Legislature(2009 - 2010)BELTZ 211
04/06/2009 01:30 PM Senate JUDICIARY
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 110-PRESERVATION OF EVIDENCE 2:18:22 PM CHAIR FRENCH announced the consideration of SB 110 and asked for a motion to adopt work draft committee substitute (CS) \E as the working document. SENATOR THERRIAULT moved to adopt work draft CS for SB 110, labeled 26-LS0560\E. There being no objection version E was before the committee. CHAIR FRENCH said Ms. Smith will go through the changes and then Ms. Carpeneti will discuss some amendments proposed by the Department of Law. CINDY SMITH, Staff to Senator French, stated that the CS includes the following changes: • Throughout the bill anytime a defendant is referred to an adjudicated juvenile is referred to as well. • Page 2, lines 11 and 12, subsection (b), adds clarifying language that an agency shall follow written policies in making decisions on what evidence it would or would not retain. • Page 3, line 1, the conjunction "and" is inserted before paragraph (3) to correct the grammar. • Page 3, lines 19, and 20, subsection (h), adds provisions providing immunity from civil liability. DOL will likely suggest substitute language, Ms. Smith said. • Page 4, at the request of the court the ex officio task force position from the Alaska Supreme Court is eliminated. 2:21:01 PM CHAIR FRENCH highlighted the letter from the Alaska Peace Officers Association opposing the bill and the letter from the Alaska Women's Lobby supporting SB 110. These letters have come in since the last hearing. CHAIR FRENCH asked Ms. Carpeneti to explain the amendments DOL is proposing. ANNE CARPENETI, Attorney, Civil Division, Department of Law (DOL), expressed appreciation for the cooperation from the sponsor and his staff in working on SB 110. CHAIR FRENCH returned he sees DOL as a partner because this won't work without cooperation. SENATOR MCGUIRE moved Amendment 1. CHAIR FRENCH objected for discussion purposes. AMENDMENT 1 OFFERED IN THE SENATE TO: SB 110 Page 4, following line 3: Insert new bill sections to read: * Sec. 2. AS 44.41.035(g) is amended to read: (g) A person from whom a sample has been collected under this section (1) may inspect and obtain a copy of the identification data regarding the person contained within the DNA identification registration system; and (2) may request the Department of Public Safety to destroy the material in the system regarding the person under the provisions described in (i) of this section. * Sec. 3. AS 44.41.035(i) is amended to read: (i) The Department of Public Safety shall [, UPON RECEIPT OF A COURT ORDER,] destroy the material in the system relating to a person or minor upon the written request of the person or minor, if the request is accompanied by a certified copy of a court order indicating that [The COURT SHALL ISSUE THE ORDER IF] the person's or minor's DNA was included in the system under (1)(b)(1) or (2) of this section, and the court order establishes [DETERMINES] that (A) the conviction or adjudication that subjected the person to having a sample taken under this section was [IS] reversed; and (B) the person (i) was [IS] not retried, readjudicated, or convicted or adjudicated for another crime that requires having a sample taken under this section; or (ii) after retrial, was [IS] acquitted of the crime or after readjudication for the crime, was [IS] not found to be a delinquent, and was [IS] not convicted or adjudicated for another crime that requires a sample under this section; (2)(b)(6) of this section, and the court order establishes [DETERMINES] that (A) the person arrested was released without being charged; [OR] (B) the criminal complaint, indictment, presentment, or information for the offense for which the person was arrested was dismissed, and a criminal complaint, indictment, presentment, or information for an offense requiring submission of a DNA sample was [IS] not refiled; or (C) the person was found by the trier of fact to be not guilty of the offense for which the person was arrested and was not convicted of another offense requiring submission of a DNA sample under (b)(1) or (2) of this section. * Sec. 4. AS 44.41.035 is amended by adding a new subsection to read: (r) A DNA sample collected or placed in the DNA identification registration system, that was taken or retained in good faith, may be used as provided by law in a criminal investigation. Evidence obtained from a match from a data collection system may be used in a criminal prosecution if the DNA sample was taken or retained in good faith, even if the DNA sample is later removed from the DNA identification registration system. Renumber the following bill sections accordingly. MS. CARPENETI explained that when the legislature changed the law regarding DNA collection, it provided a method for a person charged or convicted of a crime to get their DNA out of the databank if the charge or conviction is overturned. What it did not include is a procedure for a person to get their DNA out of the databank if they are later acquitted of the offense for which they were arrested and charged. The FBI requires that procedure under CODIS (Combined DNA Index System), which is the national repository for DNA profiles. Accordingly, this amendment provides the procedure for a person who is acquitted to ask for their DNA to be removed from the databank. The amendment also contains a good-faith provision which provides that DNA that has not been removed from the databank can be used if there is a valid hit on it. CHAIR FRENCH observed that "It's not a get-out-of-jail-free card on a hit that is validly derived while the information is in the databank." 2:25:07 PM CHAIR FRENCH, responding to a question, clarified that Ms. Carpeneti is explaining subsection (r) on the third page of Amendment 1. He asked if this adds to the language covering the individuals who can get their DNA removed from the databank. MS. CARPENETI replied this is in addition to the statute addressing the DNA databank. This suggestion came from the crime lab and CODIS has made a similar suggestion. 2:26:40 PM MICHELLE COLLINS, DNA Unit Supervisor, Statewide Crime Laboratory, Department of Public Safety, said she is the state representative to the FBI on matters of CODIS and the DNA database. She described the amendment as essential. When the DNA law was changed there was some talk about getting an AG opinion to address removal of DNA from the database when there is an acquittal, but that did not happen. When the lab began putting arrestee DNA samples in the national database, the FBI said it would be a violation of federal law to proceed without an established procedure for handling arrestees who are acquitted. In order to submit samples to CODIS, the lab revised its procedures until it could seek an amendment to address that issue. The laboratory hasn't needed to use the good-faith clause but it could important, Ms. Collins said. It addresses circumstances where there is a hit to a sample that should not be, but is, in the database. For example, if DNA evidence from a serial rapist produces a hit and matches the sample from a person who should not be in the database, the good-faith clause allows the lab to proceed. 2:30:02 PM CHAIR FRENCH removed his objection and seeing no further objection, announced that Amendment 1 is adopted. SENATOR MCGUIRE moved Amendment 2. CHAIR FRENCH objected for discussion purposes. AMENDMENT 2 [Original punctuation provided.] OFFERED IN THE SENATE TO: CSSB 110 LS0560\E On page 3 at line 19, delete the language in (h) and replace with A person may not bring a civil action for damages against the state or political subdivision of the state, their officers, agents, or employees, or a law enforcement agency, its officers, or employees for any failure to comply with the provisions of this section. MS. CARPENETI explained that the amendment addresses civil liability for police departments throughout the state that may not comply with the law with respect to retention of evidence. Police departments will do their best to comply with the law, but it would be very hard on a small village police department to suffer civil liability for a mistake they made. This language was suggested because it is already in current law for putting in and taking out of the database domestic violence restraining orders. It's a bit broader than the language that's in the bill. 2:32:12 PM SENATOR THERRIAULT asked how it squares with subsection (g) that says the court may order remedies if it finds that evidence was destroyed. MS. CARPENETI replied they address different things. Subsection (g) represents what happens in a criminal prosecution or post conviction relief that is pursued by an individual if evidence is lost. Subsection (h) addresses civil liability money damages to the police department if they make a mistake. This is a new requirement for police departments to abide by and DOL doesn't think they should be held for money damages if a mistake is made. CHAIR FRENCH observed that the criminal defendant may enjoy some benefit from an intentional destruction of evidence in their case, but that criminal defendant can't sue the police officer for money because of the event. 2:34:17 PM MS. CARPENETI said yes and depending on the situation, the court could dismiss the subsequent prosecution, but this amendment addresses money damages for violation of the Act by the police officer or his or her employer. CHAIR FRENCH asked if it would possibly include the lawyers as well. MS. CARPENETI answered yes. 2:35:08 PM CHAIR FRENCH noted that Ms. Carpeneti said there are similar provisions in other places of the law; this is a blanket bar even for intentional acts. MS. CARPENETI said yes; AS 18.66 is the limitation of liability for police with respect to putting domestic violence restraining orders in and out of the DV registry. Responding to a question, she said the Department of Law supports the amendment. CHAIR FRENCH withdrew his objection and seeing no further objection, announced that Amendment 2 is adopted. 2:35:53 PM SENATOR MCGUIRE moved Amendment 3. CHAIR FRENCH objected for discussion purposes. AMENDMENT 3 [Original punctuation provided.] OFFERED IN THE SENATE TO: CSSB 110 LS0560\E At page 4, line 18, insert: (8) a representative of the State Crime Lab. MS. CARPENETI related that the bill adopts a task force to address evidence retention issues and the State Crime Lab suggested they might make helpful contributions to the task force. They do hold the evidence. CHAIR FRENCH asked Mr. Dym if he supports Amendment 3. ORIN DYM, Forensic Laboratory Manager, Statewide Crime Lab, Department of Public Safety, said he does support it. CHAIR FRENCH removed his objection and seeing no further objection, announced that Amendment 3 is adopted. 2:37:17 PM JEFFERY MITTMAN, Executive Director, ACLU of Alaska, said the ACLU generally supports SB 110 but has some concerns with Amendment 2 relating to the database and good-faith exception. The ACLU would prefer an automatic exclusion of evidence for someone who has been acquitted and would like the good-faith provision limited. "But generally we appreciate the work of the committee in addressing this important issue, he stated. BILL OBERLY, Alaska Innocence Project, said his only problem with the amendments to SB 110 relate to Amendment 2 to the extent that it deals with intentional conduct. I don't think that's appropriately a part of that and would counsel the committee to use caution in allowing intentional conduct to go forward, he said. MR. OBERLY suggested that if the bill doesn't get signed this year the committee might want to breakout the section on the task force and pass it now and allow that task force time to develop suggestions before the Senate deals with the bill next session. That would be the best use of everyone's time, he said. 2:39:57 PM CHAIR FRENCH said it unlikely that the bill will be signed into law this year, but the effect of that suggestion would be to jettison all portions of the bill except the task force and let it move forward on its own. Perhaps we should talk further about that before coming to a final decision, he said. With respect to the point on Amendment 2, Senator French said he shares some of that concern. An intentional act to destroy evidence is something the committee should be very cautious about indemnifying anyone for. He said he can appreciate Ms. Carpeneti's perspective on the domestic violence writs, but what's playing out now on a large scale is the withholding of evidence and the horrible implications that can have on a trial. CHAIR FRENCH directed attention to Amendment 2 and asked Ms. Carpeneti if inserting the word "intentional" before "failure to comply" would preserve all immunity for negligent or knowing failures. MS. CARPENETI said she believes so. SENATOR THERRIAULT questioned whether unintentional" isn't the word he's looking for. This section protects the employees and the idea is to protect them from an unintentional act. CHAIR FRENCH said he doesn't want employees to be sued if they forget to save the evidence or even if they think about it and then don't remember to do it. SENATOR THERRIAULT returned that's unintentional. MS. CARPENETI said she agrees it would achieve the purpose. The way the amendment reads is that a person may not bring an action for unintentional failure to comply. 2:43:08 PM CHAIR FRENCH moved Amendment 4. AMENDMENT 4 Insert: "unintentional" before the phrase "failure to comply" in the third line of the previously adopted Amendment 2. Finding no objection he announced that Amendment 4 is adopted. SENATOR MCGUIRE directed attention to Amendment 2 and asked if it makes a material difference and if the phrase "with provisions of this section" refers to the entire bill. MS. CARPENETI said she believes that's correct. SENATOR MCGUIRE mused that there's no material difference other than adding the specific reference to officers, agents, or employees. MS. CARPENETI offered that with the adoption of Amendment 2 more parties are covered and DOL sees that as an important difference. 2:45:07 PM SENATOR THERRIAULT referenced paragraph (2) in Section 1 of the bill and asked if the family of a prisoner who died while in prison could make a motion to have the deceased prisoner's DNA sample removed from the database. MS. CARPENETI replied that is not her understanding. "While the person remains a prisoner in the custody of the Department of Corrections" is language that came from Legislative Legal. It means that the person is in jail but it does not mean that the family of a person could make a motion to have the person's DNA removed from the database. "I think any right dies with the prisoner." 2:46:36 PM SENATOR THERRIAULT mentioned an article he read about a family that cleared a man who had died in prison and commented that it doesn't seem as though that set of circumstances would be a remedy for the family. CHAIR FRENCH offered that it would no longer be an obligation of the state to preserve evidence so that the family would have access to it. "At some point the effort ends." MS. CARPENETI said that is correct. At a certain point police departments have to clear evidence from their inventory. "Keeping evidence after the defendant has died seems unnecessary to us." SENATOR THERRIAULT questioned whether police departments could get rid of evidence under the language in the bill. CHAIR FRENCH returned that as long as the person is no longer a prisoner a police department could get rid of the evidence. MS. CARPENETI stated agreement. SENATOR THERRIAULT noted the references to the crimes that this law would apply to and asked if there was a particular reason that sex trafficking and child kidnapping aren't included. MS. CARPENETI explained that the idea was to start with the most serious offenses that would typically have DNA evidence that would be relevant. While sexual abuse and sexual assault typically do have DNA evidence, sex trafficking isn't the type of case where DNA would typically be relevant. 2:48:45 PM CHAIR FRENCH said his sense was that this bill would be difficult to get through the process because it's a major change in the way evidence is handled in this state. Focusing on homicide, rape in the first degree, and sexual assault of a minor in the first degree is a measurable change. If the bill gains momentum and people want to add other crimes we can discuss that, he said. MS. CARPENETI added that the bill does provide that these obligations for police departments apply if a person is indicted for sexual assault in the first degree or sexual abuse in the first degree and is subsequently convicted of lesser included offenses. 2:49:47 PM CHAIR FRENCH solicited a motion to move the bill. SENATOR MCGUIRE moved to report CS for SB 110, as amended today, from committee with individual recommendations and attached fiscal note(s). There being no objection, CSSB 110(JUD) moved from the Senate Judiciary Standing Committee.