 Good morning. We're back at Senate Judiciary. The delay was due to waiting for our legislative council to join us. And she's probably helping the House figure something out. But hopefully she'll be back. The conversation this morning is regarding H128, which is defense based upon victim identity. I think there was a lot of discussion here in committee regarding this bill. The House made changes to the bill. And we were here today to discuss the markup with the bill and whether or not we have any amendments. I think we should begin that discussion. I don't. I don't remember if we did we hear from the network. No, I don't, I don't have any notes from them. I can check. Heard from bore. Yang. Yes. I don't think we heard. Jessica, did you give testimony on this bill? I did. Senator. Yes. We're fully in support of this bill. Thank you. I did get a letter from a practitioner down in Brattle row. Robert OSHA. It was opposed to the bill based upon limiting. I don't know if all of you received that letter. I did. I know Bob very well. What's the name again? So we can look it up. Robert Ocer. Thank you. Thank you. You sent a link. I can forward it to. It was sent to all the committee, but I don't know. He did get it. Yeah. April 12th, Monday. Do you want me to post it or did you want me to do something? Okay. I just wanted to mention that he had sent a letter to the entire committee. Opposing the limiting defenses. I don't have a proposed amendment. You remember, Bryn put up draft 2.1. And I said the other day that. That looked good to me. It made the addition of. The word non-criminal. And it added or sent it to the committee. I don't have a proposed amendment. You remember Bryn put up draft 2.1. And I said the other day that. I don't have a proposed amendment. And it added or sentencing. And one other. Phrasing change. But I thought the addition of non-criminal. Took care of something we discussed on the first day, which was. To clarify that. If a sexual advance is referred to here. If a sexual advance is referred to here. If a sexual advance is referred to here. Anything that crossed itself into the line of. Criminality or. Or anything like that. So. Yeah. Yeah, I think this draft is clear. It's in 2.1 Alice. It's up on the website. Yes. I have the, I have it, but whereabouts in the bill was that change made. Oh, I'm sorry. It's a, it's on line 16. Oh, okay. Non-forcible non-criminal. Yep. Okay. Thanks. When do we. When was that? What, when was that. Yeah. Forward. Yeah. Where could I find that it's, if you go under bills. You know, on our. Committee webpage, if you go under bills. And you click on 128. And then drafts. There are two there. And the second one is 2.1. It's not bills in committee. Can you post that, you know where it is? Yeah, it's posted, but do you want me to share it? Yes, please share it. So we can go over it this morning and then. Here from witnesses awaiting Brins arrival. Okay, hold on. I just. Hold on. One second, guys. Thank you. Yep. Great. Thank you so much. Okay. Thank you. Thank you. Thank you. Thank you. Thank you. Prosecution prosecution. Prosecution or sentencing. Otherwise mitigate the severity of the fence. Victor made a non. Forcible. Non-criminal. Romantic or sexual. Any comments from any of the witnesses. On this particular. This particular draft. I can't see you. So if you do. I'm. I'm joined. Okay. Rebecca. Anybody who's a witness. Who's on the. Who's available. Is welcome to speak, but I can't see you because. Raise your hand. Did we hear from. Mrs. Turner, Ms. Turner. Attorney Turner. I don't think we heard from her about this particular draft. We heard the up her opposition to the bill. Hi. This is attorney. Hi, this is attorney Turner. I'm just joining on, I'm just wanting to let you know I am here. Let me just get settled in. Are you. Are you asking for. No, I'm not. Anybody, anybody would like to weigh in on draft one point. Is it 2.1? 2.1. I'm draft 2.1. That's on the screen right now. Either yourself. I'm welcome you. I'm welcoming any commitments from you, Rebecca or David. Sure. Jessica. I'm not sure. On the radio or Brian Grisham or anyone else's. Might want to come. You don't have to comment. And this is attorney. I wouldn't like to comment. Just point up my notes here. It's crazy. Double booked here. Come. So. So again, I understand. So I'm going to take this opportunity for the record, Rebecca Turner Pellet Division, Office of the Defender Generals. I did listen in to the testimony last time, reviewing this particular draft, understand a lot of the considerations was to the sentencing side. And the question being whether or not the, it was appropriate or not to have the judge consider this kind of material in in sentencing and I just wanted to share with this community that there was some question about what materials could or could not be considered by a judge in sentencing and I see that judge, I don't know if Judge Grierson is here, but it's extraordinarily expansive standard, proper and accurate. Okay. And, and that's because again, we, we, meaning the law, the legislature case law, Kamala, it's, it's determined that all, all any, any information that will inform the judge as to the complete picture of the person standing for him or her before imposing sentence that we want the judge to have that exercise, the discretion to consider it to not put it off, leave it off the table. I understand that there are concerns about biases entering in at this stage and how there has been discussion about a zero tolerance for bias. I wanted to weigh in there that while there was discussion about how retention proceedings are inherently a check on that. I also wanted to throw in the mix that we also judges are subject to judicial conduct rules as their own separate set of policies that would limit or prohibit them from, you know, using those biases in such a way that would be improper. I also wanted to pull back, because I know the focus has been on sentencing. And what is so significant and sweeping about this rule. Pull it back to the trial. It's part of this. I know again that that wasn't the specific discussion but to underline the defender generals position position on this. It's to show that this is this is unprecedented in terms of categorically preventing the subject matter which is pretty broad. It is broader than what I understood or heard from the witnesses last time in terms of what was hoped to be avoided to come into court proceedings period, specifically related to furthering perhaps, you know, hate towards lgbqt communities were specifically the complainant involved. I want to just, when I look at this language of what cannot come in one and two it's much broader than that so I wanted to put that on on on the committee's attention again, as well as the fact that we have nothing like this in our current criminal code that corresponds to the rape shield statute. But the rape shield statute prohibits the admissibility of certain evidence only has to certain types of crimes whereas this one would apply to any and all criminal offenses. It also only prohibits it for a certain purpose. And here's the way that I see this prohibition to play out as set out in the initial paragraph lines nine through 12, but particularly line 10. And this shall not be used period as a defense to defendants criminal conduct. So what, what does that mean defense to defendants criminal conduct is that does that prohibit defendant from cross examining the state's key witness. Perhaps gender or gender identity is going to a theory of mistaken identity. That it wasn't, you know, that there was this belief that for whatever reason, that was a possible theory of the case of defense or credibility of a witness. Is that going to a defense of the defendants case again in our criminal world. What is considered a defense and the right to present a defense and confrontation is very expansive. And I think that that line 10 language can is too broadly drawn as is the term phrasing criminal conduct. And it's prohibiting the use of this evidence as a defense to criminal conduct. Is that going to the alleged charge conduct for which the defendant or person is presumptively innocent of having committed. Is it going to separate conduct not currently charged. Is it going to previous convictions where the state had to prove beyond reasonable doubt that that was involved. And so I look at line 10 as being involving such broad phrasing undefined and sweeping that it's, it's, it's alarming in terms of, of its breath. Again, I leave it to the committee that there is just nothing like this in our current code, prohibiting this kind of information from entering into the trial portion or sentencing, without the table from consideration as to whether or not it's otherwise admissible under the rules of evidence. You think it's constitutional. I think that it is not constitutional in terms of how it interferes with a defendant's right to present a defense. I'm sorry, go ahead. I'll share because this came up in the House Judiciary Committee discussion. I raised the same constitutional questions. I forgot if it was David Scher or not raised a counterpoint and a case that said that that the legislature is free to, to limit in specific instances, the admissibility of evidence going to a particular defense. And I'm forgetting the US Supreme Court case. And the issue there, though, is that it was much more narrow in terms of what was prohibited. Again, I read and look at line 10, and the sweeping nature of the prohibition. What is the definition of criminal conduct? How is that to be understood? How is defense to be understood? It certainly is delineated further in lines 10, 1112. You know, because from my perspective as a defense attorney, defense to defend, to defend in criminal conduct can include attacking the witnesses, states, key witnesses, credibility, impeachment, for instance. Any question, any further, any questions from anyone on the committee? I do have a question. Senator Bruce. Miss Turner, you, you mentioned that this might prohibit the use of a mistaken identity defense. And I'm wondering if you could give us an example of what you're thinking of how, how would this be necessary as a defense in what you're calling a mistaken identity case. Let's say the defense is I didn't do it. Or I thought it was someone else, right, that I knew. No, it wasn't. And what if the basis for, for the misunderstanding was gender, or gender identity. No, when you say the misunderstanding, do you mean that someone killed someone else? Yes, but this is to any member of this is to any criminal offense line nine prosecution so it could be disorderly conduct. It could be a lawful trespass. It could be another low level misdemeanor involving a crime against a person. Right, right, but this is, this is specifically not about mistaking something it's about discovering something. Discovery of knowledge about or the potential disclosure of the crime victims actual or perceived sexual orientation. So I, I hear you saying that maybe they would mistake the person for another person. Look at line 17 and 18. Yeah. And that and that's where where that could be. But I still am not understanding that only applies to the person's gender gender identity or sexual orientation. So, I'm another understanding how you broaden that out to mistaking one person for another person. Because they thought that it was how they held the person is describing the situation where the identity is mistaken, could be based on certain identifying characteristics involving gender is what I mean. The main is that I understand and hear the testimony the witnesses as to the concern, which is really focused and narrow, and that is what I've heard over and over and over again from the witnesses. What I'm trying to draw out here is how the language and to as much and then combine it in the other sections as much more broadly phrase for open ended. I can't. I was trying to tease out what what you meant in terms of mistaken identity I can't from what you've answered I can't see any problem with the language in my opinion. This, this speaks to the discovery of someone's gender gender identity or sexual orientation. And so finding finding out those, those facts. You can't use as a defense for criminal conduct, and I don't know how mistaken identity comes into it but I, I would suggest that that's more a red herring than than something we really need to follow out at this point. I would counter that that this is exactly why these types of case by case details specific questions and analysis is best suited to go before the judge to be argued by the individual attorneys. And that's where the relevance the otherwise missibility can be considered and the, the way that this legislation is currently phrased. It isn't even a possibility for the judge to consider it, because it is just off the table. There's no argument to be made that whatever is being proffered by Defense Council fits within this language, but I guess what I'm saying is you, you haven't given us an instance where Defense Council needs to make that argument, other than simply the gay panic defense. I, I thought you were suggesting that there was some possible use that was being excluded. That was not the gay panic defense. So what I hear you saying is that the gay panic defense itself is what you're defending. What I'm saying is that I understand the testimony in support of this bill is that the, the goal is to keep out a very particular type of defense, and even assuming that is something that is desired. I mean, this language is being broader, you're saying that you're not hearing me make those connections clearly. And so I can try to do that again. But my point, my, my, my point though encounter what I'm more broadly trying to say is, is filling in the details, filling in the questions that you may counter back and push back on whether or not it fits. And that's exactly the exercise that is best suited to happen in the courtroom, where you have the opposing council, making these arguments with actual actual an actual live case and controversy, where the judge can say how much or how critical is this to the constitutional right to present a defense, or how prejudicial this is otherwise. And so then they can judge can apply rules of evidence to keep it out because it's unduly prejudicial. Or perhaps it is permissible for one purpose but not enough, and therefore, perhaps specialized jury instruction the judge gives in terms of how to use this for one purpose and not the other is warranted. And this proposal is presented, however, is none of that can go before the court, it just cannot happen. And that's where I, I, that's the red flag for me is where it is just not, is there are too many questions that come up in any given case, in terms of how closely, how close it is and are not, and I would hate to see this is this this language is currently sweeping. And, and when it's linked to an absolute ban. That's where I see the danger and being impermissibly encroaching on a defendants and a person's right to present defense, being intolerable. Any other questions or comments from Jessica work. Rebecca. Thank you. Thank you. Sometimes when an effort is national. And we wonder what's, you know what, what's going on in the other states. And obviously there are cases. There are some in number of states that are moving in this direction or in a number of states that are moving in the opposite direction in terms of people's terms of legislation. So if you look at some of the states that are trying to limit. We went through the bathroom, which we went through the. Now it's the sports, and we're there. People can enter into sports and seeing states. Going in one direction which in number of states going in this direction where we're trying to protect. And not and saying that you just, this is just not an excuse. That's the reason that I see. But I realize it's controversial. And that some members of the committee may not. And I respect that. But at some point we're going to have to decide. Can I ask a question. Yes. So I'm just wondering in the scenario whereby. Say you're at an event. And, and, you know, people aren't all that close to each other, but somebody gets close to you and puts their hand on your buttocks, and you turn around and push them away, and they fall down and get hurt. When you're when that comes up for, so they're hurt badly and the prosecution decides to charge the person who pushed the person away. As part of their defense. You know, are they not able to say something about why they pushed them away. Even if there, if there was a perception that someone was making a move on them, so to speak. You know, was that would they not be able to say that. Well, we do have the non forcible non criminal language. Right. So, if, if something falls. Within those categories, then this wouldn't apply. Is there a question for anyone in particular, Senator. Some, some lawyer there. David, did you want, did you want to respond to that? Sure. Thank you, Senator. David chair with the attorney general's office for the record. Senator Nick and response to your question. It's important for us to remember that the only things that are being prevented from introduction. The only evidence being prevented from being introduced under this bill is evidence of what is in a defendant's head. So conduct of the kind that you're talking about. You know, like if there is some sort of a time that whatever that might be whatever have the scenario might play out that is not being prevented from introduction to my conduct I mean physical action in the world. It's not about evidence of what was in somebody's head. So if there's physical action in the world that is a plausible defense for some sort of use of force. This bill does not prevent that the use of that evidence. Even though in his head, perhaps he thinks, well, this is somebody making a move on me. So what's was in his head can't you know if it was in his head falls within what's in subdivision one or subdivision to that of this bill that can't be introduced, but the conduct, the physical action in the world can be. And so that defense remains. I've got to leave right at 12 o'clock and I've got and Bryn is here. Thank you for being here, Bryn gives us about five minutes. In you. Bryn. Was there any discussion of having this. I noticed that it's effective on passing discussion of that in the other body. No, they didn't. I don't believe there was any discussion of the effective date. Mr chair. Yes. I, I don't know if you'd entertain a motion. I would make a motion if you were. Yep. I would move that the committee forward bill 2.1 favorably to the to the full Senate as amended here. Actually, Senator Bruce has moved that we amend each one 28 with the version. In front of us. 2.1. Is there any further discussion. Senator Bennett. So, I've spent quite a bit of time over the past few days working on this issue. And I took the liberty of sending out a. Mass email to the defender general's listserv trying to get a reaction from the folks on that listserv probably about 50 lawyers or so. Asking two questions. The first was, has anybody ever used this defense or even heard of this defense. There were a few who had said they had heard of the defense, but nobody who had ever tried to use it. The second question was, what about the sentencing stage? How do you feel about the legislature dictating to a judge? What the judge can and cannot consider when sentencing an individual. Several responses probably about a dozen. And I just want to take a moment to read a little bit from one of them. This particular email came from Kevin teach out. And Kevin says my initial response to your second question is that the legislature cannot dictate through statute what does or does not make someone temporarily insane or have diminished capacity. I say this with full awareness of the discrimination and harm that LGBTQ individuals face, but the issue for me is broader than that. How do you legislate diminished capacity or powerful emotional reactions, which are by definition uncontrollable. Does the legislature ban other temporary insanity crime or passion provocation defenses. Does the legislature have the power to preclude diminished capacity defense where, for example, a spouse catches their partner in bed with another person. The answer is no, because diminished capacity is a mental condition and not a social political or legislative issue. And I'm not arguing that homophobia or the gay panic defense is reasonable or justified. All I'm saying is that it is not for the legislature to decide what trauma is valid and what trauma is not. What if a defendant was a child abused at the current hat and or the diocese of Burlington, and a sexual incident brought up an intensely traumatic memory. Back to Rebecca's point that there is at the trial phase something that is leaving most of us in the defense bar uncomfortable. And I also wanted to reiterate that my bigger problem was at the sentencing stage, and this amendment is something that I cannot vote for. The bill overall is making a political statement. And as a politician, not a defense attorney, I do feel the time is ripe to make a political statement. So I'm going to end up voting against the amendment, but if the amendment is attached, I'm probably coming out in favor of the bill itself. So I don't want to leave anyone with the impression that I'm abandoning completely my defense oriented train of thought, because one of the snarky responses that I got from the listserv was a fairly simple observation that any defense attorney in the right mind would never bring this kind of a defense because it would automatically subject their client and their malpractice insurance rates to a an enhanced penalty, or an enhanced sentence under our hate crimes statute. And as a result, I come away from this feeling like at the end of the day. This is a political statement that is ripe for the times. And I fear less that we will end up having to face this issue on the constitutionality question, and either the trial or the sentencing stage, because frankly I don't see any defense attorney, making this kind of a defense in this day and age. I apologize. I said earlier I have to leave at noon time, and there's now 1159. Thank you Joe, we're going to schedule this for tomorrow morning at 9am to continue the vote on this. Unfortunately, I have to take my wife to an appointment at 1215. I'm a citizen legislature. I know I'll be criticized for leaving in the middle of what we deal with. So, if we can just adjust the schedule a little bit tomorrow morning to give us time to take up this bill and the vote we haven't started the boat yet. 15 minutes. I don't know 15 be fine. Okay. Thank you Joe I appreciate it. I'm sorry, committee and witnesses but life living in a