SB237

ENGROSSED

By Senators Brewbaker, Hightower, Whatley, Stutts, Marsh, Reed, Ward, Smitherman and Figures

A BILL TO BE ENTITLED AN ACT

To create the Alabama Innocence Inquiry Commission within the Administrative Office of Courts; to provide for the duties and functions of the commission; to authorize the commission to order judicial review of certain capital cases in which the defendant has been sentenced to death and there is found to exist credible, verifiable evidence of innocence that has not previously been presented at trial or considered at a hearing granted through postconviction relief; and to provide that no execution date shall be set for any person while that person's case is pending before the commission.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. There is established the Alabama Innocence Inquiry Commission. The commission shall be an independent commission under the Administrative Office of Courts for administrative purposes. The Administrative Office of Courts shall provide administrative support to the commission as needed. The Director of the Administrative Office of Courts shall not reduce or modify the budget of the commission or use funds appropriated to the commission without the approval of the commission.

Section 2. For purposes of this act, the following words have the following meanings:

(1) CLAIMANT. A person asserting that he or she is completely innocent of any criminal responsibility for a capital crime upon which the person was convicted and sentenced to death.

(2) CLAIM OF FACTUAL INNOCENCE. A claim on behalf of a living person convicted of a capital crime in Alabama, asserting the complete innocence of any criminal responsibility for the capital crime for which the person was convicted, and for which there is some credible, verifiable evidence of innocence that has not previously been presented at trial or considered at an evidentiary hearing granted through postconviction relief.

(3) COMMISSION. The Alabama Innocence Inquiry Commission established by this act.

(4) DIRECTOR. The Director of the Alabama Innocence Inquiry Commission.

(5) VICTIM. The next of kin of the victim.

Section 3. This act establishes an extraordinary procedure to investigate and determine credible claims of factual innocence that shall require an individual to voluntarily waive rights and privileges as described in this act.

Section 4. (a) The commission shall consist of nine voting members as follows:

(1) One circuit court judge appointed by the Circuit Judges Association.

(2) One district attorney appointed by the District Attorneys Association.

(3) One victim advocate appointed by the Governor.

(4) One person engaged in the practice of criminal defense law appointed by the Alabama Criminal Defense Lawyers Association.

(5) One member of the public who is not an attorney and who is not an officer or employee of the judicial branch of government appointed by the Governor.

(6) One sheriff appointed by the Alabama Sheriffs Association.

(7) One member appointed by the President Pro Tempore of the Senate.

(8) One member appointed by the Speaker of the House of Representatives.

(9) One member appointed by the Alabama Lawyers Association.

(b) The makeup of the commission shall be inclusive and reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.

(c) The circuit court judge who is appointed as a member under subsection (a) shall serve as chair of the commission. The commission shall have its initial meeting no later than 30 days after the effective date of this act, at the call of the chair. The commission shall meet a minimum of once every six months and may also meet more often at the call of the chair. The commission shall meet at such time and place as designated by the chair. A majority of the members shall constitute a quorum.

(d) Each member shall be appointed to a term of three years. Members serving by virtue of elective or appointed office may serve only so long as they hold those respective offices. Vacancies occurring before the expiration of a term shall be filled in the manner provided for the members first appointed.

Section 5. The members of the commission, while engaged in the performance of their duties outside the counties of their residence or in attending meetings of the commission, shall be reimbursed as authorized by law for per diem and mileage as provided by Article 2 of Chapter 7 of Title 36, Code of Alabama 1975.

Section 6. (a) The commission shall employ a director. The director shall be an attorney licensed to practice in the state at the time of appointment and at all times during service as director. The director shall assist the commission in developing rules and standards for cases accepted for review, coordinate investigation of cases accepted for review, maintain records for all case investigations, prepare reports outlining commission investigations and recommendations to the trial court, and apply for and accept on behalf of the commission any funds that may become available from government grants, private gifts, donations, or devises from any source.

(b) Subject to the approval of the chair, the director may employ such other staff and may contract for services as is necessary to assist the commission in the performance of its duties, and as funds permit.

(c) The commission may meet in an area provided by the Director of the Administrative Office of Courts. The Director of the Administrative Office of Courts shall provide office space for the commission and the commission staff.

Section 7. The commission shall have the following duties and powers:

(1) To establish the criteria and screening process to be used to determine which cases shall be accepted for review.

(2) To conduct inquiries into claims of factual innocence, with priority to be given to those cases in which the convicted person is currently incarcerated solely for the crime for which he or she claims factual innocence.

(3) To coordinate the investigation of cases accepted for review.

(4) To maintain records for all case investigations.

(5) To prepare written reports outlining investigations and recommendations of the commission to the trial court at the completion of each inquiry.

(6) To apply for and accept any funds that may become available for the commission's work from government grants, private gifts, donations, or devises from any source.

Section 8. (a) A claim of factual innocence may be referred to the commission by any court, a state or local government agency, a claimant, or a claimant's counsel. The commission may not consider a claim of factual innocence if the convicted person is deceased. The determination of whether to grant a formal inquiry regarding any other claim of factual innocence is in the discretion of the commission. The commission may informally screen and dismiss a case summarily at its discretion. After receiving a claim of factual innocence, the commission has 90 days to determine whether or not to proceed with a formal inquiry into the claim. If the commission takes no action, at the expiration of 90 days, the claim shall be deemed dismissed. Upon good cause shown, the commission may grant one extension of 60 days beyond the initial 90-day period in order to make a determination.

(b) No formal inquiry into a claim of innocence shall be made by the commission unless the director or the director's designee first obtains a signed agreement from the convicted person in which the convicted person waives his or her procedural safeguards and privileges, agrees to cooperate with the commission, and agrees to provide full disclosure regarding all inquiry requirements of the commission. The waiver under this subsection does not apply to matters unrelated to a convicted person's claim of innocence. The convicted person shall have the right to advice of counsel prior to the execution of the agreement and, if a formal inquiry is granted, throughout the formal inquiry. If counsel represents the convicted person, then the convicted person's counsel must be present at the signing of the agreement. If counsel does not represent the convicted person, the chair of the commission shall determine the convicted person's indigency status and, if appropriate, enter an order for the appointment of counsel for the purpose of advising on the agreement.

(c) If a formal inquiry regarding a claim of factual innocence is granted, the director shall use all due diligence to notify the victim in the case and explain the inquiry process. The commission shall give the victim notice that the victim has the right to present his or her views and concerns throughout the commission's investigation.

(d) The commission may subpoena information necessary to its inquiry. The commission may also do any of the following: Issue process to compel the attendance of witnesses and the production of evidence, administer oaths, petition the Circuit Court of Montgomery County or of original jurisdiction for enforcement of process or for other relief, and prescribe its own rules of procedure. All challenges with regard to the commission's authority or the commission's access to evidence shall be heard by the chair of the commission in his or her judicial capacity.

(e) While performing duties for the commission, the director or the director's designee may serve subpoenas or other process issued by the commission throughout the state in the same manner and with the same effect as an officer authorized to serve process of the circuit courts.

(f) All state discovery and disclosure statutes in effect at the time of formal inquiry shall be enforceable as if the convicted person were currently being tried for the charge for which the convicted person is claiming innocence.

(g) If, at any point during an inquiry, the convicted person refuses to comply with requests of the commission or is otherwise deemed to be uncooperative by the commission, the commission shall discontinue the inquiry.

Section 9. (a) At the completion of a formal inquiry, all relevant evidence shall be presented to the full commission. As part of its proceedings, the commission may conduct public hearings. The determination as to whether to conduct public hearings is solely in the discretion of the commission. Any public hearing held in accordance with this section shall be subject to the rules of operation of the commission.

(b) The commission may subpoena witnesses to testify or produce other information. A witness may assert his or her privilege against self incrimination. If the chair determines that the testimony of the witness will likely be material to reach a correct factual determination in the case, the commission may offer a witness immunity from perjury or obstruction of justice for previous testimony in exchange for his or her testimony before the commission. Notwithstanding the foregoing, the commission may not offer the witness immunity for the underlying crime for which the defendant who is the subject of the inquiry by the commission was convicted. Once granted, the immunity shall apply throughout all proceedings conducted pursuant to this act. The limited immunity granted under this section shall not prohibit prosecution of statements made under oath that are unrelated to the commission's formal inquiry, false statements made under oath during proceedings under this act, or prosecution for any other crimes.

(c) The Alabama Innocence Inquiry Commission shall require, as part of its rules of operation, the holding of a prehearing conference at least 10 days prior to any proceeding of the full commission. Only the following persons shall be notified and authorized to attend the prehearing conference: The district attorney, or the district attorney's designee, of the district where the claimant was convicted of the capital crime upon which the claim of factual innocence is based; the counsel of the plaintiff, if any; the chair; the director of the commission; and any commission staff designated by the director. The district attorney, or designee, shall be provided with both an opportunity to inspect any evidence that may be presented to the commission that has not previously been presented to any judicial officer or body and with any information that he or she deems relevant to the proceedings. Prior to any commission proceedings, the district attorney or designee is authorized to provide the commission with a written statement, which shall be included in the record of the commission's proceedings. Any statement included in the record shall be part of the commission's record of proceedings pursuant to subsection (g).

(d) The director shall use all due diligence to notify the victim at least 30 days prior to any proceedings of the full commission held in regard to the victim's case. The commission shall notify the victim that the victim is permitted to attend proceedings otherwise closed to the public, subject to any limitations imposed by this act. If the victim plans to attend proceedings otherwise closed to the public, the victim shall notify the commission at least 10 days in advance of the proceedings of his or her intent to attend.

(e) After hearing the evidence, the full commission shall vote to establish further case disposition as provided by this subsection. All nine voting members of the commission shall participate in that vote. Except in cases where the convicted person entered and was convicted on a plea of guilty, if five or more of the nine voting members of the commission conclude there is sufficient evidence of factual innocence to merit judicial review, the case shall be referred to the presiding judge of the circuit court in the circuit of original jurisdiction by filing with the clerk of the circuit court the opinion of the commission with supporting findings of fact, as well as the record in support of such opinion, with service on the district attorney in noncapital cases and service on both the district attorney and Attorney General in capital cases. In cases where the convicted person entered and was convicted on a plea of guilty, if all of the nine voting members of the commission conclude there is sufficient evidence of factual innocence to merit judicial review, the case shall be referred to the presiding circuit court judge in the district of original jurisdiction. If less than five of the nine voting members of the commission, or in cases where the convicted person entered and was convicted on a guilty plea less than all of the nine voting members of the commission, conclude there is sufficient evidence of factual innocence to merit judicial review, the commission shall conclude there is insufficient evidence of factual innocence to merit judicial review. The commission shall document that opinion, along with supporting findings of fact, and file those documents and supporting materials with the clerk of the circuit court of the original jurisdiction, with a copy to the district attorney and the presiding judge of the circuit court. The director shall use all due diligence to notify immediately the victim of the commission's conclusion in a case.

(f) Evidence of criminal acts, professional misconduct, or other wrongdoing disclosed through formal inquiry or commission proceedings shall be referred to the appropriate authority. Evidence favorable to the convicted person disclosed through formal inquiry or commission proceedings shall be disclosed to the convicted person and the convicted person's counsel, if the convicted person has counsel.

(g) All commission member votes shall be recorded in the record. All claims of factual innocence and all file records associated with claims of factual innocence proceedings of the commission are confidential and are exempt from public record and public meeting laws except that the supporting records for the commission's conclusion that there is sufficient evidence of factual innocence to merit judicial review, including all files and materials considered by the commission shall become public at the time of referral to the circuit court. Commission records for conclusions of insufficient evidence of factual innocence to merit judicial review shall remain confidential, except as provided in subsection (e).

Section 10. (a) If the commission concludes there is sufficient evidence of factual innocence to merit judicial review, the chair shall request the Chief Justice of the Alabama Supreme Court to appoint a three-judge panel, not to include any trial judge who has had substantial previous involvement in the case, and issue commissions to the members of the three-judge panel to convene a special session of the circuit court of the original jurisdiction to hear evidence relevant to the commission's recommendation. The senior judge of the panel shall preside. The Chief Justice shall appoint the three-judge panel within 20 days of the filing of the commission's opinion finding sufficient evidence of factual innocence to merit judicial review. If the commission concludes that there is credible evidence of prosecutorial misconduct in the case, the chair may request the Attorney General to appoint a special prosecutor to represent the state in lieu of the district attorney of the district of conviction or the district attorney's designee. The request for the special prosecutor shall be made within 20 days of the filing of the commission's opinion finding sufficient evidence of innocence to merit judicial review. Upon receipt of a request under this subsection to appoint a special prosecutor, the Attorney General may temporarily assign a district attorney, assistant district attorney, or other qualified attorney, to represent the state at the hearing before the three-judge panel. The Attorney General shall not appoint as special prosecutor any attorney who prosecuted or assisted with the prosecution in the trial of the convicted person, or is a prosecuting attorney in the district where the convicted person was tried. The appointment shall be made no later than 20 days after the receipt of the request.

(b) The senior circuit court judge shall enter an order setting the case for hearing at the special session of circuit court for which the three-judge panel is commissioned and shall require the state to file a response to the commission's opinion within 90 days of the date of the order. Such response, at the time of original filing or through amendment at any time before or during the proceedings, may include joining the defense in a motion to dismiss the charges with prejudice on the basis of innocence.

(c) The district attorney of the district of conviction, or the district attorney's designee, shall represent the state at the hearing before the three-judge panel, except as otherwise provided by this section.

(d) The three-judge panel shall conduct an evidentiary hearing. At the hearing, the court, and the defense and prosecution through the court, may compel the testimony of any witness, including the convicted person. All credible, verifiable evidence relevant to the case, even if considered by a jury or judge in a prior proceeding, may be presented during the hearing. The convicted person may not assert any privilege or prevent a witness from testifying. The convicted person has a right to be present at the evidentiary hearing and to be represented by counsel. A waiver of the right to be present shall be in writing.

(e) The senior circuit court judge on the panel shall determine the convicted person's indigency status and, if appropriate, enter an order for the appointment of counsel. The court may also enter an order relieving an indigent convicted person of all or a portion of the costs of the proceedings.

(f) The clerk of court shall provide written notification to the victim 30 days before any case-related hearings.

(g) Upon the motion of either party, the senior judge of the panel may direct the attorneys for the parties to appear before him or her for a conference on any matter in the case.

(h) The three-judge panel shall rule as to whether the convicted person has proved by clear and convincing evidence that the convicted person is innocent of the charges. Such a determination shall require a unanimous vote. If the vote is unanimous, the panel shall enter dismissal of all or any of the charges. If the vote is not unanimous, the panel shall deny relief.

Section 11. The Alabama Innocence Inquiry Commission shall report to the Chairs of the House and Senate Judiciary Committees annually by the third legislative day. The report shall recommend the funding needed by the commission to meet its responsibilities under this act.

Section 12. No execution date shall be set for any person while that person's case is pending before the commission.

Section 13. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Innocence Inquiry Commission

Administrative Office of Courts

Evidence

Crimes and Offenses

Criminal Law and Procedure

Court, Circuit