Bill Text: GA SB290 | 2011-2012 | Regular Session | Introduced

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Bill Title: Georgia Innocence Inquiry Commission; create; provide a purpose; define certain terms; membership and appointment

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Introduced - Dead) 2012-02-27 - Senate Read Second Time [SB290 Detail]

Download: Georgia-2011-SB290-Introduced.html

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11 LC 21 1228

Senate Bill 290

By: Senators Ramsey, Sr. of the 43rd, Brown of the 26th, Fort of the 39th, Orrock of the 36th, Thompson of the 5th and others

A BILL TO BE ENTITLED
AN ACT

To amend Title 15 of the Official Code of Georgia Annotated, relating to courts, so as to create the Georgia Innocence Inquiry Commission; to provide a purpose; to define certain terms; to provide for membership and appointment of members; to provide for administrative support; to provide for a director and staff and duties of the director; to provide for powers and duties of the commission; to provide for referrals of claims of innocence before the commission; to provide for inquiries; to provide for a waiver of procedural safeguards and privileges by the convicted person; to provide for discovery of information; to provide for hearings; to provide for judicial review; to provide for a report to the General Assembly; to provide for a contingency effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 15 of the Official Code of Georgia Annotated, relating to courts, is amended by adding a new chapter to read as follows:

"CHAPTER 25

15-25-1.

This chapter 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 chapter.

15-25-2.

As used in this chapter, the term:

(1) 'Claim of factual innocence' means a claim on behalf of a living person convicted of a felony in the superior court, asserting the complete innocence of any criminal responsibility for the felony for which the person was convicted and for any other reduced level of criminal responsibility relating to the crime, and for which there is some credible, verifiable evidence of innocence that has not previously been presented at trial or considered at a hearing granted through post-conviction relief.

(2) 'Commission' means the Georgia Innocence Inquiry Commission established by this chapter.

(3) 'Director' means the director of the Georgia Innocence Inquiry Commission.

(4) 'Victim' means the victim of the crime or, if the victim of the crime is deceased, the next of kin of the victim.

15-25-3.

(a) There is established the Georgia Innocence Inquiry Commission. The commission shall be an independent commission under the judicial branch for administrative purposes.

(b) The Administrative Office of the Courts shall provide administrative support to the commission as needed. The director of the Administrative Office of the Courts shall not reduce or modify the budget of the commission or use funds appropriated to the commission without the approval of the commission.

15-25-4.

(a) The commission shall consist of eight voting members as follows:

(1) One shall be a superior court judge;

(2) One shall be a prosecuting attorney;

(3) One shall be a victim advocate;

(4) One shall be engaged in the practice of criminal defense law;

(5) One shall be a member of the public who is not an attorney and who is not an officer or employee of the judicial branch;

(6) One shall be a sheriff holding office at the time of his or her appointment; and

(7) The vocations of the two remaining appointed voting members shall be at the discretion of the Chief Justice.

(b) The Chief Justice of the Supreme Court of Georgia shall make the initial appointment for the members identified in paragraphs (4) through (6) of subsection (a) of this Code section. The Chief Judge of the Court of Appeals shall make the initial appointment for the members identified in paragraphs (1) through (3) of subsection (a) of this Code section. After an appointee has served his or her first three-year term, the subsequent appointment shall be by the Chief Justice or Chief Judge who did not make the previous appointment. Thereafter, the Chief Justice or Chief Judge shall rotate the appointing power, except for the two discretionary appointments identified by paragraph (7) of subsection (a) of this Code section, which shall be appointed by the Chief Justice.

(c) The appointing authority shall also appoint alternate commission members for the commission members he or she has appointed to serve in the event of scheduling conflicts, conflicts of interest, disability, or other disqualification arising in a particular case. The alternate members shall have the same qualifications for appointment as the original member. In making the appointments, the appointing authority shall make a good faith effort to appoint members with different perspectives of the justice system. The appointing authority shall also consider geographical location, gender, and racial diversity in making the appointments.

(d) The superior court judge who is appointed as a member under subsection (a) of this Code section shall serve as chairperson of the commission. The commission shall have its initial meeting no later than six months following the date this chapter becomes effective, at the call of the chairperson. The commission shall meet a minimum of once every six months and may also meet more often at the call of the chairperson. The commission shall meet at such time and place as designated by the chairperson. Notice of the meetings shall be given at such time and manner as provided by the rules of the commission. A majority of the members shall constitute a quorum. All commission votes shall be by majority vote.

15-25-5.

(a) Of the initial members, two appointments shall be for one-year terms, three appointments shall be for two-year terms, and three appointments shall be for three-year terms. Thereafter, all terms shall be for three years. Members of the commission shall serve no more than two consecutive three-year terms plus any initial term of less than three years. Unless provided otherwise by this chapter, all terms of members shall begin on January 1 and end on December 31. Members serving by virtue of elective or appointive office may serve only so long as the officeholders hold those respective offices. The Chief Justice may remove members with cause. Vacancies occurring before the expiration of a term shall be filled in the manner provided for the members first appointed.

(b) The commissioners shall receive no salary but shall be reimbursed for their reasonable and necessary expenses actually incurred in the performance of their functions; provided, however, that such expenses shall not exceed those allowed to members of the General Assembly.

15-25-6.

(a) The commission shall employ a director. The director shall be an attorney licensed to practice in this 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 bequests from any source.

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

(c) The commission may, with the approval of the Legislative Services Committee, meet in the Coverdell Legislative Office Building or may meet in an area provided by the director of the Administrative Office of the Courts. The director of the Administrative Office of the Courts shall provide office space for the commission and the commission staff.

15-25-7.

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 commission investigations and recommendations to the trial court at the completion of each inquiry; and

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

15-25-8.

(a) A claim of factual innocence may be referred to the commission by any court, person, or agency. The commission shall 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.

(b) No formal inquiry into a claim of factual 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 shall not apply to matters unrelated to a convicted person's claim of factual 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 shall be present at the signing of the agreement. If counsel does not represent the convicted person, the commission chairperson 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 use any measure provided in Title 17, relating to criminal procedure, and Chapter 11 of Title 9, the 'Georgia Civil Practice Act,' to obtain 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 Superior Court of Fulton County or of the 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 commission chairperson in the chairperson's 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 superior court.

(f) 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.

15-25-9.

(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 shall be solely in the discretion of the commission. Any public hearing held in accordance with this subsection shall be subject to the commission's rules of operation.

(b) The commission may compel the testimony of any witness. If a witness asserts his or her privilege against self-incrimination in a proceeding under this chapter, the commission chairperson, in the chairperson's judicial capacity, may order the witness to testify or produce other information if the chairperson first determines that the witness's testimony will likely be material to reach a correct factual determination in the case at hand. However, the commission chairperson shall not order the witness to testify or produce other information that would incriminate the witness in the prosecution of any offense other than an offense for which the witness is granted immunity under this subsection. The order shall prevent a prosecutor from using the compelled testimony, or evidence derived therefrom, to prosecute the witness for previous false statements made under oath by the witness in prior proceedings. The prosecutor has a right to be heard by the commission chairperson prior to the chairperson issuing the order. Once granted, the immunity shall apply throughout all proceedings conducted pursuant to this chapter. The limited immunity granted under this subsection 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 chapter, or prosecution for any other crimes.

(c) 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 chapter. If the victim plans to attend proceedings otherwise closed to the public, the victim shall notify the commission at least ten days in advance of the proceedings of his or her intent to attend. If the commission determines that the victim's presence may interfere with the investigation, the commission may close any portion of the proceedings to the victim.

(d) After hearing the evidence, the full commission shall vote to establish further case disposition as provided by this subsection. All eight 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 eight voting members of the commission conclude there is sufficient evidence of factual innocence to merit judicial review, the case shall be referred to the senior superior court judge in the district of original jurisdiction by filing with the clerk of 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 eight voting members of the commission conclude there is sufficient evidence of factual innocence to merit judicial review, the case shall be referred to the senior superior court judge in the district of original jurisdiction. If less than five of the eight 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 eight 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 superior court in the district of original jurisdiction, with a copy to the district attorney and the senior superior court judge. The director of the commission shall use all due diligence to notify immediately the victim of the commission's conclusion in a case.

(e) 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.

(f) All proceedings of the commission shall be recorded and transcribed as part of the record. All commission member votes shall be recorded in the record. All records and proceedings of the commission shall be confidential and shall be 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 and a full transcript of the hearing before the commission, shall become public at the time of referral to the superior court. Commission records for conclusions of insufficient evidence of factual innocence to merit judicial review shall remain confidential, except as provided in subsection (e) of this Code section.

15-25-10.

(a) If the commission concludes there is sufficient evidence of factual innocence to merit judicial review, the chairperson or a person designated by the chairperson shall present such evidence to the full court. If the court concludes that there is sufficient evidence of factual innocence, the court shall remand the case to the original trial court for further action.

(b) If there is an allegation of or evidence of prosecutorial misconduct in the case, the chairperson of the commission or the district attorney of the district of conviction may request the director of the Administrative Office of the Courts 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 factual innocence to merit judicial review. Upon receipt of a request under this subsection to appoint a special prosecutor, the director of the Administrative Office of the Courts may temporarily assign a district attorney, assistant district attorney, or other qualified attorney, including one from the prosecutorial district where the convicted person was tried, to represent the state at the hearing before the superior court judge. However, the director of the Administrative Office of the Courts shall not appoint as special prosecutor any attorney who prosecuted or assisted with the prosecution in the trial of the convicted person. The appointment shall be made no later than 20 days after the receipt of the request.

(c) The superior court judge shall enter an order setting the case for hearing 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.

(d) The district attorney of the district of conviction, or the district attorney's designee, shall represent the state at the hearing before the superior court judge, except as otherwise provided by this Code section.

(e) The superior court judge 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 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 shall not assert any privilege or prevent a witness from testifying. The convicted person shall have 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.

(f) The superior court judge 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.

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

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

(i) The superior court judge shall rule as to whether the convicted person has proved by clear and convincing evidence that the convicted person is innocent of the charges. If the ruling is in the affirmative, the court shall enter dismissal of all or any of the charges. A final ruling of the superior court shall be appealable in the same manner as a final order of conviction.

15-25-11.

(a) Unless otherwise authorized by this chapter, the decisions of the commission shall be final and shall not be subject to further review by appeal, certification, writ, motion, or otherwise.

(b) A claim of factual innocence asserted through the Georgia Innocence Inquiry Commission shall not adversely affect the convicted person's rights to other post-conviction relief.

15-25-12.

Beginning on the first day of January following the first full year of the commission's existence, and annually thereafter, the commission shall report on its activities to the Senate Judiciary Committee and the House Committee on Judiciary. The report may contain recommendations of any needed legislative changes related to the activities of the commission. The report shall recommend the funding needed by the commission, the district attorneys, and the Georgia Bureau of Investigation in order to meet their responsibilities under this chapter. Recommendations concerning the district attorneys or the Georgia Bureau of Investigation shall only be made after consultations with the prosecuting attorneys council and the Attorney General."

SECTION 2.

This Act shall become effective only upon the effective date of a specific appropriation of funds for the purposes of this Act as expressed in a line item making specific reference to such funds in a General Appropriations Act enacted by the General Assembly.

SECTION 3.

All laws and parts of laws in conflict with this Act are repealed.