Legislature(2009 - 2010)BELTZ 211

02/25/2009 01:30 PM JUDICIARY

Audio Topic
01:18:18 PM Start
01:37:00 PM SB110
02:45:25 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 110 PRESERVATION OF EVIDENCE TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                SB 110-PRESERVATION OF EVIDENCE                                                                             
                                                                                                                                
1:37:16 PM                                                                                                                    
CHAIR FRENCH  announced the consideration  of SB 110.  He informed                                                              
the committee that  Lieutenant Dial with the troopers,  John Glass                                                              
and  Orin Dym  from  DPS, and  Rebecca  Brown  with the  Innocence                                                              
Project are online.                                                                                                             
                                                                                                                                
CINDY SMITH, Staff  to Senator Hollis French, said  the concept of                                                              
SB 110,  which is  preserving biological  evidence, was  put forth                                                              
for the first  time last year. Reading from the  sponsor statement                                                              
she stated the following:                                                                                                       
                                                                                                                                
     The American  system of justice is founded  on balancing                                                                   
     the twin  protections of the  rights of those  harmed by                                                                   
     crimes,  and   the  rights  of  the   accused.  Criminal                                                                   
     convictions  are  guided  by evidence  of  innocence  or                                                                   
     guilt, and no  one in the criminal justice  system wants                                                                   
     innocent people  to be convicted of crimes  they did not                                                                   
     commit. The  availability and  use of physical  evidence                                                                   
     at trials  and during  appeals is a  critical part  of a                                                                   
     meaningful justice system.                                                                                                 
                                                                                                                                
     The  point  of  SB  110  is  to  address  the  issue  by                                                                   
     requiring  that   biological  evidence  in   murder  and                                                                   
     sexual assault  cases is  properly retained while  cases                                                                   
     are  unsolved and  during  the period  after  conviction                                                                   
     that an offender  is imprisoned or required  to register                                                                   
     as  a sex  offender. The  bill does  provide for  police                                                                   
     departments  to return  or  dispose  of evidence  that's                                                                   
     too large  to keep after  portions of the material  that                                                                   
     are  likely to  contain  biological evidence  have  been                                                                   
     removed.  The  bill  asks that  that  evidence  also  be                                                                   
     retained while  cases are unsolved.  It then  provides a                                                                   
     notice  process   for  cases  where  evidence   will  be                                                                   
     destroyed and establishes … a temporary task force.                                                                        
                                                                                                                                
1:39:14 PM                                                                                                                    
MS. SMITH provided an explanation of the bill.                                                                                  
                                                                                                                                
Section  1,   page  1,  requires   the  Department  of   Law,  the                                                              
Department  of  Public  Safety,  the Alaska  Court  System,  or  a                                                              
municipal  law enforcement  agency to preserve  all evidence  that                                                              
is  related to  unsolved  cases  of murder  in  the first  degree,                                                              
murder in  the second degree,  manslaughter, criminally  negligent                                                              
homicide,  sexual assault  in  the first  degree  or child  sexual                                                              
assault in the first degree.                                                                                                    
                                                                                                                                
CHAIR FRENCH  added that those crimes  are listed on page  1, line                                                              
9.                                                                                                                              
                                                                                                                                
MS.  SMITH agreed;  AS 11.41.100  -  AS 11.41.130  are the  murder                                                              
crimes, AS  11.41.410 is sexual  assault in the first  degree, and                                                              
AS 11.41.434 is child sexual assault in the first degree.                                                                       
                                                                                                                                
The  bill  requires  preservation  of biological  evidence  in  an                                                              
amount  that is  sufficient  to  develop a  DNA  profile in  cases                                                              
where the  person convicted remains  a prisoner in the  custody of                                                              
the  state  or is  subject  to  registration  as a  sex  offender.                                                              
"Biological  evidence" is  defined on  page 3,  beginning on  line                                                              
16.  The  sponsor  worked  with  the Department  of  Law  and  the                                                              
Department  of  Public  Safety  to  develop a  list  of  kinds  of                                                              
biological  evidence  including  slides,  swabs, and  contents  of                                                              
forensic kits.                                                                                                                  
                                                                                                                                
Then the  bill provides two  broad exceptions to  the requirements                                                              
for  evidence preservation.  One is  if the  physical evidence  is                                                              
"of a  size, bulk,  quantity, or  physical character that  renders                                                              
preservation  impracticable," it  can be  returned or disposed  of                                                              
after removal  of materials  that are  likely to contain  relevant                                                              
evidence  for DNA  testing. The  language  is intentionally  broad                                                              
and  allows agency  discretion because  of  the different  storage                                                              
capabilities  at different  locations  throughout  the state.  The                                                              
situation  in Nome,  for example,  may be very  different  than in                                                              
the Anchorage area.                                                                                                             
                                                                                                                                
The agency  may destroy biological  evidence, but before  doing so                                                              
it must  provide notice of intent  to destroy the  evidence. There                                                              
is a list of parties to notify and a process for doing that.                                                                    
                                                                                                                                
Finally,  SB 110  establishes  a one-year  task  force to  develop                                                              
standards  and  best  practices  for  collection,  retention,  and                                                              
storage of evidence.                                                                                                            
                                                                                                                                
1:42:45 PM                                                                                                                    
CHAIR FRENCH asked when the task force will be created.                                                                         
                                                                                                                                
MS. SMITH  said it  will be  named essentially  at the  passage of                                                              
this  Act. Page  4,  line  19, states  that  the task  force  will                                                              
deliver  a report not  later than  [December  31,] 2010. The  task                                                              
force is repealed January 1, 2011.                                                                                              
                                                                                                                                
ANNE CARPENETI,  Assistant District  Attorney, Criminal  Division,                                                              
Department  of Law (DOL),  said testimony  from the Department  of                                                              
Public Safety will  probably be more helpful, but  she has several                                                              
things to mention.                                                                                                              
                                                                                                                                
CHAIR FRENCH said  it's worth pointing out that  the Department of                                                              
Law will not have to store any evidence.                                                                                        
                                                                                                                                
MS.  CARPENETI agreed.  Referring  to subsection  (b)  on page  2,                                                              
lines  2-7,  relating  to  practicable  preservation  of  physical                                                              
evidence,  she said  DOL's only  concern is that  a small  village                                                              
police  department not  be held  to the same  standard of  keeping                                                              
large items as an agency in a larger community.                                                                                 
                                                                                                                                
She pointed  out that on page  2, all the standards  for disposing                                                              
of biological  need to  be met. Therefore,  she believes  that the                                                              
word "and" needs to be inserted [at the end of] line 25.                                                                        
                                                                                                                                
1:45:18 PM                                                                                                                    
CHAIR FRENCH thanked her for bringing that to their attention.                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI  referred to page  3, lines 10-11,  and asked                                                              
if  the  state  will  be  exposed  to  liability  if  there  isn't                                                              
preservation of evidence.                                                                                                       
                                                                                                                                
MS. CARPENETI  said that  was her third  point. DOL  would suggest                                                              
the committee  add a  provision similar  to the domestic  violence                                                              
statute,  AS 18.66.180,  which provides  that  state agencies  and                                                              
their employees will not be subject to civil liability.                                                                         
                                                                                                                                
CHAIR  FRENCH said  the bill  will  receive careful  consideration                                                              
and certainly won't move today.                                                                                                 
                                                                                                                                
1:47:55 PM                                                                                                                    
SENATOR THERRIAULT joined the committee.                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if a  person who  has been  convicted                                                              
would  be able  to file  an  appeal on  the  grounds that  certain                                                              
evidence  wasn't considered  and,  under this  law, that  evidence                                                              
wasn't preserved. "It's something to think about," he said.                                                                     
                                                                                                                                
MS. CARPENETI  said that general  statement you're  describing has                                                              
given  DOL pause.  [Subsection (g)  on page  3] says  that if  the                                                              
court   finds  that   evidence   was  destroyed,   it  may   order                                                              
appropriate  remedies. She would  read that  to mean remedies  the                                                              
court  deems appropriate  as provided  in  law so  that you  could                                                              
file a  post-conviction relief  action or  something similar.  But                                                              
it has to be some procedure that is available now, she added.                                                                   
                                                                                                                                
1:49:23 PM                                                                                                                    
SENATOR  ELTON  asked  if  there shouldn't  be  a  provision  that                                                              
protects  individuals  from somebody  who  intentionally  destroys                                                              
evidence.                                                                                                                       
                                                                                                                                
MS. CARPENETI  said that  could be part  of the protection  that's                                                              
included.  You  could  have some  standard  that  everybody  knows                                                              
about  such as  recklessly or  intentionally. She  added that  she                                                              
believes they need  to protect little police departments  in small                                                              
villages that are doing their best.                                                                                             
                                                                                                                                
CHAIR FRENCH pointed  out that a tampering with  evidence crime is                                                              
already in  statute. It  almost always  applies to criminals,  but                                                              
once in awhile  you could imagine a police officer  tampering with                                                              
evidence. The charge applies to any violator.                                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI  asked if the provision on page  1, lines 11-                                                              
13, increases  the requirements  for law  enforcement agencies  to                                                              
retain biological evidence.                                                                                                     
                                                                                                                                
MS. CARPENETI  said the  statute doesn't state  that this  is what                                                              
police departments  have to  do now, but  she believes  there will                                                              
be testimony that this is what they actually do.                                                                                
                                                                                                                                
1:51:24 PM                                                                                                                    
SENATOR  THERRIAULT  asked  how  adjudicated  minors  are  handled                                                              
under this.                                                                                                                     
                                                                                                                                
MS.  CARPENETI said  it might  not  apply to  minors because  this                                                              
talks about convictions.  Minors aren't convicted  for an offense,                                                              
they're adjudicated. It's something to think about.                                                                             
                                                                                                                                
SENATOR  THERRIAULT   asked  Senator  French  if   the  split  was                                                              
purposeful.                                                                                                                     
                                                                                                                                
CHAIR FRENCH  said no, but it's  a good point. Any  16-year-old or                                                              
17-year-old  who is  convicted of  an adult crime  would have  the                                                              
evidence  preserved because  it's  a conviction,  and an  unsolved                                                              
crime  would have  the evidence  preserved. But  under the  strict                                                              
reading of  the bill,  the evidence wouldn't  be preserved  in the                                                              
case of  a 14-year-old  or a  15-year-old who  committed an  adult                                                              
crime.                                                                                                                          
                                                                                                                                
SENATOR  THERRIAULT   suggested  the  committee  give   that  some                                                              
thought.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  said it's a  good point because  it would  seem that                                                              
the same principle would apply to adults and minors.                                                                            
                                                                                                                                
SENATOR  THERRIAULT asked  if there  was any  specific talk  about                                                              
what happens to  the evidence after someone has  served their time                                                              
and is no longer on probation.                                                                                                  
                                                                                                                                
MS.  CARPENETI  said  she  assumes   the  evidence  would  not  be                                                              
retained  as long as  it isn't  a sex  crime -  sexual abuse  of a                                                              
minor in  the first degree  and sexual assault  of a minor  in the                                                              
first degree. SB  110 requires biological evidence  to be retained                                                              
if  someone  is  indicted  for   those  crimes,  but  subsequently                                                              
convicted of  a lesser crime.  People who  are convicted of  a sex                                                              
crime in the first  degree have to register as a  sex offender for                                                              
life,  and under  the bill  that means  the police  would have  to                                                              
retain  the evidence  for the  life  of that  individual. DOL  has                                                              
concern with  that because it  could be a  long time, but  it only                                                              
applies to  biological evidence. Mr.  Dym from the crime  lab will                                                              
probably  testify that  they keep  that type  of evidence  anyway,                                                              
but this may mean that they'll need more space.                                                                                 
                                                                                                                                
1:54:17 PM                                                                                                                    
CHAIR  FRENCH  told  her  she'll hear  the  committee  ask  police                                                              
officers  and  the folks  who  are  testifying  on behalf  of  law                                                              
enforcement  the extent to  which current  practices comport  with                                                              
the bill  as written.  He believes  they'll say  that the  bill is                                                              
fairly  consistent with  what they  do  now, but  it is  something                                                              
they're a bit worried about.                                                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI  said  he'll be interested  in hearing  about                                                              
security  measures  to  protect  the victims  of  sexual  violence                                                              
because their DNA will be retained forever.                                                                                     
                                                                                                                                
MS. CARPENETI  said she believes Mr.  Dym will say they  keep that                                                              
information in different databases.                                                                                             
                                                                                                                                
SENATOR ELTON asked  if the language on page 1,  lines 8-10, means                                                              
there is no need to retain evidence once there is a conviction.                                                                 
                                                                                                                                
MS.  CARPENETI explained  that  paragraph (2)  on  line 13,  talks                                                              
about  preservation   of  biological  evidence  if   a  person  is                                                              
convicted  of   a  crime   under  [AS  11.41.100-11.41.130].   She                                                              
believes  the sponsor  chose these  because they  are the  type of                                                              
crimes that you have by DNA evidence.                                                                                           
                                                                                                                                
SENATOR ELTON  asked what  happens to  biological evidence  that's                                                              
collected at the  scene that doesn't belong to the  person who was                                                              
convicted.                                                                                                                      
                                                                                                                                
MS. CARPENETI deferred the question.                                                                                            
                                                                                                                                
1:57:42 PM                                                                                                                    
SENATOR  THERRIAULT asked  if paragraphs  (1), (2)  and (3)  under                                                              
subsection  (d) on  page  2, are  connected  with an  "and" or  an                                                              
"or."                                                                                                                           
                                                                                                                                
CHAIR  FRENCH said  Ms.  Carpeneti  highlighted that  earlier  and                                                              
it's a crucial point to square away with the drafters.                                                                          
                                                                                                                                
1:59:19 PM                                                                                                                    
BILL OBERLY,  Executive Director,  Alaska Innocence  Project, said                                                              
he sees  SB 110  as securing  justice for  Alaskans. Alaska  needs                                                              
this  legislation because  the state  has no  universal policy  on                                                              
evidence  preservation.  As  it  stands now,  justice  depends  on                                                              
where you live  in the state. You're  lucky if you live  in Galena                                                              
because as of  February 2008 they retain evidence  indefinitely as                                                              
possible  exculpatory evidence  for potential  future appeals  and                                                              
cold  case investigations.  According  to Police  Chief Rob  Heun,                                                              
Anchorage  retains   indefinitely  evidence  from   homicides  and                                                              
sexual  assault  cases.  From there  evidence  preservation  drops                                                              
precipitously, he said.                                                                                                         
                                                                                                                                
SB 110 is  limited to evidence  in cold cases and  those involving                                                              
homicides  and  the   most  serious  sex  crimes.   It  calls  for                                                              
retention of  all evidence  in cold cases  and in post  conviction                                                              
cases  it  calls  for retention  of  evidence  likely  to  contain                                                              
biological evidence.  Referring to  page 3, subsection  (h)(2)(B),                                                              
he suggested  the committee  insert the  words "items  containing"                                                              
at the  beginning of  line17. That  would clarify  that these  are                                                              
evidentiary items  and not just  test tubes and things  like that.                                                              
It certainly  makes more sense when  read with [subsection  (b) on                                                              
page 2] that  talks about the  size of evidence. He  described the                                                              
provision that calls  for preservation of evidence as  long as the                                                              
person has to register as a sex offender appropriate and fair.                                                                  
                                                                                                                                
2:03:21 PM                                                                                                                    
MR OBERLY  said the  bill has practical  safety valves  related to                                                              
evidence  retention.  If  the  evidence  is  too  big,  it  allows                                                              
removal of areas  likely to contain relevant  biological evidence.                                                              
It   also  establishes   a   procedure  for   early   destruction.                                                              
Significantly,   it  provides   the  impact   of  destruction   in                                                              
violation  of the  statute as  a  remedy rather  than a  sanction.                                                              
Hopefully that  will address some  of the concerns the  state has.                                                              
Finally,  it creates  a task  force  to review  the standards  and                                                              
practices for  collection, retention  and cataloging  of evidence.                                                              
This will allow the  state to look at how this  law is working and                                                              
tweak  it where  necessary.  The  bill  allows for  extraction  of                                                              
portions of  material likely to  contain relevant evidence  and he                                                              
would suggest  waiting for  the task  force report before  placing                                                              
further limitations on the size of items to be retained.                                                                        
                                                                                                                                
MR OBERLY  said His final  comments relate  to the benefits  of SB
110. First,  it will  improve and  standardize cold case  evidence                                                              
retention, which  doesn't currently exist. Second,  it will ensure                                                              
that  individuals  with viable  claims  of actual  innocence  will                                                              
have  the evidence  that  can  establish their  innocence.  Third,                                                              
this will help  bring actual perpetrators to justice  because when                                                              
someone is  wrongly convicted there  is a perpetrator who  has not                                                              
been caught. Finally,  there is a fiscal benefit.  Justice For All                                                              
grant  money  is  available  and  could be  used  to  upgrade  DNA                                                              
testing,  help with  the DNA work  backlog and  help identify  and                                                              
test  claims of  wrongful conviction.  The money  is available  to                                                              
states that  have a  statewide evidence  retention statute,  which                                                              
is what SB 110 provides.                                                                                                        
                                                                                                                                
2:07:50 PM                                                                                                                    
BARBARA  BRICK,  representing  herself  and speaking  as  a  board                                                              
member  of the Alaska  Innocence  Project, said  she was a  public                                                              
defender  in Alaska  for 23  years.  During that  time there  were                                                              
huge increases  in technology. In  1982 it was  a big deal  to get                                                              
facsimile  machines  and  word  processors  and  today  she  can't                                                              
imagine the practice  of law without a computer.  Similar advances                                                              
have been  made in scientific  evidence including  fingerprinting,                                                              
firearm analysis,  bite mark  identification, blood  spatter, hair                                                              
analysis, and  handwriting analysis.  Each has  been hailed  as an                                                              
advance and  gave the sense that  they were reliable  and provided                                                              
trustworthiness to jury decisions.                                                                                              
                                                                                                                                
But  last week  the National  Academy of  Science issued  findings                                                              
and conclusions indicating  that these items of  evidence that had                                                              
been  used nationwide  to convict  or exonerate  people were,  for                                                              
the   most   part,   handled   by    poorly-trained   technicians.                                                              
Furthermore,   their  reports   and   testimony  exaggerated   the                                                              
accuracy of  their methodologies as  well as their  conclusions. A                                                              
primary reason  for drawing this  conclusion was that none  of the                                                              
scientific  laboratories  were  truly  independent  or  objective.                                                              
Instead  they were  closely affiliated  with  law enforcement  and                                                              
the prosecution  and the  work was  done by  human beings,  all of                                                              
whom  are fallible.  This  isn't the  first  time that  scientific                                                              
evidence has  been discredited, she said.  In 2004 the  FBI had to                                                              
notify hundreds  of potentially  wrongfully convicted  individuals                                                              
because the reliability  of chemical bullet analysis  had been far                                                              
overstated.                                                                                                                     
                                                                                                                                
MS.  BRICK  said she  provided  the  history lesson  because  most                                                              
people  today believe  that DNA  evidence is  the be-all and  end-                                                              
all. It's true  that 124 people  who were on death row  after they                                                              
went  through  jury  trials  and  lost  their  appeals  have  been                                                              
exonerated   and  advances   in   DNA  testing   techniques   have                                                              
exonerated  over 200 people  nationwide. That's  the state  of the                                                              
state today,  but she would like  a preservation of  evidence bill                                                              
to cover things that haven't been thought of.                                                                                   
                                                                                                                                
Preservation  of   evidence  is  critical  because   it  can  help                                                              
exonerate  innocent people  and help prosecute  people who  aren't                                                              
identifiable at  the time of  the crime.  Less than 10  percent of                                                              
violent crimes  involve DNA evidence  so an evidence  preservation                                                              
bill  like  SB  110,  which  limits  its  approach  to  biological                                                              
evidence, may  be missing an  opportunity for greater  justice. It                                                              
only  applies  to  a  narrow  category  of  crimes  and  a  narrow                                                              
category  of biological  evidence  if the  case  has been  solved.                                                              
It's a good start,  but we don't know what advances  in technology                                                              
are going to be  made in the future and it seems  that we're doing                                                              
ourselves  a  disservice  as  far as  unsolved  crimes  and  their                                                              
consequences,  she said.  Every  piece of  preserved evidence  has                                                              
the potential to improve justice.                                                                                               
                                                                                                                                
2:13:22 PM                                                                                                                    
MS.  BRICK said  it's been  important to  the people  who work  in                                                              
criminal  justice  that there  is  just  one standard  of  justice                                                              
statewide  and Alaska's  preservation  of  evidence policies  need                                                              
reform to do the  same. Procedures need to be  standardize so that                                                              
the  amount of  justice and  public safety  that's available  does                                                              
not depend  on where a  person happens to  live or what  the local                                                              
police  remember to  put in the  refrigerator.  "We can do  better                                                              
than that," she said.                                                                                                           
                                                                                                                                
2:14:32 PM                                                                                                                    
RICH NORGARD, Board  President, Alaska Innocence  Project, said he                                                              
is also speaking  on his own behalf  as someone who has  worked in                                                              
the criminal justice  system for 16 years. He said  he echoes what                                                              
Ms. Brink  said. SB  110 is  needed because  we know that  testing                                                              
has changed  dramatically over  the years and  we just  don't know                                                              
what we might  be able to test  tomorrow. DNA testing  may be just                                                              
the tip of the iceberg.                                                                                                         
                                                                                                                                
MR. NORGARD  urged the committee to  pass SB 110 with  the changes                                                              
that  the  National  Innocence Project  submitted  and  those  Mr.                                                              
Oberly recommended.  He cautioned  against narrowing the  bill and                                                              
emphasized that it  needs to say that items  containing biological                                                              
evidence  will be  preserved -  not just  the biological  evidence                                                              
itself.  He  encouraged  passing  a  strong  bill  that  preserves                                                              
evidence now and for the future.                                                                                                
                                                                                                                                
2:17:47 PM                                                                                                                    
REBECCA  BROWN, Policy  Analyst, Innocence  Project, described  SB
110  as a  reform whose  time  has come.  She  explained that  the                                                              
Innocence  Project was  founded in  1992 at  the Benjamin  Cardozo                                                              
School of  Law to exonerate  the innocent through  post-conviction                                                              
DNA testing. Since  that time forensic DNA testing  has proven the                                                              
innocence of  232 people  and identified  the real perpetrator  in                                                              
100  of  those  cases.  None of  this  would  have  been  possible                                                              
without  the  proper  preservation  of  biological  evidence.  She                                                              
cited the  Ricky Johnson  case, which shows  the promise  that new                                                              
technology  holds   for  solving  long-forgotten   cases.  It's  a                                                              
testament   to  the   crime-solving   potential   of  modern   DNA                                                              
technology, she said.                                                                                                           
                                                                                                                                
MS.  BROWN  said  that evidence  rooms  across  the  country  have                                                              
become  crime solving  gold  mines  and it's  understandable  that                                                              
evidence   custodians  become   concerned   when  legislation   is                                                              
considered  that will  require  them to  save  evidence for  which                                                              
they have  little room. But SB  110 is incredibly  modest compared                                                              
to  other retention  laws  across the  country.  It only  requires                                                              
retention  of  evidence  in  a very  narrow  category  of  serious                                                              
violent offenses.  In fact the  language in Section  1, subsection                                                              
(b),  is  consistent  with  the   federal  standard.  The  federal                                                              
government  also issued regulations  to make  the law  practicable                                                              
and  she  would   encourage  Alaska  to  look   at  those  federal                                                              
regulations  for  guidance. There  is  no sanction  identified  in                                                              
this law so  no one is going to  be liable in the small  number of                                                              
cases where a mistake might happen, she said.                                                                                   
                                                                                                                                
2:22:13 PM                                                                                                                    
MS. BROWN  said the creation  of a task  force will ensure  that a                                                              
range of stakeholders  can take part in a deliberative  process to                                                              
consider the  contours of  the issue over  time. This  expert work                                                              
will allow  for reasoned  refinements. It  may narrow  the concept                                                              
of  retention and  it may  consider  expanded retention  policies.                                                              
The provision  of guidance  and direction  to evidence  custodians                                                              
won't  create an unfunded  mandate  and may well  save money  over                                                              
time  by   creating  space   for  future   evidence  through   the                                                              
identification  of evidence  that can be  lawfully destroyed,  she                                                              
said.                                                                                                                           
                                                                                                                                
Safeguarding  biological  evidence  is  in  the  interest  of  all                                                              
members of  the criminal  justice community  - from crime  victims                                                              
to law  enforcement to  the wrongfully  convicted. Often  when the                                                              
innocent are exculpated,  the guilty are identified  through CODIS                                                              
hits,  she  said.   Many  states  realize  that   their  retention                                                              
policies  have not  kept  up with  DNA  advances.  Just last  year                                                              
three   states  passed   laws   mandating   the  preservation   of                                                              
biological evidence  in several crime categories.  SB 110 promises                                                              
to  shape an  evidence  management policy  that  is respectful  of                                                              
Alaska's   specific   concerns   articulated   by   a   range   of                                                              
stakeholders. "I think this is a wonderful bill," she said.                                                                     
                                                                                                                                
2:23:49 PM                                                                                                                    
ORIN  DYM,  Forensic  Laboratory  Manager,  Department  of  Public                                                              
Safety  (DPS),  said  he  would  first  respond  to  some  of  the                                                              
questions that  have come up. First  he clarified that  victim DNA                                                              
samples  are  not  uploaded  into   the  national  CODIS  database                                                              
system. When  a case comes  in for analysis  it may have  from one                                                              
to  several hundred  items of  evidence.  He and  his staff  first                                                              
look at  the most intimate  and probative  pieces of  evidence and                                                              
work out to the  least intimate and least probative.  Depending on                                                              
what they find, not all the evidence will be analyzed.                                                                          
                                                                                                                                
If a  piece of evidence  is analyzed, a  sample is  obtained where                                                              
biological evidence  is expected to be present.  Those samples are                                                              
retained by  the laboratory  indefinitely. But  if an item  is not                                                              
looked  at in  the laboratory  -  perhaps because  they have  body                                                              
swabs  that  contain  sufficient  evidence  -  it  will  never  be                                                              
opened, looked  at or sampled in  the laboratory and  nothing will                                                              
be retained.                                                                                                                    
                                                                                                                                
2:26:19 PM                                                                                                                    
MR. DYM  commented that  although people are  very proud  that DNA                                                              
has exonerated  200 people in the  last several years,  he can say                                                              
that  exonerations  are  happening  every  day  with  DNA  in  the                                                              
laboratory. Not  every DNA exam  identifies a suspect;  more often                                                              
than not it eliminates an individual as a suspect.                                                                              
                                                                                                                                
MR.  DYM  expressed  concern  about   laboratory  resources.  They                                                              
already  retain  many  samples  that  technically  belong  to  law                                                              
enforcement agencies  throughout the state because  they recognize                                                              
that most  law enforcement  agencies throughout  the state  do not                                                              
have sufficient  resources  and expertise  to store these  samples                                                              
properly.  We  are  committed  to   retaining  and  storing  these                                                              
samples properly and that's what we've done, he said.                                                                           
                                                                                                                                
The existing crime  laboratory has had 500 square  feet of storage                                                              
space for the last  22 years. It simply is not  enough so there is                                                              
a  resource  issue with  the  storage  of  samples, he  said.  The                                                              
laboratory  also have a  great number  of biological samples  that                                                              
predate computerization  and he recognizes  that those have  to be                                                              
brought  up to  computer  standards for  easy  tracking and  ready                                                              
preparation of lists of where evidence is located.                                                                              
                                                                                                                                
2:28:14 PM                                                                                                                    
SENATOR ELTON  asked if some of  the things that are  collected at                                                              
a  crime  scene  that  are not  initially  tested  are,  in  fact,                                                              
evidence.                                                                                                                       
                                                                                                                                
MR. DYM  said yes; evidence  that is not  analyzed the  first time                                                              
through may become highly probative later on.                                                                                   
                                                                                                                                
SENATOR  ELTON said  that's what  he wanted to  hear because  then                                                              
the laboratory  would be required  to hold as evidence  everything                                                              
else that may have been collected but not tested.                                                                               
                                                                                                                                
MR. DYM  said that's  correct. He's looked  at the possibility  of                                                              
screening  more  evidence when  a  case  initially comes  in,  but                                                              
there is absolutely  no space in the existing  laboratory to place                                                              
an additional  biological screener. The  next issue that  comes up                                                              
relates to  an agency  that wants  to dispose  of the clothing  or                                                              
chair or  jeep seat  that hasn't been  analyzed. He  believes that                                                              
it  falls to  the crime  laboratory  to evaluate  and sample  that                                                              
item. That too impacts the laboratory.                                                                                          
                                                                                                                                
SENATOR ELTON questioned  adding $40,000 in cost to  the bill when                                                              
the  laboratory  already  needs  more  space  to  store  evidence.                                                              
"That's just a question that I might ask at finance," he said.                                                                  
                                                                                                                                
2:32:04 PM                                                                                                                    
MR. DYM said we'll address that there.                                                                                          
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  everything  in a  room  that  is                                                              
splattered with blood is typically preserved as evidence.                                                                       
                                                                                                                                
MR. DYM said  it depends, but potentially everything  is submitted                                                              
to the  laboratory. In  general they would  not retain  the entire                                                              
item. Rather, they  would swab blood samples or  cellular material                                                              
that might  be present from the  item and retain the swab.  In the                                                              
case  of a  picture that  has  27 droplets  of  blood, they  might                                                              
photograph  the  document  and only  collect  and  retain  2 or  3                                                              
representative droplets.                                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI  asked  how he might  examine this  committee                                                              
room; 17 people are present and DNA is everywhere.                                                                              
                                                                                                                                
MR.  DYM  said  they  rely on  the  investigators  to  apply  good                                                              
detective work to  determine what might have scientific  value and                                                              
limit the number of samples collected.                                                                                          
                                                                                                                                
2:34:31 PM                                                                                                                    
CHAIR FRENCH asked  how full the 500 square foot  crime laboratory                                                              
evidence room  is now,  how long  it has taken  to get  that full,                                                              
and when  it will be  physically impossible  to fit  anything else                                                              
in.                                                                                                                             
                                                                                                                                
MR. DYM  replied it's been  full since  he arrived 1.5  years ago.                                                              
Recently   they  installed   a  CONEX  container   to  hold   non-                                                              
evidentiary  items to  free  closet space  in  the laboratory  for                                                              
evidence storage  and they  might be able  to utilize a  closet in                                                              
the back  of the boiler  room to  handle evidence overflow.  Also,                                                              
they've  quadrupled  the volume  of  evidence  they ship  back  to                                                              
agencies. Things that are not related to DNA are shipped back.                                                                  
                                                                                                                                
CHAIR FRENCH  asked what  in this  bill is specifically  different                                                              
from current practice.                                                                                                          
                                                                                                                                
MR. DYM  said the bill  requires more evidence  to be  sampled and                                                              
retained than current  practice. Before agencies  dispose of items                                                              
that  have been  returned,  they will  probably  send those  items                                                              
back  to  the   laboratory  for  sampling  or   identification  of                                                              
potential biological evidence.                                                                                                  
                                                                                                                                
2:37:25 PM                                                                                                                    
JOHN  GLASS, Deputy  Commissioner,  Department  of Public  Safety,                                                              
said he is available to answer questions.                                                                                       
                                                                                                                                
RODNEY  DIAL, Lieutenant,  Alaska  State Troopers,  Department  of                                                              
Public  Safety  (DPS),  provided   an  overview  of  DPS  evidence                                                              
procedures   at  trooper   posts  across   the  state.   Currently                                                              
department evidence  custodians are  required to be  knowledgeable                                                              
of  Alaska  statutes that  apply  to  evidence. Those  include  AS                                                              
12.36 and  AS 34.45,  which relate to  disposal of evidence.  They                                                              
are  also  required  to  be  knowledgeable   of  the  department's                                                              
operating  procedures  manual  and  the  detachment  SOPs.  Before                                                              
evidence is  disposed of, the custodian  must have one  or more of                                                              
the  following: written  authorization  from the  case officer,  a                                                              
court order,  permission from the  district attorney's  office, or                                                              
permission from  the state medical examiner. Standard  practice is                                                              
to retain  evidence from serious  crimes for a significant  amount                                                              
of time.  Retention is also dependent  on factors such  as statute                                                              
of  limitations, involved  parties,  whether or  not appeals  have                                                              
been exhausted, and  if it's reasonably believed that  there is no                                                              
value in continuing to retain the evidence.                                                                                     
                                                                                                                                
Referring  to   the  question   about  exculpatory   evidence,  he                                                              
explained that evidence  in cases where a person  was convicted of                                                              
a crime  is retained until the  department obtains a  release from                                                              
the district attorney's office.                                                                                                 
                                                                                                                                
CHAIR FRENCH asked  whether the DA's office allows  evidence to be                                                              
disposed of before a person is released from prison.                                                                            
                                                                                                                                
LIEUTENANT DIAL  said yes,  but generally not  in murder  cases or                                                              
other serious violent offenses where appeals are expected.                                                                      
                                                                                                                                
2:40:21 PM                                                                                                                    
SENATOR  ELTON asked  what kind  of training  occurs now and  what                                                              
might be envisioned after the task force is finished.                                                                           
                                                                                                                                
LIEUTENANT  DIAL  explained  that  all  academy  recruits  receive                                                              
basic   procedures   and  instructions   on   evidence   handling,                                                              
collection,  and  preservation  techniques.  Once they're  in  the                                                              
field they go  through additional field training.  At most trooper                                                              
posts primary  and secondary  evidence custodians are  identified.                                                              
They  must  be  knowledgeable  of the  statutes  relating  to  the                                                              
collection  of evidence  as  well  as the  department's  operating                                                              
procedures  manual. Detachment  commanders  are  also required  to                                                              
inventory evidence  facilities on a  regular basis to  ensure that                                                              
those  standards  are  adhered  to. It's  an  ongoing  process  of                                                              
following rigid guidelines coupled with oversight, he said.                                                                     
                                                                                                                                
SENATOR ELTON  asked if the  current training procedures  are good                                                              
enough  to  assume  that  the task  force  wouldn't  suggest  more                                                              
training.                                                                                                                       
                                                                                                                                
LIEUTENANT DIAL said  he believes more training  would be required                                                              
before taking  steps to  dispose of certain  types of  evidence in                                                              
certain cases.                                                                                                                  
                                                                                                                                
2:43:16 PM                                                                                                                    
MIKE MOBERLY,  representing himself,  Anchorage, said he  works in                                                              
the courts  on a  daily basis  and believes  that everyone  in the                                                              
process works  hard to see  that the right  results occur.  But it                                                              
doesn't  always   happen.  "One   needs  only   to  look   at  the                                                              
disproportionate  representation  of  minorities  or  economically                                                              
disadvantaged  peoples in  custody to  know that  that just  isn't                                                              
the case."  SB 110 is a modest  effort to ensure  that convictions                                                              
that are  obtained are sound  and that  we can have  confidence in                                                              
the system. He said he supports legislation that reasonably                                                                     
preserves evidence to provide confidence in the outcome that's                                                                  
obtained through the justice system.                                                                                            
                                                                                                                                
CHAIR FRENCH closed public testimony and held SB 110 in                                                                         
committee for further work.                                                                                                     

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