring applicants to cover the cost of evidence retrieval. Timeliness provisions were changed in that current prisoners have ten years from the passage of the bill to initiate a claim. Provisions regarding guilt where the applicant did not conceive guilt under oath in an official proceeding can be waived by the court in the interest of justice. He explained that innocent people sometimes plead guilty to crimes. A requirement asking for an attorney affidavit was deleted. New language in Section 10 states that the proposed DNA testing of the specific evidence may produce new material that one would support the theory raised by the defense. 1:54:19 PM DAN SULLIVAN, ATTORNEY GENERAL, DEPARTMENT OF LAW, sought guidance from the House Finance Committee about the three bills presented by the governor. He provided testimony during the first week of session regarding the ten year comprehensive plan to address the problem of domestic violence and sexual assault in Alaska. He noted that the way to combat the epidemic of sexual assault and domestic violence is with a ten year strategic plan. He mentioned that the help of the legislature has been instrumental in the initiative process. He focused on the implementation of the plan as a key aspect of the initiative. The strategic objective is focused on changing the culture through a comprehensive education and prevention campaign promoting a culture of respect. He noted the importance of law enforcement for interested communities. He discussed the issue of victim services availability. A summit of lawyers to increase the legal services via pro bono work is one potential solution. 2:00:51 PM Mr. Sullivan mentioned the legislation before the committee. He recalled SB 222, SB 110 and HB 324, which have been improved by this body. He requested that the bills go out of committee as a package today. He pointed out bail reform as an important issue. Alaska has not had significant bail reform since the 1960s and HB 324 is an effort to "catch up" to federal standards. He highlighted four key points in HB 324. The first point requires a person charged with a serious sex offense to prove that release conditions before trial will protect the victim and the public. The second point prohibits a person found guilty of a serious sex offense from being released before sentencing or during an appeal of a conviction. The third point protects the victims of domestic violence by setting standards that the court must find before allowing a perpetrator of domestic violence to return to the victim's residence. The fourth point allows more time before the defendant's first appearance in court for the police to investigate and the prosecutor to make an informed charging decision to present better bail arguments and to contact the victim so that they may be present at the bail hearing. He commented on the positive demonstration made by the administration, the House Finance Committee, and the Senate Judiciary Committee. He complimented the various staff members whose involvement created a strong package of three bills encompassing important components of the overall strategic plan to end sexual assault and domestic violence. 2:05:47 PM SUE MCLEAN, PUBLIC DEFENDER, DEPARTMENT OF LAW, stated that the testimony from Senator French was consistent with the department's viewpoint. She expressed a strong interest in allowing a challenge of convictions with the advent of DNA testing. She stated that SB 110 strikes an appropriate balance. RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, noted that the department worked well with the administration and Senator French's district. The requirements for obtaining post conviction relief under the state statute closely resemble the federal statute. He pointed out one instance on Page 6, Line 28 that does not follow the federal statute in which a person must be incarcerated prior to post conviction relief. With SB 110, incarceration is not a requirement. The change allows for the increased availability of post conviction relief. 2:09:17 PM Co-Chair Stoltze opened public testimony. JEFFREY MITTMAN, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION OF ALASKA, testified in favor of the bill. Co-Chair Stoltze pointed out two fiscal notes from the Department of Public Safety (DPS) and one from DOL. Mr. Svobodny explained the $4000 fiscal note from DOL. The court of appeals created standards on post conviction relief, but DOL believes that the legislature should determine standards for Alaska. The $4000 cost allows the task force to impose standards for the retention and return of evidence. 2:13:08 PM Co-Chair Stoltze detailed the zero fiscal note from DPS and one zero fiscal note from the Senate Finance Committee. ORIN DYM, FORENSIC LABORATORY MANAGER, DEPARTMENT OF PUBLIC SAFETY, stated that the fiscal note takes the form of a new crime lab. He explained that the department has gained efficiency in evidence handling and evidence storage providing reserves for the next two years. Co-Chair Hawker asked about the fiscal note from DOL. He asked if the funding would be absorbed into the existing budget authority. Mr. Svobodny responded that the department could absorb the cost. Co-Chair Hawker commended the frugality of the zero fiscal note. Mr. Svobodny agreed to present the note as a zero fiscal note. 2:16:32 PM Representative Gara moved AMENDMENT 1. Co-Chair Stoltze OBJECTED. Amendment One Delete "(A) is not inconsistent with a defense presented at trial; and (B)" Representative Gara spoke to the amendment. He explained one outstanding issue on Page 8, Line 19 addressed by the amendment. This section of the bill states that if a person is innocent and able to prove it with DNA evidence, then the person will no longer be in jail. He wished to prevent any additional road blocks for an innocent person. The DNA evidence is present for the person who is wrongly convicted. He noted the list of ten points that must be illustrated to prove innocence. If Line 19 is not amended, then an innocent person charged on misidentification, who chooses a plea of self defense as recommended by an attorney, will not be eligible for the benefits of DNA testing. The amendment states that an innocent person cannot be punished for a decision made by the trial attorney. He provided a hypothetical case in which this amendment would prove necessary. 2:21:47 PM Ms. McLean noted that a balance must be obtained between assuring that an innocent person could utilize DNA evidence testing and those who might use the new law to perpetrate a fraud on the court. Normally in self defense cases the defendant would testify that he acted in self defense. She added that if a defendant had a lawyer that talked him into a fraudulent plea, then he has an opportunity to file for a petition for a post conviction relief based on the ineffective assistance of counsel leading to his conviction. Representative Gara clarified that all circumstances must be covered to truly achieve a balance. He argued that balance is impossible if a person cannot use DNA evidence. 2:23:55 PM General Sullivan responded that the bill does comprise a balance. He noted that the language states that the theory of defense is inconsistent, which provides some "wiggle room." The language achieves the balance in the federal statute. Representative Doogan understood that if a person chose a plea and lost then they are rendered unable to file a petition for post conviction relief. He did not understand how amendment one would negatively affect any person or entity involved. Mr. Svobodny responded that most trial lawyers seek the truth. Representative Doogan commented that the person on trial does not pay the price in this circumstance. His attorney makes the decision. 2:29:16 PM Mr. Svobodny stated that he was a prior public defender and he never advised a person to run a defense that was untrue. He recalled instances where a defendant requested a new lawyer because the current lawyer would not defend based on the story provided by the defendant. He believed that the courts should strive to tell the truth as opposed to misleading people. Representative Doogan stated that the goal of the amendment is to prove innocence and tell the truth. He noted that without this, prosecutors will return to court and allow for further DNA testing. He cited that the DNA test provides infallible proof. 2:31:51 PM Representative Austerman asked if chapter 73 of the bill was based federal law. Senator French answered yes; chapter 73 is largely patterned after post conviction DNA statutes. 2:33:29 PM Representative Gara stressed that a lawyer can help an innocent person use DNA evidence to prove that they are innocent. He clarified that his hypothetical situation addressed an innocent person. He requested testimony from the department. 2:35:38 PM QUINLAN STEINER, PUBLIC DEFENDER AGENCY, DEPARTMENT OF ADMINISTRATION, commented that the amendment addresses both section seven and eight. Section eight details the requirement of the perpetrator's identity disputed at trial. Subsection eight requires that the court find that the applicant was convicted after a trial, which is inconsistent with another section of the bill which permits a post conviction DNA relief after a guilty plea. The defense attorney could make a reasonable decision to run self defense, which creates an ethical dilemma. 2:38:45 PM Representative Gara asked if there were circumstances where an attorney acting in good faith would run one defense during trial and later be precluded from using DNA evidence to prove that the client was innocent. Mr. Steiner replied yes, the most obvious example is a self defense claim which identifies the defendant as the person who created the act with eyewitnesses stating that the person was acting in self defense. A defense attorney may elect to run self defense rather than an identification defense despite the fact that the client denies presence at the scene of the crime. The decision rests exclusively with the attorney. Co-Chair Hawker commented on the debate. He stated that his aide is supportive of the amendment. He asked Senator French about the amendment and the balance of concerns. 2:41:07 PM Senator French responded that research shows the federal statute is the gold standard. He stated that he approved of the bill without change. Co-Chair Hawker asked the Attorney General his opinion about amendment one. General Sullivan stated that each provision requires an element of balance. He sought to strike the proper balance. The procedures are intended to prevent the incarceration of innocent people. He respected the concerns raised in the amendment, but the procedures are a balance in judgment. 2:44:10 PM Representative Fairclough spoke to the example provided by Representative Gara. She wondered if the defense attorney would have considered DNA evidence prior to the trial. She was unsure how the DNA evidence was obtained once the trial ended. Mr. Steiner responded that similar decisions were made prior to sophisticated DNA testing allowing for strategic reasons to forgo testing. An attorney must make judgment calls regarding the evidence's likelihood of success, which includes questioning the defendant's testimony. Representative Gara stated that the sophistication of DNA evidence is recent and unprecedented. 2:47:12 PM Co-Chair Hawker informed that court officers intend to make good decisions and are seeking justice. People in the court system are not always part of the judiciary system. Occasionally immigrants might not feel comfortable in the judicial system. This person may seek the best option out. He explained that the defense mechanism could be the result of fear or lack of understanding of the judicial system. He wondered if the requirement might be inconsistent. 2:51:03 PM Mr. Steiner commented that the amendment may not completely address the issue. Subsection eight requires that identity be disputed and works in concert with Section seven. Representative Joule commented that all native Alaskans look alike to some people. He wondered how the issue fits in to the amendment. Senator French stated that the DNA testing might truly exonerate the defendant only with an eyewitness that proves that the blood on the victim fell on the defendant. The police would test any blood found on the victim. In order for DNA evidence to exonerate the defendant the blood on the victim would require testing. 2:54:19 PM General Sullivan commented that the hypothetical situation assumes that the person is innocent and the blood is not presented at trial. He pointed out that a defense attorney might wisely avoid DNA testing, but then seek it out in the event of a conviction. 2:56:23 PM Representative Kelly asked how many states have adopted the federal approach. Senator French did not know the answer. Representative Gara explained that his hypothetical situation included a pre DNA evidence conviction. He accepted that many people do not fit the hypothetical, although if the amendment allows one innocent person to leave jail, then he will be content. Representative Doogan asked to know the potential harm of the amendment if passed. 2:59:30 PM Ms. McLean responded that the amendment opens the opportunity for those who are not in fact innocent and are continually bringing various motions on other theories. The harm is that the trial and appeals have occurred. Representative Doogan asked if the amendment would harm the lawyer. He noted that the provision removed includes the words "I did not do it." Ms. McLean answered that those who present a defensive alibi yet were guilty can now use a plea of self defense. She stated that the harm is the manipulation of the system making it more difficult for those people seeking access to the system. Representative Doogan reminded that a DNA test does not allow for a conviction change. 3:02:35 PM General Sullivan clarified that he is not admitting to administrative convenience. He thought the harm to the system was in allowing new theories that may be inconsistent with previous theories and thereby encouraging a form of "crapshoot justice." Representative Doogan expressed dissatisfaction with further argument versus an answer to his question regarding the potential harm of the amendment. He repeated the question "what is the harm in the amendment?" Representative Fairclough pointed out the cost to the state's investment in correctional facilities when DNA evidence is utilized. The harm to the system is that state dollars would be spent to test theory after theory. She recalled an appeal process addressed in the CS. 3:07:02 PM Senator French referred to Page 9, which addresses the summary dismissal if a person does not comply with the requirements of the discussed provisions. Ms. McLean added that citizens always have the right to appeal a court order. Representative Gara concluded that if the amendment passes, a person must present the affidavit and illustrate that the DNA evidence will prove innocence. If there was prior DNA evidence, the defendant must illustrate the reason that the new DNA evidence is superior. The DNA evidence must be proposed as sound and valid. The balance will be the inconvenience of rotten people who abuse the system, but for an innocent person who might not have been sophisticated enough to insist on the best defense possible, the amendment could make the difference. He continued that he felt that the bill was good with strong standards and many hoops to jump through prior to utilizing DNA evidence. A roll call vote was taken on the motion. IN FAVOR: 6 OPPOSED: 5 Amendment one was ADOPTED. 3:12:09 PM Co-Chair Hawker MOVED to report HCSCSSB 110(FIN) as amended out of Committee with individual recommendations and the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. HCSCSSB 110(FIN) was REPORTED out of Committee with a "do pass" recommendation and with attached new zero notes by the House Finance Committee for Department of Law and previously published fiscal notes: FN4 (DPS) and FN5 (DPS).