67th Legislature HB 603.1
1 HOUSE BILL NO. 603
2 INTRODUCED BY J. TREBAS
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT PROVIDING FOR A MONTANA INNOCENCE INQUIRY
5 COMMISSION; PROVIDING FOR APPOINTMENT OF THE COMMISSION, TERMS OF OFFICE, AND
6 COMMISSION STAFF; PROVIDING THAT THE COMMISSION REVIEW CLAIMS OF INNOCENCE;
7 PROVIDING A PROCESS FOR THE COMMISSION TO RECOMMEND JUDICIAL REVIEW OF CERTAIN
8 CONVICTIONS; PROVIDING RULEMAKING AUTHORITY; AND PROVIDING A DELAYED EFFECTIVE
9 DATE.”
10
11 WHEREAS, postconviction review of credible claims of factual innocence supported by verifiable
12 evidence not previously presented or evident at trial or at a hearing granted through postconviction relief should
13 be addressed as expeditiously as possible to ensure the innocent as well as the guilty receive justice; and
14 WHEREAS, public confidence in the justice system is strengthened by a thorough and timely inquiry
15 into claims of factual innocence; and
16 WHEREAS, factual claims of innocence, which are determined to be credible, can most effectively be
17 evaluated through a complete and independent investigation and review.
18
19 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
20
21 NEW SECTION. Section 1. Purpose. [Sections 1 through 13] establish an extraordinary procedure
22 to investigate and determine credible claims of factual innocence that require an individual to voluntarily waive
23 rights and privileges as described in [sections 1 through 13].
24
25 NEW SECTION. Section 2. Definitions. The following definitions apply to [sections 1 through 13]:
26 (1) "Claim of factual innocence" means a claim on behalf of a living person convicted of a felony in the
27 state, asserting the complete innocence of any criminal responsibility for the felony for which the person was
28 convicted and for any other reduced level of criminal responsibility relating to the crime, and for which there is
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1 some credible, verifiable evidence of innocence that has not previously been presented at trial or considered at
2 a hearing granted through postconviction relief.
3 (2) "Claimant" means a person asserting that they are completely innocent of any criminal
4 responsibility for a felony crime on which the person was convicted and for any other reduced level of criminal
5 responsibility relating to the crime.
6 (3) "Commission" means the Montana innocence inquiry commission established in [section 3].
7 (4) "Director" means the director of the Montana innocence inquiry commission.
8 (5) "Formal inquiry" means the stage of an investigation when the commission has entered into a
9 signed agreement with the original claimant and the commission has made efforts to notify the victim.
10 (6) "Victim" means the victim of the crime, or if the victim of the crime is deceased, the next of kin of
11 the victim.
12
13 NEW SECTION. Section 3. Commission established -- rulemaking authority. (1) There is
14 established the Montana innocence inquiry commission. The commission is an independent commission
15 attached to the office of court administrator for administrative purposes only as provided in 2-15-121.
16 (2) The office of court administrator shall provide administrative support to the commission as
17 needed. The office of court administrator may not reduce or modify the budget of the commission or use funds
18 appropriated to the commission without the approval of the commission. The office of court administrator shall
19 conduct an annual audit of the commission.
20 (3) The commission shall adopt rules to implement the provisions of [sections 1 through 13].
21
22 NEW SECTION. Section 4. Appointing authority - membership -- chair -- meetings -- quorum.
23 (1) The commission is composed of eight voting members appointed as follows:
24 (a) one district court judge appointed by the chief justice of the supreme court; and
25 (b) seven members appointed by the governor as follows:
26 (i) one prosecuting attorney;
27 (ii) one victim advocate;
28 (iii) one person engaged in the practice of criminal defense law;
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1 (iv) one person who was wrongfully convicted or a family member of a person who was wrongfully
2 convicted;
3 (v) one sheriff holding office at the time of appointment; and
4 (vi) two public members who are not attorneys and who are not officers or employees of the judicial
5 branch.
6 (2) The appointing authority shall also appoint alternate commission members for the commission
7 members appointed to serve in the event of scheduling conflicts, conflicts of interest, disability, or other
8 disqualification arising in a particular case. The alternate members must have the same qualifications for
9 appointment as the original member. In making the appointments, the appointing authority shall make a good
10 faith effort to appoint members with different perspectives of the justice system. The appointing authority must
11 also consider geographical location, gender, and racial diversity in making the appointments.
12 (3) The district court judge who is appointed as a member shall serve as chair of the commission. The
13 commission shall hold its initial meeting no later than January 31, 2022, at the call of the chair. The commission
14 shall meet a minimum of once every 6 months and may also meet more often at the call of the chair. The
15 commission shall meet at the time and place as designated by the chair. Notice of the meetings must be given
16 at the time and in the manner as provided by the rules of the commission. A majority of the members
17 constitutes a quorum. All commission votes must be by majority vote unless otherwise specified.
18
19 NEW SECTION. Section 5. Terms of members -- compensation -- expenses. (1) Of the initial
20 members, two appointments must be for 1-year terms, three appointments must be for 2-year terms, and three
21 appointments must be for 3-year terms. Thereafter, all terms must be for 3 years. Members of the commission
22 may serve no more than two consecutive 3-year terms plus any initial term of less than 3 years. Unless
23 provided otherwise, all terms of members begin on January 1 and end on December 31.
24 (2) Members serving by virtue of elective or appointive office, except for the sheriff, may serve only as
25 long as the officeholders hold those respective offices. The commission may remove a member for cause.
26 Vacancies occurring before the expiration of a term must be filled in the manner provided for the members first
27 appointed.
28 (3) The commission members may not receive salary for serving. All commission members may
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1 receive per diem and travel expenses.
2
3 NEW SECTION. Section 6. Director and other staff. (1) The commission shall employ a director.
4 The director shall report to the commission. The director must be an attorney licensed to practice in the state at
5 the time of appointment and at all times during service as director. The director shall assist the commission in
6 developing rules and standards for cases accepted for review, coordinate investigation of cases accepted for
7 review, maintain records for all case investigations, prepare reports outlining commission investigations and
8 recommendations to the trial court, and apply for and accept on behalf of the commission any funds that may
9 become available from government grants, private gifts, donations, or devises from any source.
10 (2) Subject to the approval of the chair, the director shall employ other staff and shall contract for
11 services as is necessary to assist the commission in the performance of its duties, and as funds permit.
12 (3) The office of court administrator shall provide office space for the commission and the commission
13 staff.
14
15 NEW SECTION. Section 7. Duties. The commission has the following duties and powers:
16 (1) to establish the criteria and screening process to be used to determine which cases are accepted
17 for review;
18 (2) to conduct inquiries into claims of factual innocence, with priority given to those cases in which the
19 convicted person is currently incarcerated solely for the crime for which the person claims factual innocence;
20 (3) to coordinate the investigation of cases accepted for review;
21 (4) to maintain records for all case investigations;
22 (5) to prepare written reports outlining commission investigations and recommendations to the trial
23 court at the completion of each inquiry; and
24 (6) to apply for and accept any funds that become available for the commission's work from
25 government grants, private gifts, donations, or devises from any source.
26
27 NEW SECTION. Section 8. Claims of innocence. (1) A claim of factual innocence for any conviction
28 may be referred to the commission by a court, a state or local agency, or a claimant's counsel or be made
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1 directly by the claimant. The commission may not consider a claim of factual innocence if the convicted person
2 is deceased. A claimant who received notice pursuant to subsection (3)(b) and did not make a claim of factual
3 innocence is barred from investigation of a claim of factual innocence by the commission absent a showing of
4 good cause and approval of the commission chair. The determination of whether to grant a formal inquiry
5 regarding any other claim of factual innocence is in the discretion of the commission. The commission may
6 informally screen and dismiss a case summarily at its discretion.
7 (2) (a) A formal inquiry into a claim of innocence may not be made by the commission unless the
8 director or the director's designee first obtains a signed agreement from the convicted person in which the
9 convicted person waives the convicted person's procedural safeguards and privileges, agrees to cooperate with
10 the commission, and agrees to provide full disclosure regarding all inquiry requirements of the commission. The
11 waiver under this subsection (2)(a) does not apply to matters unrelated to a convicted person's claim of
12 innocence. The convicted person has the right to advice of counsel prior to the execution of the agreement and,
13 if a formal inquiry is granted, throughout the formal inquiry. If counsel represents the convicted person, then the
14 convicted person's counsel must be present at the signing of the agreement. If counsel does not represent the
15 convicted person, the commission chair shall determine the convicted person's indigency status and, if
16 appropriate, enter an order for the appointment of a public defender for the purpose of advising on the
17 agreement. If the convicted person has requested a specific attorney with knowledge of the case, the director
18 shall inform the office of state public defender of the request for their consideration.
19 (b) Forensic testing and claimant interviews may not be conducted by the commission prior to
20 obtaining a signed agreement from the convicted person.
21 (3) (a) If a formal inquiry regarding a claim of factual innocence is granted, the director shall use all
22 due diligence to notify the victim in the case and explain the inquiry process. The commission shall give the
23 victim notice that the victim has the right to present the victim's views and concerns throughout the
24 commission's investigation.
25 (b) Absent a showing of good cause and approval of the commission chair, if a formal inquiry
26 regarding a claim of factual innocence is granted, the commission shall use all due diligence to notify each
27 codefendant of the claim that an investigation will be conducted and that if the codefendant wishes to file a
28 claim as well, they shall do so within 60 days from receipt of the notice or their claim may be barred from future
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1 investigation by the commission.
2 (c) If a formal inquiry regarding a claim of factual innocence is granted, the director shall provide a
3 confidential case status update for each case in formal inquiry to the county attorney, the convicted person, and
4 defense counsel, if any, at least once every 6 months. If there is no defense counsel, the update must be
5 provided to the county attorney, the convicted person, and referring counsel, if any. The case status update
6 must include a summary of the actions taken since the last update and the results of any forensic testing that
7 has been conducted.
8 (4) (a) The commission may use any measure provided in Title 46 and the Montana Rules of Civil
9 Procedure to obtain information necessary to its inquiry. The commission may also do any of the following:
10 (i) issue process to compel the attendance of witnesses and the production of evidence;
11 (ii) administer oaths;
12 (iii) petition the district court of the first judicial district or the original jurisdiction for enforcement of
13 process or for other relief; and
14 (iv) prescribe its own rules of procedure.
15 (b) All challenges with regard to the commission's authority or the commission's access to evidence
16 must be heard by the commission chair in the chair's judicial capacity, including any required in camera review.
17 (5) While performing duties for the commission, the director or the director's designee may serve
18 subpoenas or other process issued by the commission throughout the state in the same manner and with the
19 same effect as an officer authorized to serve process.
20 (6) All state discovery and disclosure statutes in effect at the time of formal inquiry are enforceable as
21 if the convicted person were currently being tried for the charge for which the convicted person is claiming
22 innocence.
23 (7) If, at any point during an inquiry, the convicted person refuses to comply with requests of the
24 commission or is otherwise considered to be uncooperative by the commission, the commission shall
25 discontinue the inquiry.
26
27 NEW SECTION. Section 9. Commission proceedings. (1) At the completion of a formal inquiry, all
28 relevant evidence must be presented to the full commission in a public hearing. Any public hearing held in
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1 accordance with this section is subject to the commission's rules of operation. The commission's rules of
2 operation may not exclude the county attorney or defense counsel from any portion of the hearing.
3 (2) The commission may compel the testimony of a witness. If a witness asserts the witness's
4 privilege against self-incrimination in a proceeding under [sections 1 through 13], the commission chair, in the
5 chair's judicial capacity, may order the witness to testify or produce other information if the chair first determines
6 that the witness's testimony will likely be material to the investigation and necessary to reach a correct factual
7 determination in the case at hand. However, the commission chair may not order the witness to testify or
8 produce other information that would incriminate the witness in the prosecution of any offense other than an
9 offense for which the witness is granted immunity under this subsection. The order must prevent a prosecutor
10 from using the compelled testimony, or evidence derived from the compelled testimony, to prosecute the
11 witness for previous false statements made under oath by the witness in prior proceedings. The prosecutor has
12 a right to be heard by the commission chair prior to the chair issuing the order. When granted, the immunity
13 applies throughout all proceedings conducted pursuant to [sections 1 through 13]. The limited immunity granted
14 under this section