SENATE COMMITTEE ON JUDICIARY

February 25, 2003 Hearing Room 343

8:00 a.m. Tapes 39-40

MEMBERS PRESENT: Sen. John Minnis, Chair

Sen. Ginny Burdick, Vice-Chair

Sen. Ted Ferrioli

Sen. Charlie Ringo

Sen. Charles Starr

Sen. Vicki Walker

STAFF PRESENT: Craig Prins, Counsel

Jane Bodenweiser, Committee Assistant

MEASURE/ISSUES HEARD: Informational Meeting “Report of the Advisory Committee on

Genetic Privacy and Research” by Astrid Newell, MD

SB 58 Public Hearing and Work Session

SB 107 Public Hearing

SB 122 Public Hearing and Work Session

These minutes are in compliance with Senate and House Rules. Only text enclosed in quotation marks reports a speaker’s exact words. For complete contents, please refer to the tapes.

TAPE/#	Speaker	Comments
TAPE 39, A
001	Chair Minnis	Calls the meeting to order at 8:12 a.m. Reminds the committee of the Supreme Court lunch tomorrow, February 26, at 11:30 a.m. Introduces Dr. Ted Falk and Dr. Astrid Newell.
INFORMATIONAL MEETING
015	Dr. Ted Falk	Advisory Committee on Genetic Privacy. Submits material and presents an overview of the functions of the committee and the issues involved (EXHIBIT A).
044	Dr. Astrid Newell	Advisory Committee on Genetic Privacy. Gives a basic introduction to genetics and DNA.
119	Dr. Falk	Discusses the historical background of genetic privacy in Oregon.
219	Dr. Newell	Talks about research and clinical issues addressed.
290	Dr. Falk	Summaries the committee’s recommendations and future issues.
488	Chair Minnis	Asks who the legislative members were.
491	Dr. Newell	Replies, Sen. Courtney, Rep. Shetterly, Sen. Nelson, and Sen. Walker
512	Chair Minnis	Recesses the committee at 8:40 a.m.

TAPE 40, A
035	Chair Minnis	Reconvenes the meeting at 9:00 a.m. and opens a public hearing on SB 58 that expands circumstances under which colorable claim of error standard is used for purposes of filing notice of appeal in criminal case.
SB 58 PUBLIC HEARING
040	Peter Ozanne	Executive Director, Office of Public Defense Services. Submits testimony and testifies in support of SB 58 (EXHIBIT B).
077	Chair Minnis	Closes the public hearing on SB 58 and opens a work session.
SB 58 WORK SESSION
088	Vice Chair Burdick	MOTION: Moves SB 58 to the floor with a DO PASS recommendation and be placed on the CONSENT CALENDAR.
		VOTE: 5-0-1 EXCUSED: 1 - Sen. Ringo
090	Chair Minnis	Hearing no objection, declares the motion CARRIED. SEN. BURDICK will lead discussion on the floor.
092	Chair Minnis	Closes the work session on SB 58 and opens a public hearing on SB 107.
SB 107 PUBLIC HEARING
094	Craig Prins	Introduces SB 107 that requires that defendant show substantial prejudice from delay of trial before court can dismiss accusatory instrument on basis of failure to provide speedy trial.
103	Jonathan Fussner	Department of Justice. Submits testimony and testifies in support of SB 107 (EXHIBIT C).
170	Vice Chair Burdick	Asks if this bill would have made a difference in the outcome of the Harberts case.
178	Fussner	Replies that it would not have made a difference.
191	Vice Chair Burdick	Wonders how difficult it is for the defendant to show prejudice.
195	Fussner	Explains that it is difficult.
203	Vice Chair Burdick	Wonders how the Supreme Court got involved.
212	Fussner	Explains the process.
235	Vice Chair Burdick	Asks if cases can be re-filed after they are dismissed.
259	Fussner	Replies that cases are generally not re-filed.
265	Chair Minnis	Asks how the court reached the constitutional conclusion in the Harberts Case.
273	Fussner	Explains the process.
304	Sen. Walker	Wonders how courts might rule on the prejudice requirement.
313	Fussner	Remarks that case law has developed around the constitutional requirement.
345	Sen. Walker	Asks if there is a standard time period for a trial.
346	Fussner	Explains there are guidelines issued by the courts, but they are not binding by law.
387	Steve Dingle	Oregon District Attorney’s Association (ODAA). Testifies in support of SB 107.
TAPE 39, B
055	Vice Chair Burdick	Asks the process for showing prejudice.
060	Dingle	Gives a typical case scenario.
081	Sen. Walker	Believes that unreasonable delay is a prejudice. Asks if this bill is intended to become the norm.
092	Dingle	Responds that this bill should become the standard.
128	Sen. Ferrioli	Asks what a judge would do if there is no public defender available for a defendant who cannot afford his own defense.
154	Dingle	Explains the proposed procedure in Marion County.
168	Chair Minnis	Advises that a lawyer can be compelled by the court to defend someone.
186	Sen. Ringo	Says as a lawyer, he would not be comfortable in criminal court.
210	Dingle	Explains that Marion County has adopted a continuing early disposition program.
226	Sen. Ringo	States the belief that delay itself causes prejudice.
232	Dingle	Says this is true.
230	Sen. Ringo	Contends there needs to be some time limit so that a defendant can have some finality.
259	Dingle	Believes that this does exist with the constitutional standards already established. Says the fact in reality is that delay benefits the defendant.
335	Susan Russell	Oregon Criminal Defense Lawyers Association. Submits testimony and testifies in opposition to SB 107 (EXHIBIT D).
412	Chair Minnis	Asks if a statutory provision to a speedy trial is a right.
380	Russell	Says it is a statutory right.
389	Chair Minnis	Asks the difference between a statutory and a constitutional right.
420	Russell	Clarifies the difference.
432	Chair Minnis	Wonders where “substantially prejudiced” is defined in case law.
433	Russell	Responds she is not aware of a definition in case law.
426	Chair Minnis	Asks for an example of when a court has “purposefully delayed” a case.
440	Russell	Says that language comes from the Harberts case.
TAPE 40, B
018	Russell	Continues testimony in opposition to SB 107.
067	Chair Minnis	Wonders if the word “substantial” should be removed.

070	Russell	Believes that it would still be inadequate protection for a defendant’s statutory right to a speedy trial.
114	Sen. Ferrioli	Talks about a community standard of reasonableness.
157	Russell	Points out two problems with this legislation.
178	Chair Minnis	Asks for further clarification of the “substantial prejudice” issue.
182	Dingle	Addresses the prejudice issue.
212	Sen. Ringo	Questions the pre-trial release condition imposed.
214	Dingle	Says there are travel passes.
222	Sen. Ringo	Contends that inconvenience and prejudice are two separate issues.
228	Dingle	Agrees, but says inconvenience is considered a part of prejudice.
246	Chair Minnis	Closes the public hearing on SB 107 and opens a public hearing on SB 122.
SB 122 PUBLIC HEARING
255	Erik Wasmann	Oregon Department of Justice. Submits testimony and testifies in support of SB 122 that expands crime of robbery in third degree to include activities relating to unauthorized use of vehicle (EXHIBIT E).
275	Rick Wesenberg	Oregon District Attorneys Association (ODAA), Roseburg, OR. Submits testimony and testifies in support of SB 122 (EXHIBIT F). Discusses an Oregon case that included the taking of an automobile.
351	Sen. Ringo	Asks if these people were prosecuted for kidnapping.
358	Wesenberg	Says, yes, but the jury acquitted them of that charge.
358	Sen. Ringo	Asks what the conviction was.
359	Wesenberg	Says the conviction was robbery in the first degree.
364	Wasmann	Explains why this legislation is needed for clarification.
391	Chair Minnis	Believes this closes a loophole in the law.
396	Vice Chair Burdick	Asks for a clarification of robbery and attempted robbery.
401	Wasmann	Explains the definition.
410	Chair Minnis	Discusses the difference between theft and robbery, and providing proof of either.
459	Chair Minnis	Closes the public hearing on SB 122 and opens a work session.
SB 122 WORK SESSION
460	Vice Chair Burdick	MOTION: Moves SB 122 to the floor with a DO PASS recommendation.
		VOTE: 6-0
466	Chair Minnis	Hearing no objection, declares the motion CARRIED. SEN. RINGO will lead discussion on the floor.
470	Chair Minnis	Closes the work session on SB 122 and adjourns the meeting at 10:00 a.m.

EXHIBIT SUMMARY

A – Printed material presented by Dr. Ted Falk and Dr. Astrid Newell, 114 pp

B – SB 58, written testimony submitted by Peter Ozanne, 1 p

C – SB 107, written testimony submitted by Jonathan Fussner, 2 pp

D – SB 107, written testimony submitted by Susan Russell, 1 p

E – SB 122, written testimony submitted by Erik Wasmann 2 pp

F – SB 122, written testimony submitted by Rick Wesenberg, 2 pp