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.