Carson City (Monday), March 31, 1997

Senate called to order at 10:35 a.m.
President Hammargren presiding.
Roll called.
All present.

George M. Keele, Carson City Stake President, Jesus Christ of Latter Day Saints Church.
Our Father in Heaven,
Thou hast given us as a sacred trust a precious gift in this great State of Nevada. Why is she great?
She is freedom; she is breathtaking vistas; she is history; she is the future; she is where we choose to live because she is unique. Nevada is great not because of what she does but because of what she is.
As her stewards, may we too leave our children a legacy of greatness, not because of what we do in this legislature but because of what we are: to our constituents -- fair; to the disadvantaged -- charitable; to our brothers and sisters in this chamber -- kind; and to ourselves and to Thee -- true. We humbly pray, in the Name of Jesus Christ,

Amen.

Pledge of allegiance to the Flag.

Senator Raggio moved that further reading of the Journal be dispensed with, and the President and Secretary be authorized to make the necessary corrections and additions.
Motion carried.

William J. Raggio,

Chairman

By the Committee on Finance:
Senate Bill No. 250--An Act making an appropriation for the expansion of the building that houses the National Judicial College; and providing other matters properly relating thereto.
Senator Raggio moved that the bill be referred to the Committee on Finance.
Motion carried.

"An Act relating to public bodies; requiring an area leased by or on behalf of such a body to have a toilet facility which is".

Senate Bill No. 31.
Bill read third time.
Remarks by Senators Neal, Adler and Augustine.
Roll call on Senate Bill No. 31:
Yeas -- 20.
Nays -- Neal
Senate Bill No. 31 having received a constitutional majority, Mr. President declared it passed, as amended.
Bill ordered transmitted to the Assembly.

Senate Bill No. 106.
Bill read third time.
Roll call on Senate Bill No. 106:
Yeas -- 21.
Nays -- None.
Senate Bill No. 106 having received a constitutional majority, Mr. President declared it passed, as amended.
Bill ordered transmitted to the Assembly.

Senate Bill No. 123.
Bill read third time.
Roll call on Senate Bill No. 123.
Yeas -- 18.
Nays -- Schneider, titus, wiener--3.
Senate Bill No. 123 having received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Senate Bill No. 132.
Bill read third time.
Remarks by Senators James, Neal and Adler.
Senator Neal requested that the following remarks be entered in the Journal.
Senator James:
Thank you, Mr. President. I rise to offer some comments on this bill because what we are doing here is of great significance. In the State of Nevada, we currently have 81 convicts on death row. This is something of a national disgrace. These people, all of whom have been convicted of first degree murder with aggravating circumstances found by a jury, are guilty of some of the most grisly, disgusting crimes and offenses against humanity that you could dream up. The people of the State of Nevada, through this legislature, have made a judgment. That judgment is that the ultimate penalty of death should be given to those people who commit first degree murder with aggravating circumstances found by a jury. Unfortunately, that judgment has been rendered moot and meaningless by the operation of our death penalty appellate system. Of those 81 convicted death row inmates, 46 of them have direct appeals pending. The remainder are in some stage of post conviction relief. Post conviction relief, as I explained previously when the bill was on second reading, means after you have lost at trial, lost on multiple direct appeals of the conviction through the criminal justice system, you can take a whole new bite of the apple by something called collaterally attacking the conviction. It is called a petition for writ of habeas corpus, which means you have the body and must release it unless you can show you are not violating the constitution. It is a civil action. It is instituted after everything else has been done, after all constitutional rights have been protected, flushed out and appealed numerous times. It is something whereby the law states that you have one more chance. And, our state law allows one more chance. The problem is that this one more chance has become multiple more chances because our state, without being required to by the constitution, has said that in post conviction relief "we will appoint you a lawyer if you are too indigent to pay for one yourself." We do not have to do that because the constitution only states that you have a right to be appointed a lawyer, under the Sixth Amendment, if you can not afford one in a criminal case or a first direct appeal from a criminal case. Nevada has said that "we will give you an attorney at the post conviction stage." Nothing in the constitution says that you are entitled to a lawyer and, secondarily, nothing in the constitution says that if you get a lawyer that you can later appeal and say that the lawyer was not effective based upon some constitutional standard.
Unfortunately, there have been a couple of cases in which our supreme court has determined that the way in which our statute is worded does allow the whole issue of effective assistance of counsel to be raised after a post conviction proceeding. Essentially, you can do this first post conviction proceeding where a lawyer is appointed for you, you fail there, then you have another lawyer appointed for you because you say that the first lawyer was no good, and all down the line. It is rather like looking in a mirror with a mirror behind you; it just goes on forever. That is kind of what these appeals are like.
The question has been raised as to whether or not the Judiciary Committee has analyzed what constitutional effect there might be in eliminating the right to effective assistance to counsel. As we always do, the Judiciary Committee carefully considered the constitutional issues. We asked the lawyer, who has been assigned to our committee, to do just that. We asked him to analyze the constitutional issues. He explained to us that this is not a constitutional issue, but is a statutory issue. It is a legislative issue for us to decide, if you have a lawyer, it is up to us to decide the standard by which that lawyer's conduct is to be adjudged in any appeal based upon post conviction proceedings.
So that we have it in the record, Mr. President, I would like to cite the case of "Pennsylvania against Finley." There, in the 1987 case, the Supreme Court of the United States definitively answered the question of whether you are entitled to effective assistance of counsel in post conviction relief. The answer was a resounding "no" that you are not. The state is not required to give you that counsel and therefore, since the source of the counsel is not the constitution, the lawyer does not have to live up to a constitutional standard since, the source of right is a state law, it only has to live up to whatever the state standard is. What we do here today, with this bill, is to set a state standard. It is not the one originally proposed in this bill which was no right to effective counsel at all. The Judiciary Committee analyzed this, came up with a standard in concert with the witnesses who testified, and said that "if the lawyer is so bad that your proceeding is really nothing more than a sham, farce or pretense, then you can go back at it."
What we do here today is of such great significance because we will finally be able to, if we can pass this bill, stop the appeals "ad nauseum" in civil post conviction relief after someone has already been found guilty by a jury and by numerous judges on direct appeals. Only if we do this can we start to carry out the sentences that were given in the 1970s to multiple murderers and murderers of children who reside on our death row. There are other steps to take. The Death Penalty Task Force, working in constant with the Judiciary Committee, will bring forth more bills before the legislature this session to address this most important issue. It has been too long that the will of the people of the State of Nevada has been frustrated by a process that has run amok. It is completely out of control. No longer does the death sentence have any meaning when uttered by a judge. No longer does it have any meaning to the family of the loved one who was murdered under some terrible aggravating circumstances. We need to put meaning back into that. That is our job and our purpose here today. This bill takes one step in that direction and I urge your support.

Senator Neal:
Thank you, Mr. President. First of all, let me say that the writ on habeas corpus was put into the constitution because the founders recognized that people could be put into jail when they had not committed a crime. They could be found guilty and not have committed the act they were charged with. It was a remedy to allow that person to file an appeal after the first conviction. What we have in this bill is that we want to limit that right and say to the criminal justice system, the district attorney, and to the judges that they cannot make mistakes. It says that whatever you do, as long as it takes place in a courtroom with a jury present, whatever that finding is, let it be. It says to let that person remain in jail and rot there even though there might be circumstances where that person could appeal and have his trial looked at again.
What we are attempting to do here is to so limit the right of post conviction relief that the person would not have an opportunity to say that they have reason to challenge the law and a reason to challenge the conviction. Let me state to you one of the provisions in this bill. It says, in one section, that a petition may allege that the petitioner is unable to pay the cost of the proceedings or to employ counsel. If the court is satisfied that the obligation of indigency is true, and the petition is not dismissed summarily, the court may appoint a counsel to represent the petitioner. In making the determination the court may consider, among other things, the severity of consequences facing the petitioner and whether the issues presented are difficult, the petitioner is unable to comprehend the proceedings and the counsel is necessary to proceed with discovery. Then we add, as an amendment, if the petitioner to whom counsel is appointed pursuant to this subsection is not entitled to effective counsel. Why then do we put into law that the petitioner could be unable to comprehend the proceedings? Yet, on the other hand, say that when he gets a lawyer and that lawyer is not capable of dealing with those circumstances, then that person cannot appeal the ineffectiveness of counsel. It seems to me to be ridiculous to have such a stipulation placed in the statute. This bill does not do anything for the people of the State of Nevada. What it does do for are those individuals who operate from the office of the attorney general and have found it necessary not to delve into the books in order to ascertain the law which governs these types of situations and thereby bring a presentable case before a judge. What we are doing here is to place a requirement into statute so that they can walk up to the bench and say "well, judge, look at the law." Well, the law does not answer all of the questions here. Even though we might want it to, it does not. I think we have trampled into this area many times before. What some of us would like to see is not to have any habeas corpus petition at all. What we would like to have is for someone who is found guilty and thrown in jail to rot. That seems to be the direction in which we seem to be heading in this legislature dealing with these types of issues. I would say, like anyone else, that some crimes are hideous and the people who commit them need to be put into jail, but I am not one to say that if an individual does go to jail that he should not have the right to have effective counsel if he feels the sentence of the law under which he was judged upon when he was sent to jail in the first place should not be challenged.
I don't think the people, whose names we pass these bills in, would buy this type of legislation. We enact laws in the name of the people of the State of Nevada, not in the name of the attorney general, not in the name of a district attorney, but in the name of the people of the State of Nevada. The citizens of the State of Nevada are the people for whom we enact these laws. Let us think, ladies and gentlemen, about what we are trying to do with this bill. It does not change anything if a person is allowed to say that he was convicted wrongfully. It simply gives them another opportunity. That is what the writ of habeas corpus is for. It is to assist people who are wrongfully put into jail. In fact, currently we have a situation in Clark County where people are picked up by the police, put into jail and kept there for eight or more days only because they read in our action by statutes such as this. We give them every reason to do just that when we allow passage of laws of this particular nature.
Think about what we are here for. We are not here to look towards our next election. We are here to do the people's business in a fair and just manner. This bill is not either fair or just. Because we can get 11 votes in the Senate, we think we can put anything into law. If that is what you are here for, then I think you should pack your bags and go home because you are here for the wrong purpose.
There were seven members sitting on the Judiciary Committee that looked at this bill. What were you thinking about when you want to tamper with the rights written into the constitution? Of course, the young Senator said that we don't have any constitutional rights in this regard and that the writ of habeas corpus does not apply. He pointed out some heinous crimes in order to get you riled up about this. Well, when those things happen, in the State of Nevada, the heinousness of the crime must be considered. We have never failed to do that. As long as we can draw parallels to other states as to what might happen here, we are subject to go down the wrong road in dealing with this particular issue.
I would think that even prisoners should have rights that should be looked at by this legislature. Just because they are in prison does not mean that they are beyond legislative consideration. What would be the consequence of this particular piece of legislation? I will tell you what it is going to mean. You close the door when application of a writ that might allow someone to be released from prison. Your jails and your prisons are going to start to fill up and then you are going to come back and tell the public that you need more money to build more prisons. I am asking you, ladies and gentlemen, to stop and take a look at what this piece of legislation is doing. It is sending a message that has a far greater application than applying to just a writ a poor prisoner might receive. I say to you, as legislators, leave this activity to the courts, to the prosecutors, and to the attorney general to figure out. Let's not give a tool to bar the doors to those who might find themselves convicted unjustly. This is what this bill is attempting to do. I would say to you, we are never supposed to make it easy for a person to prosecute anyone. It is supposed to be done on the basis of the facts and the law. We should not make it easy to prosecute anyone and to eliminate the writ of habeas corpus proceedings when that writ is guaranteed to an individual who finds himself in the grip of the law or in prison. The only means by which that person can be released is through that writ. Now, we are saying that the writ of habeas corpus should be so limited that it cannot be used. We want to do this because of a request from an attorney general. Well, like I said, we should never make it easy for the prosecutor to prosecute. That should always be a hard job. If you think it should not be, you should go back to the early days in the history of this country and see why people were thrown in jail. It was then that the writ of habeas corpus was developed and why it was necessary. In our modern day times we, in thinking about how the law should be applied, seem to want to do those things which would make it easier to keep people in jail who find themselves there. I reiterate, Mr. President, that this should never be easy. That writ should not be continuously tampered with. It should be looked upon as a valuable writ even though it is being used by prisoners. If anyone of you should you find yourselves behind bars, you would be willing to reach out and grab this writ of habeas corpus if you thought it would release you. Somehow, in this body, we seem to think that we might be above that, but let me tell you that you are not. We have had people who were in this body be committed to prison.
So, Mr. President, I am going to have to vote against this measure because I think that it is giving a wrong signal and headed in the wrong direction. I have seen too many times where we have tampered with this section of the law. We do it on the basis that it is prisoners who are involved. I do not subscribe to the fact that everyone who is behind bars are there because they need to be there. Some of them are there because of the circumstances which were not under their control. They may be innocent and this is what this writ is supposed to be used for. They may be there because they did not have effective counsel. This writ allows them to look anew at the trial proceedings. It is not to have another look at the bite of the apple, as some have said. I do not call it that. The writ should be there for any individual who happen to find themselves in prison and feels that they are there illegally. They should be able to take advantage of the writ and have their case looked at anew. Thank you.

Senator James:
Thank you, Mr. President. Briefly, I would like to respond to a couple of issues raised by the Senator from North Las Vegas. It is always fun to talk about politics and other conditions which were voiced. I have to get my head back into the business of the legislature, because when I am in court my opponents are required to talk about the facts. That is not always the case here. Let's go back for a moment and focus on what we are really talking about with this bill. There is a writ of habeas corpus in the Federal constitution and you are entitled, according to constitutional law, to a federal post conviction relief as a matter of right to challenge your incarceration after you have already been convicted. We are not dealing with that in this bill. What we are dealing with is Chapter 34 entitled "Writs." All of the writs are listed in that chapter. All the statutorily, legislative created writs. One of those is habeas corpus. It is one that was created by the legislature, its own habeas corpus provision. There is one part on general habeas corpus and one on death penalty habeas corpus which we are talking about here today. It deals with challenging your incarceration based upon some other grounds under state law. It is what is called discretionary post conviction review. This state is not even required to give this opportunity. We talk about all these highfalutin concepts of the constitution dating back when people were wrongfully incarcerated; we aren't dealing with any of that here. All of that is preserved. We cannot amend the federal constitution here today nor would we try to. What we are talking about are the procedures for state habeas corpus. I am not a criminal lawyer, but let me tell you what happens. As a member of the Committee on Judiciary, I have studied it although I do not know as much about it as the deputy attorney general who brought this forward and who does nothing but death penalty appeals. What happens is someone is charged with a crime. If they cannot afford counsel, an attorney is appointed as their counsel. They are then given the right to trial by jury. All of these are federal and state constitutional rights. The jury then has to find them guilty of first degree murder. Then there is a separate penalty phase, if they are being tried in a capital case with the death penalty, where they make separate findings in a whole separate trial. If there are aggravating circumstances which outweigh any mitigating circumstances, they may receive the death penalty. If you are given the death penalty, you are allowed a direct appeal of your conviction. You have a direct appeal of your conviction and you have a direct appeal of the decision of the jury which states you receive the death penalty. So, you have two appeals you can make. You can take your appeal all the way up to the United States Supreme Court if there is an issue on direct appeal. Then you can go to the federal court system and say that your federal constitutional rights have been violated to take a federal habeas action to the federal system as a writ. We are not dealing with any of those here. Then, you can come back to the state and continue with a state habeas corpus action. That is the one that goes on forever and ever and ever. The federal government, in the Congress and Death Penalty Reform Act in 1996, made some changes to Federal habeas corpus proceedings which say you must go up one time and it has to be done within a year or two so that a decision can be made to carry out the penalty or make a decision one way or the other. The State of Nevada has not done that. That is what we are attempting to do here today. We are trying to make it so that at the state level with the state law discretionary appeal that your rights are protected. You are allowed to have a counsel appointed for you. That counsel has to be basically competent. That is what we are really talking about here today. None of the other things you heard are at issue here today. Just that, just this one state action which goes on forever and needs to be stopped. That is how we are going to be able to carry out these penalties and reduce the population of death row and end this national disgrace.

Senator Neal:
Thank you, Mr. President. I do not want to prolong this issue, but let me just point out something in Section 6, first reprint of the bill. I just want to deal, for a moment with that section of this bill which deals with the death penalty. The young Senator made mention of this. In Section 6, it states that "if the petitioner has been sentenced to death and the petition is the first one challenging the validity of the petitioners conviction and sentencing, the court shall appoint counsel to represent the petitioner and (b) stay execution of judgment pending disposition of the petition of appeal." Following that, the amendment which I find objectionable, "the petitioner whom counsel is appointed pursuant to this subsection is not entitled to effective assistance of counsel."
Now, here is a situation which we have placed into statute. We have put into statute that the incompetence of counsel and post conviction proceedings are not grounds for release. We have been so presumptuous, in our activity, even to include federal action which should not be. In turn, even if this person or the judge appoints a counsel and that counsel is fresh out of law school, and he doesn't know anything about murder trials, and he does not do a good job, we are saying that the petitioner cannot challenge that. I would understand if the petitioner had the opportunity to select the counsel or at least participate in his selection. But, here, the appointment is made by the bench. If the bench should so decide to pick one of his neighbors kids, who is just out of law school to handle this case, then I think that the petitioner should have a right to appeal on the ineffectiveness of counsel. I cannot understand where we want to go with this law. What are we looking at? Do we just want to put people in jail and keep them there? If that be the case, why do we not just say so instead of stating it in terms where the person cannot receive relief. I think this is bad policy and bad law.

Senator Adler:
Thank you, Mr. President. I was not going to rise to speak on this measure, but I think we should make it clear what we are doing here. As the chairman of the committee said, we are talking about a defendant who has had appointed counsel at trial, a defendant who has had appointed counsel on appeal, someone who has had appointed counsel at a habeas corpus proceeding and sometimes both on the state and federal level. Then we are talking about a fourth or fifth collateral attack on whether the defendant's counsel was competent, not at trial, not on appeal, but at the habeas corpus proceedings. The standard is whether the representative was a sham. I think that is a fair standard given the fact that we are on the fifth level. To give you an example, I had one case I worked on just out of law school where a defendant called Jimmy Neuscheaffer killed another prisoner within the prison system. I remember talking to Johnny Johnson's mother, in 1981, and told her not to worry, that since her son had been killed the state would take care of this killer and this killer would not kill again. He had previously killed two little girls in Carson City before he killed the inmate in prison. Well, Mr. Neuscheaffer is still alive and well today. So far, we have had two people die of natural causes on death row, which I think exceeds the number who have been involuntarily executed. Mr. Neuscheffer is in his 16^th year of ongoing appeals and habeas corpus petitions, and his appeals have been exhausted. At some point, the system does have to come to an end. I agree with the Senator from North Las Vegas on a number of points. We need to make sure these defendants have competent counsel at trial, the best the state can appoint. The same is true of appeals and I think defendants are entitled to competent counsel in a habeas corpus hearing, but when one gets to a collateral attack on a habeas corpus petition and the competency of counsel. I think this bill does set out a fair standard. This bill was not suggested by the attorney general. That office did not necessarily want these provisions, but did finally agree to it as a compromise. I do not think this amended bill is out of line.

Senators Raggio, Jacobsen and O'Connell moved the previous question.
Motion carried.
The question being on the passage of Senate Bill No. 132.
Roll Call on Senate Bill No. 132:
Yeas -- 19.
Nays -- Coffin, Neal--2.
Senate Bill No. 132 having been received a constitutional majority, Mr. President declared it passed, as amended.
Bill ordered transmitted to the Assembly.

Senate Bill No. 146.
Bill read third time.
Remarks by Senators Raggio, Mathews, McGinness, and Neal.
Senator Mathews requested that her remarks be entered in the Journal.
The distribution back to local governments of the supplemental city/county Relief tax (SCCRT) portion of the statewide sales tax is calculated by formula that is driven primarily by the ad valorem value of the local government. When property is transferred from taxable to non-taxable status, its value is deducted from the local government's ad valorem value for the purposes of the distribution of SCCRT.
Senate Bill No. 146 would allow the value of property transferred from private ownership after July 1, 1997 to property held in trust for an Indian tribe to continue to be used for the purposes of the SCCRT distribution. This bill is similar to the bill that was passed for Carson City to allow for the value of private property purchased by the state to remain on the rolls for the purposes of the distribution formula. The bill has received total support from tribal and local government representatives.
Roll Call on Senate Bill No. 146:
Yeas -- 21.
Nays -- None.
Senate Bill No. 146 having been received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Senate Bill No. 151.
Bill read third time.
Remarks by Senators Neal and Washington.
Roll Call on Senate Bill No. 151:
Yeas -- 21.
Nays -- None.
Senate Bill No. 151 having been received a constitutional majority, Mr. President declared it passed, as amended.
Bill ordered transmitted to the Assembly.

Senate Bill No. 189.
Bill read third time.
Roll Call on Senate Bill No. 189:
Yeas -- 21.
Nays -- None.
Senate Bill No. 189 having been received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Senate Joint Resolution No. 6.
Resolution read third time.
Remarks by Senator Rhoads.
Roll Call on Senate Joint Resolution No. 6:
Yeas -- 21.
Nays -- None.
Senate Joint Resolution No. 6 having been received a constitutional majority, Mr. President declared it passed, as amended.
Resolution ordered transmitted to the Assembly.

Senate Joint Resolution No. 8.
Resolution read third time.
Remarks by Senators Neal, Rhoads and Coffin.
Roll Call on Senate Joint Resolution No. 8:
Yeas -- 21.
Nays -- None.
Senate Joint Resolution No. 8 having been received a constitutional majority, Mr. President declared it passed, as amended.
Resolution ordered transmitted to the Assembly.

Assembly Bill No. 15.
Bill read third time.
Remarks by Senators Townsend, O'Donnell, Titus and Rawson.
Roll Call on Assembly Bill No. 15:
Yeas -- 16.
Nays -- Adler, Augustine , Schneider ,Titus--4.
Not Voting -- Townsend.
Assembly Bill No. 15 having been received a constitutional majority, Mr. President declared it passed, as amended.
Resolution ordered transmitted to the Assembly.

Assembly Bill No. 22.
Bill read third time.
Roll Call on Assembly Bill No. 22:
Yeas -- 20.
Nays -- Neal.
Assembly Bill No. 22 having been received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

On request of Senator Titus, the privilege of the floor of the Senate Chamber for this day was extended to Dr. George Mueller and Tim Carlson.

Senator Adler requested that his remarks be entered in the Journal.
I request that we adjourn today in memory of Alice Allegra Dove List, mother of former Governor Robert List, and Alison Shaw, Galena High School student.

Senator Jacobsen requested that his remarks be entered in the Journal.
I request that we adjourn today in memory of Lavelle Johnson, former supervisor of the Assembly Bill Book room.

Senator Raggio moved that the Senate adjourn until Wednesday, April 2, 1997 at 10:30 a.m. and that it do so as requested by Senators Adler and Jacobsen.
Motion carried unanimously.

Senate adjourned at 12:08 p.m.

Approved:

Lonnie L. Hammargren, M.D.

President of the Senate

Attest: Janice L. Thomas
Secretary of the Senate