Legislature(2009 - 2010)BELTZ 211
03/31/2009 09:00 AM Senate STATE AFFAIRS
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 158-RETURN OF PROPERTY 9:52:33 AM CHAIR MENARD announced the consideration of SB 158. SENATOR FRED DYSON, Alaska State Legislature, said a friend of his runs a boat building shop. Two people came in and said they wanted to buy a boat. Later, almost $45,000 worth of electronic equipment disappeared. The owner found two thirds of his goods in hock shops and on internet sales. The police picked up much of it, which led them to the perpetrators. The shop owner had to repurchase similar equipment because the stolen items were held as evidence. State law allows that the evidence be photographed for use in court. That often doesn't happen. Senator Dyson has spoken with prosecutors, district attorneys, and police officers. Due to the high volume of these low-priority crimes, the property is often not returned in a timely fashion. 9:55:31 AM SENATOR DYSON said state law is adequate in this area; it is just a problem of emphasis and streamlining the process. SB 158 attempts to facilitate getting property back to the rightful owner without disturbing the legal process. CHAIR MENARD said the bill allows 60 days after the final disposition of the case. SENATOR FRENCH said this seems to be a good idea. Property owners can be inconvenienced for a long time. The bill puts the decision in the right agency. "You let the cops decide when they're through with it. That may give some people pause, but they're the people who we've charged with enforcing the law and ... beginning the process of prosecution, so it looks ... like a good idea." He asked if there are supportive letters from the police, union, or the administration. 9:57:12 AM SENATOR DYSON said no, but Annie Carpeneti is available from the Department of Law. He has also talked with police and troopers, but he has no letters in hand. He has been told that a defense attorney has to agree for the evidence to leave custody. Sometimes the defense won't allow it in efforts to throw roadblocks in the way of the prosecution. 9:58:07 AM SENATOR FRENCH said he doesn't know about that. Pretrial evidence may be needed but not crucial. The defense attorney may have to give permission to give something back to the victim. ANNIE CARPENETI, Criminal Division, Department of Law, Juneau, said she understands that victims want to get their property back. The state has a duty to preserve evidence that is discoverable by the defense. If that is not done, the state is sanctioned, which can include dismissing the prosecution or telling the jury to presume that the evidence would not be favorable to the defense. "We are working under some constraints as to ... the constitutional right to discovery of evidence by the defense." Police need to consult with the defense and the prosecution before returning property. The way the bill is drafted makes it look like the police could make that decision on their own. Most would still consult but "we would like to make it clear that they would." It doesn't say when, it just says before 60 days after the case is completed. It is important to keep evidence to meet discovery obligations under the law. SENATOR FRENCH asked what "final disposition of the case" means. Is that the exhaustion of all appellate opportunities? MS. CARPENETI said yes. These days that date is not clear because of post-conviction relief and appeals. The more important the case, the longer it goes. 10:01:12 AM SENATOR FRENCH asked Ms. Carpeneti if she has a phrase that should be added so that law enforcement must speak to the prosecution and defense before releasing property. MS. CARPENETI said on line 9, after "determines" add ", after consulting the prosecuting authority and the defense,". SENATOR FRENCH moved Conceptual Amendment 1 as stated above, as long as it comes back as a draft amendment from legislative legal services. Hearing no objection, Conceptual Amendment 1 was adopted. SENATOR DYSON said the next committee of referral is the judiciary. This committee should decide that the bill is in the public interest because it protects victims from continual victimization. The legal issue can be fixed in judiciary. 10:02:53 AM SENATOR FRENCH said the amendment passed. If the bill leaves state affairs, the language will appear in the next committee. SENATOR PASKVAN said he concurs. The prosecution will determine the weight of the evidence. The amendment is appropriate. SENATOR DYSON said he wants "to bump this up as a priority for the prosecutors and law enforcement folks to take care of the victim." Already they have to get permission from the defense to get the evidence released. Maybe these changes help do that. "I'm good," he concluded. 10:04:28 AM SENATOR MEYER moved to report SB 158, as amended, from committee with individual recommendations and attached fiscal note(s). There being no objection, CSSB 158(STA) moved out of committee. The committee took a brief at-ease.