MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 11, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Friday, June 11, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Ernest E. Adler
COMMITTEE MEMBERS ABSENT:
Senator Raymond C. Shaffer (Excused)
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Honorable Michael Fondi, Judge, First Judicial District Court,
Member, Nevada District Judge's Legislative Committee
Ed Irvin, Chief Deputy Public Defender, State of Nevada, Office of the Public Defender
Honorable David Gamble, Judge, Ninth Judicial District Court,
Chairman, Nevada District Judge's Legislative Committee
John P. Sande, III, Lobbyist, Nevada Bankers Association
John Morrow, Public Defender, Washoe County Public Defender's
Office
Noel S. Waters, Lobbyist, Nevada District Attorney's Association
Judy Corbisiero, Member, Nevadans for Constitutional Equality
Victoria D. Riley, Lobbyist, Nevada Trial Lawyers Association
Ben Graham, Lobbyist, Nevada District Attorney's Association
Lucille K. Lusk, Lobbyist, Nevada Coalition of Concerned
Citizens
Dr. Paul Cameron, Chairman, Family Research Institute, Washington, D.C.
Alan Rabkin, General Counsel, Sierra Tahoe Bancorp
David Sarnowski, Deputy Attorney General, State of Nevada, Attorney General's Office
Frank Daykin, Commissioner on Uniform State Law, State of Nevada
Senator James opened the hearing on Senate Bill (S.B.) 514.
SENATE BILL 514: Prohibits certain conduct through which human immunodeficiency virus may be transmitted after testing positive for disease. (BDR 15-2109)
Senator James briefly described the bill. He advised that this bill had been heard previously by the Senate Committee on Judiciary, and that he had asked the Legislative Counsel Bureau (LCB) to provide statutes in other states which have enacted this law. He advised a number of states have set forth language similar to that in S.B. 514, as amended. He stated very few of these use the term "negligently." He stated this is a felony violation in other states, but those statutes contain the following language, as quoted from the Illinois statute:
. . .It shall be an affirmative defense if the person exposed knew the infected person was infected with [human immunodeficiency virus] (HIV), knew the action could result in infection with HIV, and consented to the action with that knowledge.
Senator James advised that would take care of one of the major concerns of the committee, regarding married couples or people in a relationship. The committee is concerned that these people not be made to be committing criminal conduct. Senator James asked if an affirmative defense is a complete defense to a crime.
Ben Graham, Lobbyist, Nevada District Attorney's Association provided testimony. Regarding an affirmative defense, he advised essentially a person would have the responsibility of coming forward with an explanation. An affirmative defense basically says the defendant has a burden of explanation. If the trier of fact believes that, then it would be a valid defense. Mr. Graham explained other affirmative defenses are self defense, statute of limitations and consent.
Senator James asked if there would be any crime left at that point with which to charge a person. The explanation shows that this would not be the case.
Mr. Graham stated he believes this speaks directly to the concerns of the committee. He recalled discussion regarding not being able to prosecute the crime because of the accomplice rule, and other issues involved. He stated the language read by Senator James would clarify, and would provide the defense of assumption of risk.
Dr. Paul Cameron, Chairman, Family Research Institute, Washington, D.C., provided testimony. He stated the institute is responsible, as near as he can determine, for the only random sample regarding the issue of deliberate infection of others. He stated these findings, in his experience and the writings of public health experts, seem probably to be valid. He presented the committee with a table showing a random sample of people living largely in urban America. A copy of this table is attached as Exhibit C. Dr. Cameron stated the institute interviewed people, and asked the question, "when you knew that you had a contagious disease, how often have you had sex to infect others?" He stated it does not make sense that a person would do this. He referred to the index, and pointed out that 1-1/2 percent of men, claiming to be heterosexual, admitted to having deliberately infected others. These men also claim they were successful a certain percentage of the time. Dr. Cameron referred to the rate for homosexuals, showing 4.5 percent of these men admitted to having deliberately infected others. Again, a fair number recorded they were successful as near as they could determine. Dr. Cameron noted the percentages for females were approximately the same.
Dr. Cameron also distributed a brochure to the committee. A copy of this brochure, entitled Violence and Homosexuality is attached as Exhibit D. He referred to the table in this brochure. He noted a further analysis showed individuals engaging in variances of sexual activity, that is those engaging in bondage and discipline, were appreciably more apt to claim that they had deliberately attempted to sexually infect others. This was found to be true for both males and females. He advised these people were asked if they had ever attempted to kill another person, or engaged in activities to do so. A certain fraction of these people admitted to having done this.
Dr. Cameron advised that all of these findings have a bearing on S.B. 514. He stated there are individuals who have in the past, and are currently, engaging in deliberately attempting to infect others. He stated his belief that it would be an act of kindness to prosecute these individuals, to inhibit this activity.
Senator Adler asked for and received confirmation that Dr. Cameron supports the bill as amended.
Senator Titus asked for an explanation of the amendment.
Senator James reiterated his earlier explanation, and added that the language would be:
. . .intentionally, knowingly, or willfully, intended or likely to transmit . . .
Senator James then reiterated the language, regarding an affirmative defense, from the Illinois statute which would be added.
Senator Titus asked for and received confirmation that the words "negligently and wantonly" are to be removed by the amendment.
Senator Titus asked if the phrase "or likely to" is to be left in the language.
Senator James replied that this is what was suggested, but is still open to discussion.
Senator James confirmed there was no further testimony regarding S.B. 514.
SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 514.
SENATOR JACOBSEN SECONDED THE MOTION.
Senator James asked Mr. Graham if the term "or likely" is an appropriate modifier for "intentionally, knowingly or willfully."
Mr. Graham recalled that, pursuant to the earlier discussion, the term "or likely to cause" would be appropriately left in.
Senator James stated the Illinois statute states, "engages in intimate contact." In that statute, there is no secondary intent.
Mr. Graham stated the way the bill is currently written, the crime would be extremely difficult to prove, even with the term "likely" included.
Senator James advised the definition of "intimate contact" under Illinois law is "exposure in a manner that could result." This would be comparable to the term "likely."
Mr. Graham deferred the question to the jurists and attorneys present at the hearing.
Senator James stated he would welcome any comment or suggestion. He stated he would like to pass a law which would be effective, but which will not take in people who do not have the requisite mens rea to be punished.
Honorable David Gamble, Judge, Ninth Judicial District Court, Chairman, Nevada District Judge's Legislative Committee, provided testimony. Judge Gamble advised the language "or likely to" seems not inconsistent with many existing criminal statutes. He stated in these statutes, there is a "knew or should have known" kind of standard. If the person knew the situation would occur it is an intentional act. If the person should have known, that person could not use as a defense, not knowing the situation would happen.
Senator James asked if that kind of thing goes more to negligence.
Senator Adler advised there exist crimes such as this. For example, a gun may be shot toward a crowd, not believing the bullet will hit a person. It is likely a bullet will hit a person, and therefore, the person with the gun would still be charged.
Judge Gamble advised this is related to some extent to the term "wantonly."
Senator James confirmed there was no further discussion, and reviewed the motion on the floor.
THE MOTION CARRIED. (SENATOR SHAFFER WAS ABSENT FOR THE VOTE.)
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Senator James opened the hearing on Assembly Bill (A.B.) 621.
ASSEMBLY BILL 621: Deletes provisions governing recommendation for punishment agreed upon by defendant and district attorney with plea of guilty or nolo contendere to certain offenses. (BDR 14-1455.
Judge Gamble provided testimony in favor of A.B. 621. He advised in the 1991 legislative session, subsection 3 of Nevada Revised Statutes (NRS) 174.065 was passed. He stated the effect of this is that if defense counsel and the district attorney reach an agreement during the plea bargaining phase of a criminal prosecution which includes a specified punishment or a limitation on punishment, and the judge is confronted with the following possibilities. When the plea bargain comes back to the judge with the parole and probation report, and the judge then begins to know something about the defendant and disagrees with that level of punishment, the judge can either go along with the recommended punishment or state this will not be done. In the latter case, the plea bargain is undone, and the defendant has the opportunity to withdraw his guilty plea. Honorable Michael Fondi, Judge, First Judicial District Court, Member, Nevada District Judge's Legislative Committee, stated when a judge takes a guilty plea from a defendant, nothing is known about that defendant. Also, very little is known about the case, except what the defendant chooses to relate. If there has already, at that juncture, been an agreed-upon penalty, the judges do not know if that is accurate, inaccurate, good, bad or indifferent. Further, the judges will not know this until the pre-sentence report is received, several weeks later. Meanwhile, the defendant has already admitted his liability for the criminal act, and there is much work being done by the department of parole and probation to prepare a pre-sentence report. Also, a court calendaring process brings the defendant back for the sentencing date. Judge Gamble advised there is a certain level of coercive effect on a court to go along with that sentence. The impact, if this does not occur, is to undo the work which has been done. Also, the defendant has admitted guilt, and is at that time withdrawing that plea. Judge Gamble stated from the judges' perspective, this is an unworkable system. He advised several judges tried to use it when it was passed, and it simply does not work. He stated the system also has the impact, because of the coercive effect of wanting to go along with the recommendation, of having other people doing the judges' work for them. He advised the judges do not think it is the place of the criminal defendant and the prosecution to determine what the appropriate penalty would be. The statutes provide ranges of punishment for crimes, within which the judges operate, and the judges believe they should retain the discretion to operate within those limits. Judge Gamble advised the procedure can result in beginning with a regular plea bargain, where the judge is left with discretion to sentence, and the case can turn out to be a conditional plea bargain where the judge should allow the defendant to withdraw his or her guilty plea. He advised this happened in the case of Mark Anthony Stahl vs. The State Of Nevada. Judge Gamble provided copies of this decision to the committee, and a copy is attached as Exhibit D. Judge Gamble deferred to Judge Fondi to discuss the Stahl decision.
Honorable Michael Fondi, Judge, First Judicial District Court, provided testimony in support of A.B. 621. Judge Fondi stated the current problem with plea bargaining came into focus when the Stahl decision was handed down by the Nevada Supreme Court on April 27, 1993. He advised in that case, a defendant in Washoe County entered a plea in front of Judge Mills Lane. Judge Lane, during the canvass and taking the plea, indicated to the defendant the decision was up to him, and no one was going to make a bargain which would bind him. The judge asked the defendant if he understood this, and the defendant replied that he did. When the sentencing hearing arrived, because of the pre-sentence report and Judge Lane's feeling about the defendant, Judge Lane told the defendant rather than giving him a concurrent sentence, he was going to give him a consecutive sentence. This was inconsistent with the binding agreement which had been entered into between defense counsel and the prosecutor. The defendant stated he wanted to withdraw his plea. The judge advised him it was too late, and reminded the defendant he had been told it was the judge's discretion. The defendant stated that the Nevada legislature had created a method by which he could withdraw his plea, and that he must be allowed to do so, and go back to square one. Judge Fondi stated in two consecutive meetings of the judges' committee, a resolution has been passed to attempt, in the 1993 legislature, to repeal subsection 3 of NRS 174.065. He advised this repeal is contained in A.B. 621. He stated it became even more clear to the judges after the Stahl decision that this was an un-livable statute. Judge Fondi advised he suggested the amendment in the assembly, which was adopted, making the provision effective on passage and approval, rather than to wait until October 1, 1993. He stated the judges believe the problem is before them at the present time. Judge Fondi stated his belief that the current statute usurps the discretion of the court to make the sentences the judges feel are appropriate. He stated there are times when the district attorney does not know as much about the defendant as he or she would like to know when a plea bargain is about to be entered. The department of parole and probation goes into things which the district attorney's office does not. These things include the defendant's socio-economic status, work performance, whether the defendant is a viable risk for probation, is supervisable, and can make restitution. Judge Fondi stated that as long as the district attorney feels the court has discretion to accept or reject the recommendation, the district attorney feels comfortable with the bargain. He saw an additional problem with the Stahl case. Oftentimes agreements are made which specify a certain fashion of punishment, such as probation, restitution, and drug testing. He stated judges like to fashion sentences which they think are more appropriate for each individual. For example, the judge might feel that the defendant should, in addition, have community service time, and if that was not bargained for, the defendant can withdraw his plea and go back to plead not guilty and demand a trial. Judge Fondi stated this is what the Stahl case tells him, and he believes generally all other judges are in agreement. He advised the ways he has handled those types of cases, since the Stahl decision. He will not accept a plea in which there is a bargain for specified punishment which the district attorney and defense counsel have set forth in writing. He stated either the defendant pleads, with no guarantees, or goes to trial. He stated this is limiting to defense counsel and to the district attorney. He referred to A.B. 564, of the 1991 legislative session.
ASSEMBLY BILL 564 of the
Sixty sixth Session: Revises provisions governing criminal procedure. (BDR 14-2017)
He advised that, during testimony on A.B. 564 of the Sixty-sixth Session before the assembly, representations were made by representatives of the Nevada Attorneys for Criminal Justice division of the Nevada Trial Lawyers Association. These representations emphasized plea recommendations would not be binding on the court. Judge Fondi stated obviously, this is not what occurred in the Stahl case. The supreme court said it is much more than a recommendation, and is binding on the court. Judge Fondi stated there was also suggestion in the testimony regarding A.B. 564 of the Sixty-sixth Session that what really is being done by this kind of a plea bargain is to bring what happens in chambers out into the open. He disagrees with this, and stated NRS 174.035, subsection 5, approved in the 1991 legislative session, requires that for any felony offense wherein the crime is not probatable or the maximum sentence is 10 years or more, the plea bargain must be in writing and presented to the court. He stated his belief that this is a good law. To have the court bound by these decisions is inherently wrong, and an infringement on the separation of powers, which the legislature ought to correct.
Senator James asked for and received confirmation that the plea bargain is binding on the court under the Stahl case, to the extent that if it is not accepted, the proceedings go back to the plea. He asked if the defendants are assumed to know that the court may not accept the plea.
Judge Fondi stated his belief that A.B. 621 it will not affect the number of people wishing to plead. He stated the courts in his district had a substantial number of written plea bargains and negotiations prior to the enactment of this statute, and he has not seen a significant increase. He reiterated his statement that he will not accept pleas under the statute before the Stahl decision, having felt he was not bound by the plea bargains. He stated he did not believe the statute reduced the number of pleas entered into. Negotiations still take place, and many things can be negotiated. He advised that recommendations made to the courts by the prosecutor in any individual case will have a lot of weight. However, he does not want to be totally bound by these recommendations if something turns up in the investigative process showing the recommendation was erroneous. He stated the judge needs to have the discretion to correct this. The statute basically states that if the objective criteria used by the department of parole and probation is inconsistent with the bargain, the defendant may withdraw the plea if the court does not go along with the bargain. He advised this would totally nullify what is being done through the department of parole and probation in the preparation of the reports generated to assist the court in the sentencing process.
Judge Gamble stated his belief that the bulk of the cases will not be negatively affected by the loss of this statute, as they were not negatively affected before its inception. He advised he was one of the judges who decided to attempt to make the statute work. He illustrated the problem this can cause for the judges. He gave the example of a recent case of embezzlement, the defendant being a well-respected member of the community. At the time he took the plea he knew almost nothing about the case. He was presented with a plea bargain agreement, with a binding recommendation for probation, and very little else. It was alleged the defendant had no prior convictions, which was agreed to by the district attorney's office and the defense. Meanwhile, Judge Gamble read in the paper the seriousness of the case. A few weeks later he received a report from parole and probation stating the defendant did have prior convictions, and the matter was very serious. Judge Gamble rejected the plea, which undid the entire process. This resulted in 2 months of work which should not have had to occur.
Senator James asked if the judge is aware of the recommended sentence when the plea is accepted.
Judge Gamble replied the judges know, in the case of the binding agreements.
Judge Fondi stated felony cases of driving under the influence (DUI) are the classic examples he sees because of the requirements of NRS 174.035. The plea memorandum contains the prosecutor's recommendation of 1 year in the Nevada State Prison and a $2,000 fine, which is the absolute minimum sentence. If Judge Fondi gets a pre-sentence report showing the defendant has prior convictions of DUI, and a more serious problem than 1 year in prison will address, he is either bound by that agreement, according to Stahl, or must allow the defendant to withdraw the plea, and go through the entire trial process.
Judge Gamble advised the plea agreements he has seen which attempt to use this statutory section say that the prosecution affirmatively recommends 1 year and a $2,000 fine, and the defense agrees that this is an appropriate sentence. He stated the words "the defense agrees" are the key he looks for to see if the attorneys are attempting to bind the court within subsection 3 of the statute.
Senator James asked if federal judges are bound in this way.
Judge Gamble stated there is determining sentencing in federal court, but he did not know if the judges are bound by a plea bargain.
Judge Fondi stated he did not know if this is the case in federal court, but understands there is something very close to this in the federal statutes.
Judge Gamble advised there have been suggested amendments to A.B. 621. He stated the judges have reviewed these amendments and are opposed to them, as they do not change the current statute.
David Sarnowski, Deputy Attorney General, State of Nevada, Attorney General's Office, provided testimony. Mr. Sarnowski advised he does not practice in the federal courts, but his understanding is that federal judges do not involve themselves without consideration of the statute. He stated the judges are basically forbidden by federal rules of criminal procedure from involving themselves in these types of arrangements.
Noel S. Waters, Lobbyist, Nevada District Attorney's Association, provided testimony in support of A.B. 621. He stated he interpreted the statute as originally enacted to apply where a case could be disposed of by mutual agreement to proceed under NRS 174.065, subsection 3. This would mean that both the defense attorney and the prosecutor would agree to proceed and submit a proposed disposition to the court. In rare instances, a plea negotiation could be disposed of if the court agreed to proceed under that subsection. He visualized the statute applying in cases in which, for example, one co-defendant is charged as an accessory, or having some participation in a criminal scheme, and there might be several other much more culpable individuals involved. Essentially, in exchange for that one individual's cooperation and a plea and sentence to a lessor offense, the testimony of that individual could be secured to be used against the more culpable individuals. He stated under the Stahl decision, that does not seem to be available. It appears to him that if there is any kind of a recommendation for a sentence in a case, the Stahl decision is implicated. He advised the net result has been no plea negotiations other than those in which the prosecutor is free to argue for an appropriate sentence. This diminishes the amount of certainty in the administration process. At this point, the defendant does not even know what the prosecutor thinks he or she should get. This makes it more difficult to dispose of cases. He stated that in view of the current caseloads, cases need to be negotiated rather than proceeding to trial. Mr. Waters stated his belief that it is the judge's job to decide the appropriate sentence, and the defense attorney and prosecutor should be allowed to do their jobs. He stated the repeal of subsection 3 in NRS 174.065 is one of the best ways to accomplish this.
Senator James asked, if this subsection is repealed, will a recommendation for sentence still be submitted, or simply go to the court with a stipulated agreement.
Mr. Waters stated his belief that in his jurisdiction, a recommendation would still be submitted. He stated it may or may not be agreed to by both prosecution and defense. The judge still decides, and Mr. Waters agrees that this is the way it should be. Mr. Waters advised the judge confirms that the defendant understands that no matter what the defense attorney has said, the judge is not bound by recommendations of the district attorney or the defense attorney. The judge advises he can issue the sentence deemed appropriate. The judge then asks the defendant if, with that understanding, he or she is still willing to plead guilty to the charge. The defendant replying yes makes that plea willing and voluntary. Mr. Waters stated his belief that it is therapeutic for a defendant to go through a period of 30 to 45 days of uncertainty, knowing that his or her fate is in the hands of the judge.
Senator James asked Mr. Waters if part of his plea negotiation, after this statute was adopted, was telling the defendant he or she had the right to withdraw the plea.
Ed Irvin, Chief Deputy Public Defender, State of Nevada, Office of the Public Defender, provided testimony. He replied to Senator James' question, saying that is exactly what was believed to be the law before the Stahl decision. He stated that, before that decision, he believed the plea agreement would have to say it was a conditional plea, and the defendant would have to be able to withdraw the plea if the recommended sentence was not given. However, Stahl says that if there is a joint recommendation, it is binding on the judge without having told the judge, defense counsel or the prosecution clearly that this is the case. He advised this is one of the better reasons why this statute should be changed.
Senator James asked whether Stahl just states the plea can be withdrawn, or that the recommendation is binding.
Mr. Irvin stated the recommendation is binding, or the plea must be withdrawn. He stated that in some cases Stahl is being applied to, the memorandum of plea agreement did not say that the defendant had to be able to withdraw the plea.
Mr. Waters advised that, as he reads it, the Stahl decision was not a clearly conditional plea, and when it came before Judge Lane, it was not identified as such. Judge Lane asked if the defendant understood that the judge could give him the sentence he thought the defendant deserved. The defendant answered he did understand. The defendant did not like the sentence and used the argument on appeal that he should have been allowed to withdraw his plea. The supreme court agreed, and language in the decision suggests if the judge decides not to follow the plea agreement, an individualized statement of reasons on the record should be made. This further complicates the judges' rulings.
Senator James quoted Judge Lane from the Stahl decision, "the lawyers will make a recommendation, and I usually follow them, sometimes I don't. You going to take a chance with me on this?" The judge did not say "if I don't follow it, you can withdraw your plea." Senator James stated he has no problem doing the repeal as long as part of the canvass will be for the judge to say "if I don't follow the recommendation, you are stuck with your plea."
Mr. Waters stated this has always been the case in the First Judicial District.
Senator James read from the statute, "if the court rejects the recommendation, the defendant may withdraw the plea."
Mr. Waters stated within a few months of the law's enactment, these conditional pleas were not brought before the court in his jurisdiction. The court did not want to have them, and his office was in agreement.
John Morrow, Public Defender, Washoe County Public Defender's Office, provided testimony in opposition to A.B. 621. He stated his belief that the current law is working well, and should be maintained. He stated he spoke only from Washoe County experience. He advised the bottom line in a criminal case is sentencing. He stated NRS 174.065, as it currently exists, does not restrict sentencing. He stated the judge can impose any sentence he or she wishes, up to the statutory maximum. The judge must go about this differently, but no discretion has been taken away from the court. He stated he suspected the same arguments were made years ago when mandatory minimum sentences were instituted. The judges did not like those either, but they seem to be working well, and serving the citizenry. He stated NRS 174.065 may be unpopular with the judiciary, but is a statute which has worked well when dealing with clients. Mr. Morrow emphasized that at least in Washoe County's experience, the plea withdrawal portion of this statute is not invoked often, but is used a lot. He made that distinction because, as a defense attorney, many clients are very apprehensive about dealing with the system. The client goes into court and a judge asks if the defendant understands that the judge can give him or her a particular sentence for the offense. The client is reluctant to enter a plea under those circumstances. He advised that with NRS 174.065 as currently written, a degree of certainty can be imparted to the defendant as part of the negotiating process. The defendant can be told that he or she will be subject only to a particular penalty which has been agreed to by the attorneys. He advised this does not totally restrict the court, but does give the client some feeling of security. The client feels somewhat in control of the situation.
Senator James asked what occurs where a defendant admits guilt, and then is allowed to rescind that plea. He stated this seems almost like playing the system off of itself. He stated his belief that the general public has a real problem with that.
Mr. Morrow agreed perhaps that aspect exists. However, when involved in the process of plea negotiations, a balancing occurs. Things considered are whether it is a good case, are there witness problems, and does the prosecutor really want to proceed and lose. He advised this is much of what drives plea bargaining. He stated the tradeoff, because it is a negotiation, is that the defendant will plead guilty only if the liability is limited in some way. He stated this works on both sides. When a person enters a plea, it is true guilt that is admitted, and this may be done in several ways. A flat plea of guilty may entered, or a plea of no contest, resulting in a finding of guilt, may be entered. Also, a defendant may enter a plea under the supreme court case Alfred vs. North Carolina. In this instance, a person pleads guilty but does not admit guilt. Mr. Morrow agreed it is probably difficult for the average citizen to comprehend how a plea bargain can be aborted, and a previously entered plea withdrawn. He stated from a practical standpoint as a practitioner, this statute has helped a great deal in being able to formulate plea bargains, and to expedite court business. He stated his office has handled several thousand cases in the past 2 years, and perhaps in two cases, people have actually withdrawn pleas. He stated his office has had no cases in which people have withdrawn pleas and subsequently gone to trial. He advised that in these cases, the defendant has started to rethink his position. These defendants re-negotiate their cases, and there is no trial. He stated generally, the second time around, there is a better feel for what the judge's position is, and the end result is agreeable with all parties.
Senator James stated the agreement has been made, and the prosecutor must go in and ask for that sentence. Then the defendant pleads guilty. He stated his opinion that if the state has a bad case, or if the defendant is innocent, he or she is not going to plead guilty to anything. He stated he has a problem with the notion that if the judge states a stricter sentence will be imposed, the defendant can tell the court he or she withdraws the plea and the court must try him or her. The people of the state of Nevada must then pay to try this individual who has already pleaded guilty. He stated the prosecutor is still bound to recommend that sentence, and as the judges testified, the judge agrees with that most of the time. Senator James asked what happens in a case where the judge has information not available to the district attorney at the time of the negotiation.
Mr. Morrow stated his belief that this is clearly covered by the statute, where the judge may violate the plea bargain, or exercise discretion. He stated this does put the case back to the point where all of the new information is available and re-negotiation may occur. He stated clients sometimes do not tell the truth about themselves. As a defense attorney it is difficult, very embarrassing, and professionally insulting to discover there are additional unknown factors, and that perhaps the defense attorney could have done a better job for society and the system.
Senator Adler stated he has a problem with binding everyone based upon sometimes totally insufficient information, and then going back and consuming a lot of court time. He stated usually if information is not available, it is because the defendant has not been candid with the defense attorney.
Mr. Morrow agrees with the concern for use of court time. He stated from his experience in these cases, a plea must be entered a second time and is a sentencing hearing that is aborted. This takes a very short period of time, and the re-entry of the plea and sentencing is not a large imposition on the court's time, balanced against the client management aspect. Senator Adler stated that the idea of the written plea was to make certain the client fully understood what was going to happen. He stated it says in the written plea that the judge may do anything he or she wants within the range of sentencing. He stated this is pretty good notice as to what is going to happen.
Mr. Morrow reiterated his testimony regarding a person inexperienced in the system. He stated it seriously complicates the issues if there is not some finite ability of the defendant to know where he or she is likely to be going.
Senator Adler asked if there is a socially redeeming factor when the judge scares the defendant with a lengthy sentence and then the defendant ends up on probation.
Mr. Morrow agreed this can be the case.
Senator James stated his belief that this is not a good law. He stated it seems as if the judge is simply shuffling paper, and is not able to do his or her job.
Ben Graham, Lobbyist, Nevada District Attorney's Association, provided testimony. He advised the current statute was meant to alleviate a problem which occurred two or three times per year in Clark County. It was intended to put into statute what was happening in Clark County, which was shopping for a judge who would accept a conditional plea with a cap. He advised the defense attorneys were adamant in attempting to put this into statute, and the district attorneys did not object. It was needed in some jurisdictions in order to get this done even in an occasional case. Mr. Graham stated he disagrees with nothing to which the two judges testified, nor with the public defender, nor Mr. Waters. He stated he did take exception to Mr. Morrow's testimony. Mr. Graham distributed to the committee a proposed amendment to A.B. 621. A copy of this proposed amendment is attached as Exhibit E. Mr. Graham advised that the day after the Stahl decision was argued, he received letters telefaxed to him that this section of the statute either needed to be repealed or amended. He stated Stahl is totally unbearable and cannot remain the law as currently interpreted. Mr. Graham advised his department's position is to repeal the statute. The proposed amendment he offered was on behalf of the Southern Nevada Attorneys for Criminal Justice. He stated the proposed amendment does not speak to the judge's concerns, but he believes if this had been done in 1991, the present hearing would not be needed.
Senator James asked if there would ever be an unconditional plea.
Mr. Graham stated the intent was the conditional plea would only be for a rare, occasional case. He stated he is not urging the committee to adopt the amendment, but rather either to repeal the statute, or to adopt the amendment.
Senator James confirmed there was no further testimony regarding A.B. 621.
SENATOR TITUS MOVED TO DO PASS A.B. 621.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS SHAFFER, SMITH AND MCGINNESS WERE ABSENT FOR THE VOTE.)
* * * * *
The hearing was opened on Assembly Bill (A.B.) 617.
ASSEMBLY BILL 617: Adopts recent revisions of Uniform Commercial Code concerning commercial paper, bank deposits and collections. (BDR 8-1020)
Frank Daykin, Commissioner on Uniform State Law, State of Nevada, provided testimony. He advised the Uniform Commercial Code (UCC) was originally enacted in Nevada in 1965, and became effective in 1967. The UCC was promulgated by the commissioners in 1957. Since the early 1970s, there have been projects of the commissioners on uniform state laws to gradually improve the UCC in the light of experience. He advised A.B. 617 is a revision of Article 3, dealing with negotiable instruments such as checks, promissory notes and the like. The bill also contains a few conforming amendments to Article 4. He advised these provisions have been enacted in a little more than half of the states and, of particular interest to Nevada, have been enacted in California. He advised A.B. 617 conforms to the California enactment.
Alan Rabkin, General Counsel, Sierra Tahoe Bancorp, provided testimony. He advised Sierra Tahoe Bancorp owns Sierra Bank in Nevada and Truckee River Bank in California. He advised he has the benefit of having worked under the California system and the Nevada system concurrently, and was prepared to discuss the difference between the two statutes. He advised generally, the California revisions, consistent with A.B. 617, contain provisions relating to both the consumer and the banking organization. He enumerated the areas affected by the bill. He stated the bill creates an even playing field between the bank and the customer, by putting more certainty in the law than what now exists. He stated the law goes back to when paper transactions were all encompassing, and now in the electronic age, the UCC needs revision to bring it up to speed.
Senator James stated that, even though this area of the law is difficult to read and understand, it affects people in their transactions with banks. He stated he was reluctant to go through the bill in depth in the committee hearing, and suggested holding the bill to have the opportunity for committee members to review the nature of the changes being made.
Mr. Rabkin advised the bill does not change any of the existing laws concerning clearing of checks, time limits, and things of that nature. Those are contained in federal regulations, primarily Regulation CC. He advised none of that federal law can be changed by state law. He stated A.B. 617 clarifies areas of the law which have been decided by case law, and puts that into statute. The bill also benefits the consumer by providing a longer period of time in many instances. He advised the remaining changes are technical, only because of leaving the world of paper transactions and going into the world of electronic transactions. The bill is conforming to make that more certain. Up until now, the courts have had to guess what the UCC means to the electronic world.
Senator James asked if benefiting the consumer would relate to having more time to inspect a bank statement and find unauthorized checks and so forth.
Mr. Rabkin confirmed this is correct. The current statute allows 14 days, and this time is being increased to 30 days, under A.B. 617. He advised the statute of limitations to report either a forged maker endorsement or depositing endorsement, has also been changed to benefit the consumer. Also under the bill, if a bank wants to waive certain responsibilities which are waivable, even under current statute, the bank is bound to advise the consumer in writing in the deposit agreement. Previously, this was somewhat left up to a speculative nature as to whether or not the bank had to waive that in the deposit agreement. Mr. Rabkin stated his belief that the level playing field will benefit the bank as well, as these things have been just as uncertain in the banking world. He stated he can find nothing in the bill which detracts from consumer rights. If anything, it creates a more certain and lengthy period for the consumer to deal with situations. He stated his belief that the bill also recognizes the fact that federal law is moving in this direction as well. He gave the example of a disclosure now required under Regulation E, to accompany Automatic Teller Machine (ATM) transactions. He stated his understanding of why California was willing to adopt this is because it is neutral, if not pro-consumer. A.B. 617 was drafted, except for particulars in Nevada law, exactly as that which was adopted in California.
Senator Adler advised that virtually every line of A.B. 617 has been thoroughly researched. He asked Mr. Daykin how many drafts of the bill were done by the uniform law commissioners, and the process by which the bill was derived.
Mr. Daykin advised that in the uniform law conference, a drafting committee is appointed to prepare something such as A.B. 617. It is then brought back to at least two annual meetings of the conference, each of which is attended by 150 to 200 lawyers. The substance of it is worked over there. The language is reworked after the first and second time it is reviewed, by the committee on style, to be certain that what was intended as substance got clearly into the language. He stated the language in this bill was reviewed at three annual meetings at different times.
Senator Adler asked what year it passed.
Mr. Daykin replied it passed in 1990. It was then before the legislature in 1991, however the legislature decided to wait to see what California would do. The measure passed in California in 1992.
Senator Adler advised that these particular drafts would have footnotes as to all applicable case law for each section. There would also appear notes as to why the language was inserted, and notes regarding committee debates. He advised he did not have as much problem with this type of act because it is a uniform act, and literally every word in the act can be traced back to a committee debate, a statute in another state, or a relevant case.
Senator James asked if there are a lot of cases regarding electronic transfers and related items.
Mr. Daykin stated there are not yet a lot. He advised the uniform law commissioners' intent was partly to see the direction they were going and the problems which would be raised, and attempt to give positive answers rather than to wait for case law in ambiguous situations.
Mr. Rabkin agreed. He advised the Federal Reserve, the primary regulator of banks, is trying to create uniformity in the banking system, and is using state law to help them do this. The Federal Reserve audits banks on things dealing with the UCC and is finding that banks are treating a lot of the customer complaint dispute areas inconsistently, even under federal regulation. Rather than pass an overlapping federal law which would be like a UCC type law, the federal government has decided to leave that with the states, but to recommend these extensive changes. When the examiners go to the banks and criticize them for their treatment of customers, they will do it uniformly. He advised this is what A.B. 617 really embodies; a back door approach by the Federal Reserve to have the states to deal with their customers evenly. Mr. Daykin stated his belief that this is almost required with banks such as First Interstate and Bank of America, who are moving operating on an interstate basis. This uniformity is needed for internal compliance.
Mr. Daykin advised the drafting committee to which he referred did work with advisors from the Federal Reserve Board in preparing the drafts which came before the uniform law conference.
Senator James confirmed there was no further testimony regarding A.B. 617. He closed the hearing on the bill and advised he would hold the bill for a vote at an upcoming work session.
Senator James confirmed there was no further business to come before the committee, and adjourned the hearing at 2:00 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
June 11, 1993
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