SENATE COMMITTEE ON JUDICIARY

 

 

June 06, 2005                                                                                                      Hearing Room 343

1:00 P.M.                                                                                                                  Tapes 156 - 159

 

MEMBERS PRESENT:         Sen. Ginny Burdick, Chair

Sen. Charles Starr, Vice-Chair

Sen. Roger Beyer

Sen. Floyd Prozanski

Sen. Charlie Ringo

Sen. Vicki Walker

Sen. Doug Whitsett

 

STAFF PRESENT:                 William E. Taylor, Counsel

                                                Joe O'Leary, Counsel

                                                Heidi Moawad, Counsel

                                                Sam Sears, Counsel

Dale Penn, Committee Assistant

 

 

MEASURES/ISSUES HEARD:        

HB 2569A – Public Hearing and Work Session

SB 424 – Work Session

HB 2222A – Work Session

HB 2281 – Work Session

HB 2224A – Public Hearing

HB 2227 – Public Hearing

HB 2312A – Public Hearing

HB 2969 – Public Hearing and Work Session

HB 2322A – Public Hearing

 

 

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 156, A

003

Chair Burdick

Calls the meeting to order at 1:10 p.m. and opens a public hearing on HB 2569A.

HB 2569A – PUBLIC HEARING

005

Heidi Moawad

Counsel.  Describes HB 2569A relating to exempting law enforcement officials acting in the course of official duty and performing lawful intervention techniques from motor vehicle accident reporting requirements.  Introduces and describes the –A2 amendment (EXHIBIT A).  Introduces written testimony from Steve Swenson, Captain of the Operations Support Division, City of Eugene Police Department in support of HB 2569A (EXHIBIT C).

028

Brian DeLashmutt

Oregon Council of Police Associations.  Testifies in support of HB 2569A with the –A2 amendment.

040

Pete Shepherd

Deputy Attorney General, Oregon Department of Justice.  Testifies in support of HB 2569A with the –A2 amendment.

046

Mardell Ployhar

Oregon Department of Justice.  Submits testimony and testifies in support of HB 2569A (EXHIBIT B).

068

Ployhar

Declares the Department of Justice’s support for the –A2 amendment (Exhibit A).

084

Chair Burdick

Inquires about the “lawful intervention techniques” listed in the bill on page 2.

103

Shepherd

Describes the definition and intent of the term “lawful intervention technique.”

114

Chair Burdick

Asks who would make the judgment call on which intervention technique is used and how it is interpreted.

119

DeLashmutt

Explains that the employer would determine whether the act was an intervention technique as opposed to an accident.

128

Shepherd

Talks about who would be responsible for such a decision.

141

DeLashmutt

Stresses that there is usually discussion between the officers and the supervising commanders throughout the “chase.”

147

Chair Burdick

Wonders about a change in the drafting language that would clarify the definition and protocol behind the term “lawful intervention techniques.”

145

Shepherd

Declares their support for such an amendment.

161

DeLashmutt

Talks about how that type of an amendment is not truly needed.

167

Moawad

Comments on her own experience in this type of situation. 

184

Sen. Starr

States that he supports the bill.

193

Sen. Ringo

Talks about the –A2 amendment and inquires where the differences exist between the two versions.

207

Moawad

Answers with information on the changes made with the –A2 amendment.

228

Chair Burdick

Declares her support for the bill with the –A2 amendment.

239

Sen. Ringo

Inquires about the confusing drafting language of the –A2 amendment.

248

Ployhar

Clarifies the confusion in the –A2 amendment.

270

DeLashmutt

Talks about the policy of exemption from filing a report if the officer is using the right technique and method for the situation.

303

Shepherd

Discusses the records established during crashes involved in civilian accidents and those involved in officer-related occurrences.

325

Chair Burdick

Closes the public hearing on HB 2569A and opens a work session on HB 2569A.

HB 2569A – WORK SESSION

334

Sen. Starr

MOTION:  Moves to ADOPT HB 2569A-A2 amendments dated 5/31/05.

 

Starr

VOTE:  5-1-1

AYE:               5 - Beyer, Starr C., Walker, Whitsett, Burdick

NAY:               1 - Ringo

EXCUSED:     1 - Prozanski

339

Chair Burdick

The motion CARRIES.

342

Sen. Starr

MOTION:  Moves HB 2569A to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Prozanski

344

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. STARR will lead discussion on the floor.

347

Chair Burdick

Closes the work session on HB 2569A and recesses the meeting at 1:34 p.m. in order to attend the Governor’s signing of HCR 11.

353

Chair Burdick

Calls the meeting to order at 1:52 p.m. and opens a work session on SB 424.

SB 424 – WORK SESSION

361

Joe O’Leary

Counsel.  Describes SB 424 relating to giving the court discretion in awarding temporary custody of parties’ children when the court issues a restraining order under the Family Abuse Prevention Act.  Introduces and describes the -3 amendment (EXHIBIT D).

400

Sen. Starr

MOTION:  Moves to ADOPT SB 424-3 amendments dated 6/6/05.

 

 

VOTE:  4-0-3

EXCUSED:  3 - Prozanski, Ringo, Walker

404

Chair Burdick

Hearing no objection, declares the motion CARRIED.

407

Sen. Starr

MOTION:  Moves SB 424 to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

411

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. BURDICK will lead discussion on the floor.

415

Chair Burdick

Closes the work session on SB 424 and opens a work session on HB 2222A.

HB 2222A – WORK SESSION

418

Joe O’Leary

Counsel.  Describes HB 2222A relating to providing that the Department of Justice has a lien upon certain judgments, settlements, and compromises obtained by a person who received an award of compensation from the department, or on whose behalf compensation was paid by the department, for compensable crime. 

450

Sen. Starr

MOTION:  Moves HB 2222A to the floor with a DO PASS recommendation.

451

Sen. Whitsett

Declares his support of the bill but expresses his doubts over the costs analysis.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

479

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. BEYER will lead discussion on the floor.

TAPE 157, A

022

Chair Burdick

Closes the work session on HB 2222A and asks for unanimous consent to suspend the rules to allow Sen. Walker and Prozanski to vote on SB 424.

029

Sen. Burdick

MOTION:  Moves to SUSPEND the rules for the purpose of allowing Sen. Walker and Sen. Prozanski to vote on SB 424.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

030

Chair Burdick

Hearing no objection, declares the motion CARRIED.

031

Sen. Walker

Votes Aye on SB 424.

034

Sen. Prozanski

Votes Aye on SB 424.

036

Chair Burdick

Opens a work session on HB 2281.

HB 2281 – WORK SESSION

040

William E. Taylor

Counsel.  Describes HB 2281 relating to modifying the laws governing the circuit courts and appellate courts.  Introduces and describes the -1 amendment (EXHIBIT E).

059

Chair Burdick

Asks about the costs per page in the bill.

064

Bradd Swank

Oregon Judicial Department.  Discusses the costs and fees that would be accrued if this bill passed.

075

Sen. Beyer

Declares his support for the bill with the -1 amendment.

079

Sen. Starr

MOTION:  Moves to ADOPT HB 2281-1 amendments dated 5/25/05.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

082

Chair Burdick

Hearing no objection, declares the motion CARRIED.

083

Sen. Starr

MOTION:  Moves HB 2281 to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

087

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. WHITSETT will lead discussion on the floor.

091

Chair Burdick

Closes the work session on HB 2281 and opens a public hearing on HB 2224A.

HB 2224A – PUBLIC HEARING

093

Heidi Moawad

Counsel.  Describes HB 2224A relating to requiring the appellate court, after reversing any count but not all counts on appeal, to remand the case to the trail court for resentencing on the remaining count or counts.

111

Jonathan Fussner

Oregon Department of Justice.  Submits testimony and testifies in support of HB 2224A (EXHIBIT F).

160

Fussner

Suggests that they need clarification of the current law.  Talks about a possible amendment for the bill relating to cases with felony accounts as opposed to misdemeanor offenses.

191

Sen. Whitsett

Asks about the re-sentencing and how it would not represent potential double jeopardy through enhanced sentencing.

197

Fussner

Discusses the reasoning behind why this bill would not represent double jeopardy.

238

Sen. Whitsett

Describes a hypothetical situation involving double jeopardy and this bill.

247

Fussner

Agrees that there might be an argument, but he does not believe the courts would not attach a constitutional conflict with the bill.

255

Chair Burdick

Brings up the Blakely decision’s effects on this bill.

266

Fussner

Discusses how Blakely might apply to current law and this bill.

284

Chair Burdick

Talks about consecutive sentences possibly being interpreted as upward departures, and how that would affect the bill.

313

Peter Gartlan

Chief Defender, Office of Public Defense Services.  Submits testimony and testifies in opposition to HB2224A (EXHIBIT G).

358

Gartlan

Addresses the double jeopardy and equal protection charges that may arise if this bill passes.

407

Chair Burdick

Inquires about consecutive sentences.

412

Gartlan

Replies that the judge would look at the situation and determine if consecutive sentences would be imposed.

430

Chair Burdick

Asks if separate courts could make the sentence concurrent with each other’s decisions.

445

Sen. Prozanski

Offers information on this issue.

TAPE 156, B

010

Chair Burdick

Inquires if Blakely would impact this bill as well.

012

Gartlan

Replies that he does see issues with Blakely and this bill.

028

Chair Burdick

Closes the public hearing on HB 2224A and opens a public hearing on HB 2227.

HB 2227 – PUBLIC HEARING

034

Heidi Moawad

Counsel.  Describes HB 2227 relating to authorizing the introduction of victim impact evidence in non-death penalty aggravated murder sentencing proceedings. 

052

Jonathan Fussner

Oregon Department of Justice.  Submits testimony and testifies in support of HB 2227 (EXHIBIT H).

078

Richard Wolf

Oregon Criminal Defense Lawyers Association.  Testifies in opposition to HB 2227.

124

Wolf

Describes the proceedings between the defendant and the state of Oregon in these cases. 

141

Wolf

Gives a brief history of Oregon’s death penalty statute.

188

Wolf

Describes a recent Supreme Court Case, Kansas vs. Marsh relating to the death penalty case. 

231

Sen. Beyer

Wonders if the state chose not to retry the sentencing, would the presumptive sentence of life without parole become the sentence.

233

Wolf

States that he does not believe so and talks about the possibility of a parole sentence.

244

Sen. Whitsett

Inquires about character witnesses and mitigating circumstances in sentencing hearings for aggravated murder.

249

Wolf

Declares that they are permissible and permitted.

258

Sen. Whitsett

Wonders if the testimony is required to be proven (character references, mitigating circumstances, etc.).

265

Wolf

Replies that the jury will deem whether such evidence will be sufficient to be allowed the opportunity of parole.

335

Sen. Ringo

Asks about the defendant offering mitigating evidence why they deserve the possibility of parole.

349

Wolf

Stresses that he does not believe that a jury should be asked to decide whose evidence and testimony is more worthwhile in determining parole.

360

Sen. Ringo

Wonders if you can allow the weighing of evidence for death-penalty cases why not cases involving the possibility of parole.

364

Wolf

States that he does not believe such an option is an acceptable method.

385

Sen. Ringo

States that he is arguing that there is no place for aggravating evidence.

389

Wolf

Replies that the proper place for victim impact evidence is in wrongful death suits.

404

Sen. Prozanski

Addresses the rights of the victim at sentencing.

444

Wolf

Recites information on a recent case involving a victim’s family not wanting to seek the death penalty sentence for the individual convicted of murder.  This information was not presented to the jury: stresses that equality in information must be upheld in these circumstances then.

TAPE 157, B

016

Wolf

Brings up the question of when this bill would apply if it passes: retroactivity, etc.

034

Fussner

Responds to the opposition to the bill; talks about the burden of proof facing the jury.

051

Sen. Prozanski

Inquires about the instructions for the jury involving mitigating circumstances.

056

Fussner

Responds that 10 or more jury members are needed, and talks about the roles of the defendant in this situation.

063

Sen. Ringo

Asks about the methods and protocols facing the jury in these situations.

065

Fussner

Talks about the instructions given to the jurors in these types of cases.   Argues that the information given to the jurors is detailed enough to give them the knowledge of how to judge these cases.

090

Sen. Ringo

Asks if the bill passed right now, would the jury receive instructions on the different types of evidence relating to determining the possibility of parole.

097

Fussner

Replies that he is not sure on how instruction would change after the passage of the bill.

101

Sen. Prozanski

Stresses that increased instruction might be needed for jurors.

112

Moawad

Inquires about past court cases dealing with this issue.

121

Fussner

Discusses the court of appeals approving the admission of this evidence and how the Supreme Court declined to comment on the issue. 

148

Steve Doell

President, Crime Victims United.  Addresses the rights that crime victims have been fighting for in Oregon for many years.  Declares that voters have agreed with these rights on three separate occasions.

191

Chair Burdick

Closes the public hearing on HB 2227 and opens a public hearing on HB 2312A.

HB 2312A – PUBLIC HEARING

192

Heidi Moawad

Counsel.  Describes HB 2312A relating to extending the time that a motion requesting the performance of DNA testing must be filed.  Introduces and describes the –A3 amendment (EXHIBIT I).

221

Andrea Meyer

American Civil Liberties Union.  Submits testimony and testifies in support of HB 2312A with the –A3 amendment (EXHIBIT J).

270

Meyer

States that nobody in the last several years has used this statute.

300

Meyer

Talks about the arguments raised by the Oregon District Attorney’s Association four years ago against this bill.

340

Meyer

Continues reading testimony in support of HB 2312A (Exhibit J).

385

Kelly Skye

Oregon Criminal Defense Lawyers Association.  Submits testimony and testifies in support of HB 2312A (EXHIBIT K).

436

Brad Berry

Yamhill County District Attorney.  Oregon District Attorney Association.  Testifies in opposition to HB 2312A.

TAPE 158, A

024

Chair Burdick

Inquires if it is more important for a victim to have closure than to have a person who is innocent remain in prison.

029

Berry

Asserts “absolutely not.”  Talks about D.N.A evidence being used in existing cases.

043

Chair Burdick

Wonder what the harm would be in allowing this if the existing system isn’t being currently used.

046

Berry

Declares that this bill will open up retrying of many cases.  Stresses that he cannot imagine any District Attorney who would not test new D.N.A. evidence that could exonerate an individual.

068

Chair Burdick

Asks if they have had many applications for this program.

071

Berry

States that there have been very few applications.  Talks about somewhere between 5-7% of cases actually going to trial in the state.

080

Sen. Beyer

Inquires if the Governor could exonerate someone who brings new D.N.A. evidence to a case.

084

Berry

Replies yes, but stresses that any District Attorney would do what they could to take the person out of jail as soon as possible.

094

John Bradley

Multnomah County District Attorney’s Office.  Declares their opposition to HB 2312A.

120

Bradley

Stresses that most of these cases are going to apply to sex offense cases.  Discusses the costs in maintaining the evidence for these cases.

152

Sen. Ringo

Inquires about the evidence that the state is keeping.

155

Bradley

Talks about the evidence protocol.  Argues that this is not a problem facing the court system right now.

189

Berry

Comments on the need to retain much of the evidence.

202

Chair Burdick

Brings up the issue of the burden of proof being on the defendant in those cases to prove their innocence.

207

Berry

Details the problems with this bill.

224

Bradley

Stresses that there is no statute that dictates the state needs to retain evidence.

251

Sen. Ringo

Comments on the choice of the state to get rid of certain forms of evidence.

269

Bradley

Declares that they hold on to such evidence for awhile, but it’s tough to tell how long in many cases.

282

Chair Burdick

Closes the public hearing on HB 2312A and opens a public hearing on HB 2969.

HB 2969 – PUBLIC HEARING

287

Heidi Moawad

Counsel.  Describes HB 2969 relating to modifying the provisions relating to mandatory sentencing for crimes involving the use or threatened use of a firearm.

310

John Bradley

Multnomah County District Attorney’s Office.  Testifies in support of HB 2969.

345

Bradley

Discusses the ambiguity in the law dealing with this issue.

380

Chair Burdick

Closes the public hearing and opens a work session on HB 2969.

HB 2969 – WORK SESSION

386

Sen. Starr

MOTION:  Moves HB 2969 to the floor with a DO PASS recommendation.

 

 

VOTE:  4-0-3

EXCUSED:  3 - Prozanski, Walker, Whitsett

390

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. RINGO will lead discussion on the floor.

393

Chair Burdick

Closes the work session on HB 2969 and opens a public hearing on HB 2322A.

HB 2322A – PUBLIC HEARING

397

Heidi Moawad

Counsel.  Describes HB 2322A relating to expanding assault in the first degree to include intentionally or knowingly causing serious physical injury to a child under 13 years of age.  Introduces the fiscal analysis of HB 2322A (EXHIBIT L).

430

John Bradley

Multnomah County District Attorney’s Office.  Submits testimony and testifies in support of HB 2322A (EXHIBIT M).

TAPE 159, A

024

Sen. Ringo

Asks about if this problem exists when dangerous weapons are used (including fists).

026

Bradley

Replies no (including fists).  Continues his discussion in support of HB 2322A.

059

Moawad

Describes the reasoning behind the choice for the House Judiciary Committee to draw the line at 13 years of age.

075

Brad Berry

Yamhill County District Attorney.  Oregon District Attorney’s Association.  Testifies in support of HB 2322A.

104

Kelly Skye

Oregon Criminal Defense Lawyers Association.  Testifies in opposition to HB 2322A because it increases a mandatory minimum sentence.

140

Skye

Continues discussion in opposition to HB 2322A by discussing the age limitations for shaken baby syndrome.

180

Chair Burdick

Closes the public hearing on HB 2322A.  Moves HB 2282A, HB 2297, and HB 2361A to Wednesday, June 7, 2005. 

212

Chair Burdick

Adjourns the meeting at 4:03 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. HB 2569A, -A2 amendment, staff, 1 p
  2. HB 2569, written testimony, Mardell Ployhar, 2 pp
  3. HB 2569, written testimony, staff, 1 p
  4. SB 424, -3 amendment, staff, 41 pp
  5. HB 2281, -1 amendment, staff, 1 p
  6. HB 2224, written testimony, Jonathan Fussner, 1 p
  7. HB 2224, written testimony, Peter Gartlan, 2 pp
  8. HB 2227, written testimony, Jonathan Fussner, 1 p
  9. HB 2312A, -A3 amendment, staff, 4 pp
  10. HB 2312A, written testimony, Andrea Meyer, 4 pp
  11. HB 2312A, written testimony, Kelly Skye, 1 p
  12. HB 2322, Fiscal Analysis, staff, 1 p
  13. HB 2322, written testimony, John Bradley, 1 p