MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 30, 2001
The Committee on Judiciarywas called to order at 9:06 a.m. on Monday, April 30, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada and by videoconference to Room 4401 of the Grant Sawyer Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Mrs. Sharron Angle
Mr. Greg Brower
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
Ms. Genie Ohrenschall
COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley (Excused)
Mr. Tom Collins (Excused)
GUEST LEGISLATORS PRESENT:
Senator Joseph Neal, Jr., Clark County Senatorial District 4
Senator Mark James, Clark County Senatorial District 8
Speaker Richard Perkins, Assembly District 23
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Cindy Clampitt, Committee Secretary
OTHERS PRESENT:
Ms. Gemma Greene Waldron, representing the Nevada District Attorney’s Association
Mr. Ben Graham, Nevada District Attorney’s Association
Mr. John Morrow, Washoe County Public Defender
Father Robert Stoeckig, Chancellor, Catholic Diocese of Las Vegas
Ms. Laura FitzSimmons, lawyer
Reverend Phillip Hausknecht, representing the Lutheran Advocacy Ministry in Nevada
Father George Wolf, Catholic Priest, Reno Diocese and currently serving as Vicar General
Ms. JoNell Thomas, representing the Nevada Attorneys for Criminal Justice
Mr. Michael Pescetta, lawyer in the death penalty field, representing himself
Mr. Elmer Rusco, former teacher
Mr. Richard Siegel, representing the American Civil Liberties Union of Nevada
Mr. Larry Struve, representing the Religious Alliance in Nevada (RAIN) and the Lutheran Advocacy Ministry in Nevada
Mr. David Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, Nevada Attorney General’s Office
Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department and the Nevada Sheriffs’ and Chiefs’ Association
Chairman Anderson made opening remarks and stated a quorum was present. The Chair opened the hearing on S.B. 179.
Senate Bill 179: Revises provisions governing admissibility in criminal proceeding of certain statements made by child. (BDR 4-472)
Ms. Gemma Greene Waldron, representing the Nevada District Attorney’s Association, testified in support of the bill.
Mr. Ben Graham, Nevada District Attorney’s Association, stated the issues were presented in an earlier bill. He suggested S.B. 179 was one small piece of a big picture. When a situation existed where there was no question about the physical abuse of a younger person, the young people were sometimes unable to articulate detailed information. Frequently in abuse situations however, they were able to articulate what happened and perhaps point a finger at a perpetrator. In a typical case, other evidence existed, but the bill was requesting to extend the law of admissibility from that of sexual conduct to include physical abuse as well.
Mr. Graham stated Section 1, subsection 2 of S. B. 179, had not been included in the Assembly version of the bill. He explained that subsection added language addressing specific tests for the trustworthiness of a child to give testimony. It provided the court with safeguards of review before admissions could be made available to the fact finder.
Ms. Waldron stated the bill was brought in response to situations where a child might not be able, or was afraid, to say anything to a police officer or doctor at the time an injury occurred. The same child might say something later to someone about what had happened to him or her. It was felt the bill would create a good tool to help prosecute child abuse cases, especially those involving substantial bodily harm, a felony.
Chairman Anderson explained the Assembly Bill being referenced was A.B. 396 sponsored by Assemblyman Brown. He asked why the committee should be concerned about why the statement was spontaneous and what constituted a motive for fabrication. He opined a portion of the issue had been dealt with in another bill. Ms. Waldron stated Section 1, subsection 2, of the current bill gave a guideline to the courts, but the specifications were not limiting language.
Chairman Anderson asked why the repetitive question language was added. Ms. Waldron replied a child victim was more susceptible to suggestion than an adult would be and every time questions were asked, depending on how the question was asked, it might implant a memory that was not necessarily true. As a practical matter, prosecutors were very concerned about how many times a child was interviewed. Police officers were very aware of the need to not question a child overmuch.
Chairman Anderson asked if the provisions set up a problematic situation where a child might be interviewed several times by the police, district attorney, the prosecution, and after so many times the testimony would become unusable. Ms. Waldron replied that was a remote possibility, depending on whether or not over time, the child’s testimony had remained the same. If the testimony steadily became more embellished the prosecution would have a problem.
Chairman Anderson noted memory tended to fade over time, especially those memories of a traumatic event in one’s life. He stated the committee needed to be very careful not to create a situation that provided the opportunity for a perpetrator to find a way out of prosecution. Mr. Graham replied S.B. 179 was only one small piece of the puzzle. Typically early in the investigation, a child might make a very brief, cogent statement. At the time of the trial, the child might not recall having made the statement, but the court would have the ability to review the statement and the circumstances under which it was made. The guidelines would aid in that process.
Assemblyman Carpenter asked if the defense as well as the prosecution could use the provisions of the bill. Ms. Waldron replied the defense already used the concerns listed in the bill to attack the testimony of a child. She added if a child was testifying, the defense inquiry would be: (1) How many times was the child interviewed, (2) Was the child using terminology unexpected of a child that age, and (3) Did the child have a motive to fabricate testimony. Placing the language in statute would not raise the bar for the prosecution from what was already being practiced.
Mr. Carpenter stated the bill seemed to raise a number of questions including whether it would make such a case more difficult to prosecute. He asked the representatives of the District Attorney’s Association whether they would prefer to have the language in the bill or not. Mr. Graham replied the whole basis of hearsay exception dealt with inherent trustworthiness. Prior to the admissibility of any hearsay statement, the court had to substantiate the testimony through a series of tests that included:
Mr. Graham stated Section 1, subsection 2, would not be harmful to the legislation.
Assemblywoman McClain questioned the statement on page 2 of S.B. 179 that declared the child must be in a stable mental state. She asked if a child was truly molested or abused, how they could be considered to be in a stable mental state. She also asked what guidelines would be used to determine the state of mind of the child. Ms. Waldron replied Nevada Revised Statutes (NRS) contained a provision that if the defense wanted to psychologically evaluate a child making such an allegation, that could be done with the permission of the court. The state would have input as to who would evaluate the child. She stated child abuse cases, especially those of a sexual nature, brought those types of concerns. She opined Section 1, subsection 2(b), reflected that reality. Currently, if there was any question on the issue, the court could order a psychological examination of the child and the bill would not make that a requirement, only an option.
Mr. John Morrow, Washoe County Public Defender, spoke off mike stating he was not in opposition to the bill.
Chairman Anderson noted there were similarities between S.B. 179 and A.B. 396, which the Public Defenders’ Office had raised some questions about.
The Chair closed the hearing on S.B. 179 and surrendered the Chair to Vice Chairman Manendo.
Vice Chair Manendo opened the hearing on S.B. 254.
Senate Bill 254: Establishes moratorium on execution of sentences of death of certain persons until July 1, 2003, and provides for study of issues regarding death penalty. (BDR S-871)
Senator Joseph Neal, Jr., Clark County Senatorial District 4, requested the Vice Chair move testimony to Las Vegas immediately after Mr. Anderson’s testimony to hear from Chancellor Bob Stoeckig, of the Catholic Diocese in Las Vegas. Senator Neal stated the bill started as a bill to abolish the death penalty. He explained he introduced the bill because in his judgment, the death penalty was fraught with error and could not be counted on as a means to control crime.
One of the most crucial issues regarding a death sentence was that it had become an issue of vengeance supported by impact statements from victims at the last moment in court that influenced the judges’ rulings. The death penalty was one of finality and if the person was subsequently found innocent, he could not be brought back from the dead.
When S.B. 254 was introduced it was felt the bill should place a two-year moratorium on the death penalty rather than abolish it. That would allow the legislature an opportunity to study the penalty. Senator Neal stated the death penalty seemed to fall more frequently on the underclass citizens in terms of poverty and racial minorities. The majority administered a penalty involving primarily those without means or power.
Senator Neal stated Nevada allowed the enforcement of the death penalty for 16-year-olds, who could not go to a bar to buy a drink, could not get a driver’s license in many places, nor sign a contract. He opined that placed Nevada in a category with the countries of Iran and Iraq and many of those that practiced the code of “an eye for an eye and a tooth for a tooth.”
Senator Neal stated S.B. 254 provided a two-year moratorium to study the effects and need for enforcement of the death penalty. He noted there were those who would argue that a moratorium was not necessary. He stated it would be wrong to allow any sentence of death to be fulfilled while the issue of allowing a death penalty sentence was studied.
Senator Neal stated some would argue that someone such as Timothy McVeigh deserved the death penalty. He stated that was an entirely different situation because Mr. McVeigh portrayed himself as a soldier, and as a solider he knew the consequences of his actions. The Nuremberg Trials spoke very frankly to the duties of a soldier.
Senator Neal stated in his 30 years with the Nevada Legislature various laws had been reviewed and reevaluated, but the death penalty had not been reevaluated since 1979. The death penalty was placed on hold in approximately 1972 and after that time it was determined death by lethal injection was more humane than death in a gas chamber. He noted records indicated death by lethal injection had experienced difficulties as well, such as in finding veins in inmates.
He concluded his comments stating he supported a moratorium on the death penalty.
Assemblyman Bernie Anderson, Assembly District 31, spoke as one of the joint sponsors of S.B. 254. He provided his written testimony as Exhibit C.
Mr. Anderson stated the death penalty did not work. Beyond the moral arguments, it had become apparent that the current system had become antiquated and failed citizens of the state.
There were currently 87 people on death row in Nevada who had been convicted of first-degree murder with aggravating circumstances. Mr. Anderson stated those 87 people did not justify the existence of a system that cost millions of dollars, was fraught with error, and was applied unfairly across racial and economic lines.
Mr. Anderson agreed that people who had committed first-degree murder with aggravating circumstances did represent a danger to society and should spend the remainder of their lives behind bars. He suggested life without the possibility of parole was a greater punishment, in terms of loss of freedom for the rest of one’s life, than many people could imagine.
Mr. Anderson reviewed some of the costs of enforcement of the death penalty. The trials, appeals, incarceration, and execution of death penalty cases was estimated to cost between $2.5 million to $5 million per inmate. That compared to less than $1 million for each person sentenced to life without the possibility of parole.
The Nevada Department of Prisons (NDOP), had indicated the annual operating cost per inmate at the Ely State Prison for FY2000 was $18,929. Multiplied times 40 years, a rough estimate of the cost to incarcerate a person for life was $760,000. That figure represented a fraction of the resources spent for attorneys’ fees and litigation in the court system to send a person to execution.
The process from first trial to the execution chamber involved several levels of state and federal appeals, along with pardons, and other considerations, all representing time and money.
Mr. Anderson stated a recent Columbia University study indicated that the judicial system made serious and reversible errors in about 70 percent of capital crime cases. The staggering error rate resulted in numerous retrials and further costs. He opined that was a gross miscarriage of justice and a significant waste of taxpayer dollars.
The state of Illinois had discovered so many errors in its trial system resulting in ultimately exonerating 13 inmates, that the Governor declared a moratorium on all death penalty cases. Mr. Anderson suggested Nevada could do no less.
In July 2000, the president of the American Bar Association called for a suspension of executions, citing error rates and racial bias among the factors to consider.
Mr. Anderson noted recent advancements in deoxyribonucleic acid testing (DNA) technology had led to the exoneration of at least nine death row inmates across the nation. Additionally numerous studies had indicated that the death penalty was not a deterrent to violent crime. Statistics indicated murder rates in states with the death penalty were not lower, and might actually be higher.
Further research had shown the death penalty unjustly singled out lower income persons and minorities and the death penalty was not enforced equally across the board. Mr. Anderson noted approximately one-half of the inmates on death row in Nevada were of a racial minority. Over one-third were African American.
Mr. Anderson cited a report by the U.S. Department of Justice that 80 percent of the cases submitted by federal prosecutors for death penalty review had involved racial minorities as defendants. In more than half of those cases, the defendant was African American.
Mr. Anderson noted public support for the death penalty was declining and that research indicated 64 percent of all Americans currently supported a moratorium on capital punishment. A February 2000 Gallup Poll showed that 65 percent of Americans polled believed that a poor person was more likely to receive the death penalty.
Mr. Anderson concluded his comments by stating that it was time for the legislature to take a step forward – “to react to not only public opinion and the concerns of our citizens, but to the fact that the death penalty does not work.”
Mr. Anderson provided committee members with a binder of information titled, “Capital Punishment” (Exhibit D), prepared by the Research Division. He noted it outlined statistical information, provided an overview of the death penalty, and spoke to “A Broken System,” which reflected how Nevada ranked in an error rate study.
Assemblyman Gustavson questioned the comments that the death penalty was not a deterrent. He stated there had been many studies over the years, both for and against the death penalty. He stated he was in favor of the death penalty and stated if a person was put to death, they would not be killing anyone else. He commented, in the past year three convicted murderers had escaped and committed other murders. Senator Neal replied it was a deterrent to those who had already killed, but not a deterrent to those who might commit murder. Mr. Anderson referred committee members to Exhibit D, tab F. He noted the act of committing a murder did not seem to be weighed against being caught or what might happen as a result of those actions by the perpetrator.
Assemblyman Brower stated it seemed to be virtually impossible to prove with any certainty whether the death penalty acted as a deterrent or not. It also seemed that if it was assumed to not be a deterrent, and the state imposed a death penalty, the worst thing that happened was that a person who had been found guilty by a jury beyond a reasonable doubt to have committed a murder and had, in the view of the jury, committed the murder with aggravated circumstances was put to death. He stated he could not see the downside to that unless a person was fundamentally opposed to the death penalty. He asked, focusing on Nevada, where had the system gone wrong with respect to executions that had been concluded since 1976. He asked if there had been proven errors in terms of guilt or innocence. He asked if there had been a racial disparity in terms of those eight executions.
Senator Neal responded the issue of the death penalty was first reviewed more than 30 years previous and it was one of class. He stated at that time, there were very few, if any, minorities on death row. Currently, over 51 percent of the death row residents were minorities and 40 percent of those were African Americans. It was more likely that people of color in Nevada would receive the death penalty. He added, the total African American population in Nevada was 8 percent while the percentage of those on death row was over 40 percent. He opined the question should be, was the jury made up of the person’s peers, was it a jury that understood what they were doing, or was it based on race in which the individual had a lesser right to life than the person rendering the sentence.
Senator Neal said there were other laws that would be impacted by what happened with death penalty laws. He suggested the allowance of impact statements just prior to sentencing brought vengeance into the judicial system.
Mr. Anderson referred Mr. Brower to Exhibit D, tab H, which listed statistical reversal information. He opined there was no one in the state who was not in favor of making the judicial system as tight as possible. He commented that of 96 death row cases reviewed, 29 were reversed based on issues of inadequate counsel or other procedural questions.
Mr. Anderson noted Nevada ranked second highest out of the 28 states that had death penalty laws for number of inmates with death sentences per 1,000 in prison population. However, Nevada ranked 24th out of the 28 states of those who actually carried out the death penalty.
Mr. Brower asked what effect a two-year moratorium would have on death row inmates in Nevada. If one excluded those who did not wish to pursue further appeals and had consented to the death penalty, how many sentences would be stayed as a result of the moratorium. Senator Neal stated no executions were scheduled within the next 18 to 24 months. He noted he had opposed Senator Amodei’s amendment to allow anyone on death row who chose not to fight their sentence to be executed.
Mr. Anderson stated Exhibit D, tab B, contained a list of the 88 individuals on death row and included their time of conviction, but unless someone did something to expedite the appeals and hearings processes, the next scheduled execution would be due at approximately the time the next legislative session convened. Mr. Brower rebutted if a moratorium was not legislatively imposed, no involuntary executions would occur in Nevada within the next two years. Senator Neal replied appeals or hearings in some cases might be expedited.
Assemblyman Nolan explained he was very concerned that the Nevada death penalty laws might discriminate against individuals based upon their income levels or their race. He noted Exhibit D did not appear to contain information on how many murder cases that were tried and convicted were broken out by the offender’s race or socio-economic income levels. He suggested that might be the fairest comparison. He asked if the information was contained in Exhibit D. Mr. Anderson replied such a comparison should be one point in the study. He stated the information would be provided, and introduced the Chairman of the Senate Committee on Judiciary, Senator Mark James.
Senator Mark James, Clark County Senatorial District 8, stated although he was not a sponsor on S.B. 254, the Senate Judiciary Committee had amended the bill substantially and he rose in support of the bill as amended.
Senator James commented the Senate hearing on the bill had been one of its longest of the session and it had become painfully obvious and shocking to him that there was a broken system within Nevada. People sat on death row for a number of years and death sentences were never carried out until someone asked to die. Litigation was ongoing with all those inmates creating a higher cost than in a case of a lifetime of incarceration.
On the other hand, the people who were sentenced to death row were always from socio-economic disadvantaged classes. The majority of them were also from racial minorities. No one who ever had a fully-funded, private defense of their case had gone to death row in Nevada.
The recent case of Rick Tabish and Sandy Murphy had not even gone to the jury as a capital case. He suggested it could be because it had a fully-funded, private defense. Over six people had been removed from death row for various reasons.
With all those warning signs, it had seemed appropriate to the Senate to conduct a study of death penalty issues. Because of perceived problems in the system, it would be improper and incongruous to proceed with an execution while the study was being conducted.
Senator James stated S.B. 254 was passed from the Senate Committee on Judiciary with the stipulation of conducting a study and a moratorium on executions in the interim. He noted an amendment had been added on the Floor of the Senate to which he had objected. The amendment allowed a sentence to go forward if a death row inmate desired it. He stated the death penalty was the most severe exercise of state action available. He quoted Senator Neal’s testimony on the Senate side when he stated, “If you are suspicious of government, if you are concerned about government action, you should be very concerned about the death penalty because it is the most final, the most intrusive government action there is.”
Senator James testified the justification for the death penalty, if one existed, stemmed from a decision the government made that they were going to kill a citizen because the citizen had acted in transgression of the law. The death penalty justification did not stem from the desires of the person receiving the penalty.
Senator James asked how proper it would be if an inmate stated they wanted to receive the death penalty, were given their last meal, and taken to the death chamber and laid on the table where they would receive a lethal injection, but then they changed their mind. He asked if that inmate should be taken back to their cell and the witnesses sent home. He suggested that would be a mockery of the system. He requested the bill to be passed from the Assembly Committee on Judiciary with an amendment to remove the amendment that had been placed in the Senate. He pledged to work with the sponsors to attempt to have the Senate concur in such an Assembly amendment.
Senator James concluded that in 1995 the state had done a thorough review of the sentencing structure in Nevada and made needed reforms, but that had never been done for the death penalty. He stressed it was time such a study was conducted. The 2003 Nevada Legislature would have to make a decision based on the conclusions of the study.
Mr. Anderson submitted e-mail testimony from the Reverend Doctor Jane Foraker-Thompson (Exhibit E). He explained Dr. Foraker-Thompson was a criminologist and an Episcopalian Priest. He added that her comments dealt with the issue of vengeance and that not all families of murder victims were looking for vengeance or seeking capital punishment.
Mr. Anderson related a conversation with a gentleman who had served as chairman on two juries that debated the death penalty sentence and he vehemently supported elimination of capital punishment.
Father Robert Stoeckig, Chancellor, Catholic Diocese of Las Vegas, testified from Las Vegas that his diocese encompassed the counties of Clark, Lincoln, White Pine, Esmeralda, and Nye. He explained that for over 25 years the Roman Catholic bishops in the United States had voiced their opposition and called for an end to the death penalty throughout the country. In 1999, Pope John Paul II brought his support of that message to the United States as well.
Father Stoeckig stated the Catholic teaching was based on the fundamental principle that all life was sacred and that if bloodless means were available, those means should be used in lieu of capital punishment. He added Catholics joined with others in prayerful vigils against executions. He stood in opposition to state laws that would permit capital punishment. He opined the test of every public policy was whether it enhanced or threatened human life and dignity.
Consequences went beyond the potential execution of someone convicted of a capital crime. He stated the bill allowing for a moratorium would provide for public scrutiny of public policy and would increase awareness about the death penalty.
He acknowledged the crushing pain that accompanied violence, and stated the faith community stood in a special place to help people who had been victims of such crime. The respect for all human life and the opposition to violence in society were at the root of the Catholic Church’s long-standing position against the death penalty.
Father Stoeckig stated the death penalty perpetuated a cycle of violence and promoted a sense of vengeance and thus society could not teach that killing was wrong by killing. He commented the church was opposed to the death penalty because of what it did to society.
Father Stoeckig stated executing criminals could not overcome crime, nor could life be restored to the innocent by taking the lives of those convicted for their murders. He concluded the Catholic Diocese of Las Vegas was happy to support S.B. 254.
Ms. Laura FitzSimmons, lawyer, testified from Las Vegas in favor of the bill. She noted that emotionally, she understood strongly the need for the death penalty because she had lost three friends to brutal murders at the hands of strangers. Her personal experience led her to believe the death penalty could be justified, but her professional experience had led her to be absolutely convinced that the death penalty in Nevada had not been imposed fairly.
Ms. FitzSimmons stated she had represented six men in the last ten years who had been sentenced to die. She had become involved in each case long after each man had been sent to death row. Three of those men were set free through a fight with state courts for funding of investigators, witnesses, and evidence, which ultimately proved the men were probably innocent.
Demographically, of her six cases, half were white, one was Hispanic, and two were African American, but unanimously, they were all poor and powerless men. Ms. FitzSimmons stated her research revealed every inmate on death row was poor and had had a publicly funded defense or public defenders. In each case she was aware of, the inmates were represented by people who were inexperienced or overwhelmed by their caseloads. They were up against result-oriented prosecutors and police officers who overpowered the defense.
Ms. FitzSimmons asked how someone could be charged, tried, convicted, sentenced to death, and lose on appeal, only to have it be revealed that a horrible mistake had been made. Whether someone lived or died was far too important to be left to “the luck of the draw.”
Reverend Phillip Hausknecht, representing the Lutheran Advocacy Ministry in Nevada, testified from Las Vegas. He noted his membership in several religious organizations. He stood in support of S.B. 254 and the amendment for a two-year moratorium. He opposed the use of the death penalty during the moratorium in any fashion.
Reverend Hausknecht stated it was unknown how many innocent people faced a death penalty. He disagreed that the death penalty brought closure, that the penalty was fairly imposed without racial, cultural, or economic discrimination, that vengeance was not a main reason for imposition of the death penalty, nor that the violence of the death penalty prevented further violence. He suggested the semi-public viewing of the forthcoming Timothy McVeigh execution might initiate more violence. One company was going to request their employees to remain at home on the projected day of the execution.
A moratorium was needed to learn how to better prevent violence in Nevada’s society. It was needed because there was not time to learn all the issues surrounding the death penalty during the Seventy-First Legislature.
The question of closure needed to be understood. Reverend Hausknecht stated the death penalty added more pain and burdens rather than providing healing. He stated for Christians, forgiveness of the perpetrator, the secondary victims, and for everyone was the key to closure. A moratorium was needed to pool all resources to learn and grow. It took time to implement new or better procedures.
Reverend Hausknecht stated the Lutheran Advocacy Ministry would be willing to participate and assist in the study and in encouraging other ministries to participate as well.
Father George Wolf, Catholic Priest, Reno Diocese for approximately 38 years, was currently serving as Vicar General also. He addressed his remarks to the rights of victims. He stated those in opposition to the bill would say the bill would be a great injustice to victims and their rights and that victims had a right to see the death of the person who caused death to their loved ones.
Father Wolf stated such people did not know much about the matter of recovery from sudden and violent death such as murder. He added his position brought him to a place where he brought comfort to those who died, but even more so as a priest, pastor, and minister he dealt with the survivors. He opined the only way survivors could recover from sudden death of loved ones was over time, with the help of family and friends, and if they had a faith background, through that faith. He commented Christians believed in a God who lost a son to capital punishment.
He quoted U S A Today of the current date that referred to a plane crash in Peru and stated the survivors of that crash were not seeking vengeance. He opined a person trying to get over such a hurt, needed to put the hurt behind them and walk on with life. He stressed revenge would eat a person up. Closure at the death of the perpetrator would only dredge up the whole ordeal again. He offered to participate in the study proposed by the bill.
Father Wolf concluded with a quote from the Catholic Bishops of Georgia, North Carolina, and South Carolina in September 1992.
It would seem more fitting for Christians to isolate those who were unreformable, under humane and dignified conditions, and leave the determination of life and death in the hands of God, who gives life in the first place.
Mr. Nolan stated he was interested in Father Wolf’s statement about victims. He commented sometimes perpetrators of often heinous crimes, when given the opportunity to live in prison without the possibility of parole, could continue through appeal processes, and possibly develop an opportunity to receive a parole hearing. Then everything was dredged up once again. Father Wolf stated if a person was convicted of first-degree murder with aggravating circumstances, they should not be given the opportunity to sit for parole. He stated they should be put away and left segregated from society to create closure.
Mr. Nolan stated if that was possible it might be acceptable. However, the inmate still had access to a law library and potentially, attorneys found and looked for ways to bring even a “final” case to appeal. Meanwhile, the family of a victim could not find closure because for 10 or 20 years, as the inmate worked through the appeal process, he continued to write letters to the families asking for forgiveness and support at parole hearings.
Ms. JoNell Thomas, representing the Nevada Attorneys for Criminal Justice, offered testimony from several different perspectives. She explained she was an attorney who represented a man who was released from death row after 20 years. She added she was a private practitioner who was handling far too many post-conviction cases. She offered testimony as president of a criminal defense organization with an opportunity to make observations about capital cases and to discuss such matters with many other attorneys.
Ms. Thomas opined that from all those perspectives, the system was not working. She stated it was not an answer to say the system worked in her client’s case, because his conviction was reversed after 20 years. He was 31 years old when convicted and came out of prison in his 50s and was still facing a new trial with no one who had a real memory of the events surrounding the case available to testify as at least seven of the previous witnesses were now deceased.
Ms. Thomas added it was not an answer that two juries looked at the Jack Mazzan case and the case proceeded through the appellate court on at least four different occasions before, on a fluke, records were revealed that should have been turned over in earlier hearings. Ultimately, the Nevada Supreme Court unanimously reversed his conviction.
Ms. Thomas stated it was her fear that under the current rules of the state, no defendant should have to wait 16 years to hope records would be turned over. She commented she litigated a number of capital punishment cases and there were fundamental issues that needed review.
Nevada had the highest per capita rate of the death penalty per 100,000 population in the country. The Nevada Supreme Court amended its rules governing death penalty cases a few years ago to require statistics be kept on minorities on death row. However, the prosecutors in the state asked the Nevada Supreme Court to amend the rule and not make it a requirement, to which the court had agreed. Ms. Thomas requested the legislature insist that such information be kept.
Ms. Thomas stated the purpose of “aggravating circumstances” was to narrow the field of first-degree murderers who were eligible for the death penalty and Nevada’s laws did not do that. She explained the laws were so broad in their allowance of “aggravating circumstances” that no first-degree cases would be exempted.
Ms. Thomas opined the Nevada Supreme Court was overworked and could not take the time to personally review all records of a case. She added there was no intermediate appellate court.
Mr. Michael Pescetta, lawyer in the death penalty field representing himself, testified from Las Vegas stating that over the past nine years as the Death Penalty Resource Center Director and as an Assistant Federal Public Defender, he had attempted to track all capital cases proceeding through Nevada and federal systems.
Mr. Pescetta opined there were at least two capital punishment cases that would potentially reach culmination during the period of the proposed moratorium. He added in his opinion, both of those cases had serious constitutional problems.
The other primary player in the system, the court system, was very ill-suited to do a thorough review in the course of the corrective process in individual cases. Mr. Pescetta used as an example that the statistics concerning race of death row inmates had been known for at least nine years and yet had never been the subject of an Opinion of the Nevada Supreme Court although, under NRS 177.0552, the court was required to review death penalty sentences to determine if they were affected by prejudices.
Mr. Pescetta cited a case where a white juror referred to a black defendant in the course of deliberations as a gorilla and a tribesman. Over a very vigorous dissent, the Nevada Supreme Court affirmed the case without any reference to other evidence showing racial disparity existed.
In another case, a white, female prosecutor told an all-white jury in front of a white judge and two white defense lawyers and another white prosecutor that the black defendant was an animal, had a special death penalty quality, and “was not part of our human race.” The Nevada Supreme Court affirmed that case because the white defense lawyer who briefed the appeal had not explained how those comments might have been prejudicial.
Mr. Pescetta continued, the state habeas corpus system in which the majority of Nevada cases currently resided, allowed the defendant to go outside the trial record on appeal and determine if new evidence had been revealed. He stated 10 percent to 20 percent of those cases pending were in the hands of lawyers who had never filed a request for investigative funds, requests for experts, or for motions of discovery to determine if there was evidence outside the trial record.
Another court case was currently pending in the Eighth Judicial Court in which DNA evidence had demonstrated that the prosecution’s theory at trial was false. That information would not have been discovered if it had been in the hands of one of the counsel who was responsible for 10 percent to 20 percent of the post-conviction cases in the state. A large California law firm that was working on the case pro bono discovered the evidence.
To Mr. Pescetta’s knowledge there were only two Nevada capital cases that had even a partially-funded defense. Economic and racial disparities had always been present in the system.
Mr. Brower stated he had numerous questions, but offered to hold them to allow more time to those testifying in opposition.
Mr. Elmer Rusco, former teacher, testified there was a great deal of reading material available for research. He noted, practically speaking, it was unknown whether Nevada had ever executed an innocent person.
Mr. Rusco quoted from United States Supreme Court Justice, Sandra Day O’Connor, in 1993, “The execution of a legally and factually innocent person would be a constitutionally intolerable event.” The proposed study of S.B. 254 was needed to ensure such a thing would not happen.
Mr. Rusco listed two written resources. One was a nationwide study of the death penalty from 1900 to 1991 by Hugo BeDeau, which had found 416 cases in which, by ignoring technicalities, innocent people were convicted in capital cases. The evidence was derived from official actions of judges or through pardons information. The study opined that 23 innocent people had been executed in the country. He commented there was no post-execution procedure to determine whether an innocent person had been executed.
The other resource was a book written by Barry Scheck and Peter Newfield describing the experience of the Innocence Project at the Cordozo School of Law in New York City. That research had revealed 80 cases overall in which people convicted of murder had been found innocent through DNA testing. Mr. Rusco commented only the states of New York and Illinois required DNA testing at post-conviction whenever it was deemed appropriate.
Mr. Rusco concluded he supported abolition of capital punishment and stressed one reason for the proposed study was there was no answer to the question of innocence and execution.
Vice Chair Manendo submitted a six-page letter from Ms. Mercedes Maharis for the record (Exhibit F). It contained an unpublished letter written to the Las Vegas Review Journal April 17, 2001, by Sebastian Bridges just a few days before his execution.
Mr. Richard Siegel, representing the American Civil Liberties Union of Nevada, submitted information compiled by the Grant Sawyer Center of Justice Studies, at the University of Nevada, Reno, regarding the death penalty (Exhibit G). The most significant information in Exhibit G consisted of the comparison between the states of South Dakota and North Dakota. He commented North Dakota had no death penalty while South Dakota did. He added North Dakota had a lower incidence of murder than South Dakota. It was hard to make a case for the death penalty as a deterrent to murder with that statistic.
Mr. Siegel remarked it was clear a study would be done, but the question was whether a moratorium should also be invoked in the bill. He stated certain states showed four or five times more discrimination based on black victims. He asked if that was worse in Nevada, would it be enough to satisfy the committee that a moratorium should be included in the bill.
Mr. Siegel stated it was known some states had shown it cost $2.5 million to sentence people and house them on death row. He asked if that figure was $5 million in Nevada, if it would be enough to do away with the death penalty. He commented that he did not understand the position of people who held that they supported the death penalty no matter what a study would reveal.
Assemblywoman Ohrenschall stated she had heard testimony about the families of murder victims, but she had heard nothing about the families of the perpetrators. She stated when she first moved to Nevada she had become acquainted with a priest whose brother had killed his ex-wife and her new husband and because at that time, in California where the event occurred, there was a moratorium on the death penalty, he was not sentenced to death. It seemed like the priest got a call approximately every other week from Folsom Prison always asking for money, or other favors. The brother in prison essentially sucked the life out of his brother, the priest, the priest’s wife, and his children. She asked what rights should be accorded perpetrator’s families.
Mr. Siegel replied, in any system a very small group of people were sentenced to death for first-degree murder. He commented the focus during this testimony had been on the elements of cost and discrimination. He concluded he had never heard any testimony before about what happened to families of the perpetrators.
Vice Chair Manendo announced that the bill would be held open and sent to a work session.
Mr. Larry Struve, representing the Religious Alliance in Nevada (RAIN) and the Lutheran Advocacy Ministry in Nevada, provided written testimony to committee members (Exhibit H) and stated powerful testimony had been presented by others who were a part of the RAIN. He commented all the churches who were members of the RAIN had been engaged in death penalty dialogue for a number of years.
The RAIN supported the study that was a focus of S.B. 254. He asked that if a study was authorized, opportunity be given to members in the RAIN to participate along with others who were engaged in the death penalty process. They recognized that justice in a democracy was the responsibility of all the people.
Speaker Richard Perkins, representing Assembly District 23, noted he and Chairman Anderson were on opposing sides of S.B. 254 but he was testifying in opposition to the bill with all due respect.
Speaker Perkins spoke from prepared testimony (Exhibit I). He stated he was in opposition to the bill not as a legislator, not as Speaker of the Assembly, but as a career law enforcement officer.
Speaker Perkins stated he did not oppose the study proposed by the measure, but rather applauded those who sought it. He opined the results would bear out the effectiveness and fairness of Nevada’s criminal justice system and strengthen the use of the death penalty in the state. At the same time he had supported the bill forbidding the execution of the mentally retarded because it weakened the death penalty in Nevada and it was wrong.
Speaker Perkins opposed the moratorium contained in the bill. He explained he had been a member of the law enforcement community for over 17 years and in that time he had seen the aftermath of the most heinous of crimes. He commented he had been personally involved in tons of murder cases. He had seen the victims and families of victims.
Speaker Perkins stated in past weeks much had been spoken regarding the rights of murderers and asked who spoke for the families of those who were brutally murdered. He commented the innocent victims and their families were being belittled and their suffering seemed to have been forgotten.
Speaker Perkins commented there was only one capital crime, first-degree murder, in the state. He added committee members should remember when and how that penalty was imposed beginning with:
1. The fact the murder was committed to avoid or prevent a lawful arrest;
2. To escape from custody;
3. Committed to receive money or things of monetary value;
4. The murder was committed upon a peace officer or fireman;
5. The murder involved torture or the mutilation of the victim;
6. The murder was committed upon one or more persons at random and with no apparent motive;
7. The murder was committed upon a person less than 14 years of age;
8. The murder was committed upon a person because of the actual or perceived race, color, religion, national origin, physical or mental disability or sexual orientation;
9. It was done alone or with others during or after the commission of a sexual assault; or
10.The murder was committed on the property of a public or private school.
Speaker Perkins stated as recently as both the 1997 Legislative Session and the 1999 Legislative Session which added additional penalties for aggravating circumstances, caused him to believe the legislature was supportive of the death penalty in those types of heinous murders. He stressed if a crime was charged as a capital case, a jury had to then impose the death penalty and most juries were very unlikely to impose such a penalty. Since the death penalty was reinstated in 1976, nine murderers had been executed and each one had taken someone else’s life, and sometimes more than one life.
Speaker Perkins said several executed Nevada inmates were forever linked with their victims from Jesse Bishop and his victim David Ballard to Sebastian Bridges and the man he killed, Hunter Blatchford. He stressed each of those victims had families and friends whose lives would never be the same.
Those who were murdered and those who survived had no choice. The families of victims could not place a moratorium on their grief and Speaker Perkins stated he would be in favor of a moratorium on the death penalty if there was a moratorium on murder.
In 1976, the United States Supreme Court ruled in Gregg versus Georgia that the flaws in the Georgia death penalty law had been corrected and that the statute as written and administered was constitutional.
Nevada also reviewed its practices and amended its laws. Speaker Perkins noted in the quarter-century since the Gregg Decision, neither Nevada’s law, nor its application had been struck down.
Speaker Perkins stated if there was a criticism of the death penalty in Nevada, it was that the process took too long. There were those who would argue that the moratorium did not mean that a death sentence would not be carried out after the sunset date of the bill, but a moratorium on the death penalty was nothing more than justice delayed, and one amendment away from total repeal.
He asked committee members to consider the case of Carlos Gutierrez, who admitted beating to death his three-year-old stepdaughter, Mailin Stafford. In those three short years she had been beaten often, and finally, after several days of concentrated abuse and beatings, she died. Her parents threw her into a ravine, with no more care given to her in death than was given to her in life.
Speaker Perkins stated it was not the Governor, the Legislature, or the Director of the Department of Prisons who put the condemned to death, it was the people of the state of Nevada who had weighed in and said that enough was enough.
Speaker Perkins quoted from Justice Stewart when he wrote the Supreme Court Opinion in the case Gregg versus Georgia. “Capital punishment is an expression of society’s moral outrage at particularly offensive conduct . . . the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are, themselves, so grievous and affront to humanity that the only adequate response may be the penalty of death.” Less than 10 percent of convicted murderers in Nevada were on death row.
In the case of Gerald Gallego, he had been on death row since June 1984 for the deaths of two teenage girls in what were described as the “fantasy sex slave” killings. Mr. Gallego did not just kill two young girls, however. Over a period of 26 months, he and his accomplice together tortured, raped, and killed 11 young men and women. Among them were 14-year-old Brenda Judd; 13‑year-old Sandra Colley; and 17-year-olds Stacey Ann Redican and Karen Twiggs. They died horrible, terrifying deaths at the hands of Gerald Gallego, and Speaker Perkins suggested it was up to the law to speak for them and their families.
William Castillo was another of Nevada’s death row inmates who beat to death Isabelle Berndt, a retired schoolteacher. She was in her own home and he beat her to death with a tire iron. Ms. Berndt was 86 years old and the motive for the crime was robbery that resulted in a brutal murder.
Priscilla Ford purposely drove onto a downtown Reno sidewalk on Thanksgiving Day in 1980, killing 6 pedestrians and injuring more than 20 others. The reason she stated for doing it was to gain attention.
Michael Sonner was sentenced to death for the 1993 slaying of Trooper Carlos Borland. Trooper Borland was shot in the head after he stopped Mr. Sonner on Interstate 80 for failing to pay for gasoline at a truck stop. It was not the first time Mr. Sonner had killed. After escaping from a Lexington, North Carolina, jail, Mr. Sonner stole a car and began a cross-country crime spree that included two truck stop killings in Vega, Texas, just days before he left Trooper Borland dying along the interstate.
Speaker Perkins stated in the past few weeks no one had mentioned those victims, or University of Nevada, Reno, Police Sergeant George Daniel Sullivan. In 1998, Sergeant Sullivan was struck with more than 20 blows from a hatchet while he sat doing paperwork in his squad car. He left behind his wife, Carolyn, and five children. Sullivan’s murderer, Sioasi Vanisi, had said that he wanted to kill a cop. One of Mr. Vanisi’s cousins testified that Mr. Vanisi had “fun” killing the officer and afterward stomped in Sergeant Sullivan’s face. Mr. Vanisi ripped Sergeant Sullivan’s police utility belt from him to wear as a trophy.
Speaker Perkins quoted Mr. Mike Royko, the noted Chicago Tribune columnist, who once said, “It is because I have so much regard for human life that I favor capital punishment. Murder is the most terrible crime there is. Anything less than the death penalty is an insult to the victim and to society. It says . . . that we do not value the victim’s life enough to punish the killer fully.”
Speaker Perkins continued, stating that putting Sioasi Vanisi to death would not bring back Carolyn Sullivan’s husband or her children’s father, but at the very least it would say that others valued her husband enough to punish his killer. Speaker Perkins asked if the death row inmates should be allowed a choice they had not given their victims.
Speaker Perkins stated Edward Wilson was put to death in 1979 for the murder of undercover Reno police officer, James Hoff. While in the line of duty, Officer Hoff was stabbed repeatedly by Mr. Wilson and three other men.
Shawn Harte was sentenced to die for the shooting of Reno cabdriver John Castro Jr. in the head during an October 1997 robbery.
Michael Rippo was found guilty of strangling Lauri Jacobsen and Denise Lizi in a Las Vegas apartment in February 1992 during a robbery. He also tortured the victims with a high-voltage stun gun.
Antoine Williams killed William Nail, 74, and his wife Alice, 72, in September 1994, in Las Vegas. Mr. Williams went to the Nails’ home to borrow money to support his drug habit. When William Nail refused to loan him $20, Antoine Williams strangled him with an electric cord and then crushed his skull. He then strangled the victim’s wife, stabbed her and kicked her in the head.
Ricky Sechrest was convicted of murdering two young girls.
Zane Floyd was convicted of a killing spree at a supermarket in Las Vegas.
Speaker Perkins testified those people were not martyrs, they were murderers. He stated he could complete the list of those persons on death row, but the list of victims was far, far longer. He asked committee members if they recalled the name of anyone sitting on death row, that they also remember the correlating names of their victims.
Speaker Perkins stated he strongly believed in the rule of law, and he would work both within the legislative body and in his capacity as a law enforcement officer to uphold that law. He had often opposed legislation that would provide a convenient law enforcement response to the detriment of individual rights.
He believed every man and woman was innocent until proven guilty and that everyone, regardless of their alleged crime, their race, their gender, or their station in life, had a right to the best defense possible.
He also believed in justice, and agreed with the voters in 1996, who approved an amendment to the Nevada Constitution to expressly provide for the rights of victims of crime, he believed the law had a moral obligation to carry out the punishment imposed by society for the most egregious of crimes – murder.
Speaker Perkins stated throughout his career in the legislature, a law had never been suspended while it was studied. He recalled the entire criminal justice code was reworked in 1995 and resulted in creation of a Sentencing Commission to conduct further study and during that time the legislature had not stopped enforcing the law.
Speaker Perkins noted there were still polls that supported the death penalty, but there was another reason for long-standing support of the death penalty. That was the right of the victim’s loved ones to gain peace of mind through the death of the perpetrator of the crimes. He stated some might view that as barbaric; he saw it as justice.
He stated in Nevada the death penalty was rarely imposed and all precepts of law at trial and during the appeals process were followed. If a moratorium was placed on the death penalty, it would take lightly the lives of murder victims.
Speaker Perkins concluded by urging the committee to amend S.B. 254 to remove the provision that imposed a moratorium on justice.
Mr. Carpenter stated testimony had suggested there were more minorities on death row compared to other percentages of the population. He asked Mr. Speaker to comment on that issue. Speaker Perkins replied he acknowledged that was the case and that the study proposed by the bill would provide some answers for lawmakers. He stressed he also believed the system in Nevada had worked. Since 1976 Nevada had put nine people to death, seven who were white. He added he was not convinced the Nevada death penalty system was “broken” and he welcomed the study.
Speaker Perkins apologized for the length of his testimony and stated the meeting of the Assembly on the Floor would be postponed another 30 minutes to allow time for further testimony before the committee.
Chairman Anderson told the committee if S.B. 254 left the Assembly Committee on Judiciary with amendments, it would be re-referred to the Assembly Committee on Elections, Procedures, and Ethics to be reconciled with another bill that called only for an interim study. It was important to recognize the current committee would not be the final review of the bill.
Mr. Ben Graham, District Attorney’s Association, provided his history with the bill. Thirty-eight years prior, the first initiative he voted on was to abolish the death penalty. Twenty-four years prior, he began working in the Clark County District Attorney’s Office where he spent years working on direct appeals with people who had committed murders and were sentenced to death. He had taught in the University System for 22 years. He had been on the Death Penalty Committee in the Clark County District Attorney’s Office where the death penalty decision was not taken lightly.
Mr. Graham stated there were major prosecutors that some people viewed as strong death penalty advocates. Mr. Graham challenged an earlier comment that there were no murders that were tried without an aggravating circumstance. He said the vast number of cases that came before the Death Penalty Committee in Clark County and in Washoe County had not had aggravating circumstances and the decision to seek the death penalty was not made. A case-by-case analysis was needed and he commended Speaker Perkins for his briefing on some of the higher-profile cases.
Mr. Graham stated it was not possible to put death row inmates deep in prison and forget about them as had been suggested earlier. Such inmates killed others while in prison and they threw people over parapets in prison. He urged an objective study and stated it would serve all parties in the debate.
Mr. Graham stated he was not a strong death penalty advocate, but there were certain souls who did not deserve the benefit of continued life on the earth. He stated the offices represented by the District Attorney’s Association felt the death penalty system in Nevada was working although there were a few other opinions. A study would indicate that the system was working. Regarding the issue of racial and economic disparity, a study would demonstrate that the vast majority of crimes were being committed by people in those socio-economic groups. Mr. Graham welcomed an objective study, but stated a moratorium was not warranted.
Mr. David Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, stated the position of that office on the bill was a welcome of the study proposed by S.B. 254, but they opposed the moratorium and if a moratorium was enacted urged the exception be kept in place.
Mr. Sarnowski commented, unlike the district attorney offices, his office primarily dealt with capital litigation when it reached a federal court level. Sometimes that occurred many years after a case began. However, cases were prosecuted at the trial level, specifically crimes committed by inmates, murders committed by inmates while incarcerated. He echoed Mr. Graham’s comment that inmates such as those on death row could not be just locked up and forgotten about. Such inmates continued to rape, rob, and murder while in prison.
Mr. Sarnowski concurred with the estimate by Mr. Pescetta regarding the moratorium, that there were probably a “couple” of persons scheduled or otherwise eligible for execution because they would have exhausted all their litigation possibilities within the coming two years. He suggested the number could be as high as four.
Mr. Sarnowski provided an updated report of the Monthly Death Row Status Report (Exhibit J) drafted by his office. He pointed to the name of John Valerio on page 12. Mr. Valerio’s appeal had been denied in the Ninth Circuit Court of Appeals, however, for some reason the panel that denied him relief currently had his case on rehearing status since June 2000. It was hoped a decision would be made soon denying the rehearing request in which instance the case would almost automatically proceed to a Supreme Court hearing request. He stressed, there was no reason to impose a moratorium on actually proceeding with the execution imposed on any one of the defendants given the fact that they would have gone through multiple rounds of review with large numbers of justices and judges who examined their cases in minute detail, the facts and circumstances of those cases, including the propriety of the penalty imposed.
Mr. Sarnowski opined the fiscal note on S.B. 254 was inaccurate because there would be costs to the entities that had to react to the many probable requirements of a study committee and that would not come free or cheap in some instances. Of particular importance, some of the data provided in testimony concerning economic background of defendants was only rarely available to prosecutors.
Mr. Sarnowski suggested the “doctrine of unintended consequences” would affect the bill. He referred to S.B. 254, page 2, lines 24 through 26, that stated the bill would not, “Affect any appeal, petition for a writ of habeas corpus, or other request for judicial relief . . . .” He suggested that was not what would really happen. Nevada’s statutory law in NRS Chapter 34 provided a prisoner with or without a death sentence a full year after conclusion of direct appeal proceedings to file a petition of writ of habeas corpus. His office had been able to force death sentence prisoners to file the writs and counsel was appointed, and petitions could be amended. He suggested if the moratorium was enacted, the prisoners would have no impetus but to sit in their cells for 364 days following cessation of direct appeal before they filed their first writ. There would be no way to force them to do otherwise.
Likewise, at the conclusion of state court review, federal law allowed a one-year period under the Anti-Terrorism and Effective Death Penalty Act of 1996 to file petitions and that would apply as well. Mr. Sarnowski suggested the moratorium would, in actuality, allow a three-year hiatus on certain death penalty sentences.
Mr. Sarnowski stated there were 21 people listed in Exhibit J that were in some fashion finishing a direct appeal or finishing a state post-conviction process. Those inmates constituted approximately 40 percent of death penalty prisoners in the state. He stated the effects of the bill would impact the judiciary who might feel, “Why should they continue to review the death penalty cases, if indeed, in the end they might result in non-death cases.”
Mr. Sarnowski addressed the victim’s concerns. “No victim of any of the Nevada capital sentence prisoners has contacted his office in support of this bill in any form.” Within the last 30 days, he had spoken to several victims’ families who opposed the bill and were highly agitated because of it.
Mr. Sarnowski concluded with reference to an earlier statement that allowing victims to present a victim impact statement was unlawful and stated that was absolutely preposterous. The United States Supreme Court had ruled it was permissible. The Nevada Supreme Court had said it was permissible, and up to the current time the legislative body as a whole had said it was permissible.
Mr. Anderson asked in light of other legislation previously passed by the committee, relative to victim impact statements, how Mr. Sarnowski perceived the current bill taking away the right of victim impact statements. He expressed concern that it had been suggested that might be an outcome of the bill. Mr. Sarnowski replied he could only respond to the primary proponent of S.B. 254 and what he had said, which was that at least some capital sentences were based on the unlawful giving of victim impact statements. He suggested victim impact statements were not unlawful, but if a study was done, he could only infer the victim impact statement would be something the primary proponent would want studied, raising his level of concern.
Mr. Anderson commented that had not been one of his statements and given the earlier action of the committee, which was to broaden the victim impact statement statute, that was the view of the committee. He had not heard that statement in earlier testimony. Mr. Sarnowski concurred that Mr. Anderson had not made the remark and left it to each member of the body to recall the exact words of Senator Neal in regard to victim impact statements.
Mr. Brower stated the idea of a study seemed to have support although he remained skeptical that a study was needed at all. He explained it seemed the legislature should not spend time and money on a study in the absence of real evidence there was a problem in Nevada. Such action should not be based on anecdotal stories, skewed statistics, or hypothetical situations.
Mr. Brower stated the passage of the portion of the bill allowing a study was likely, and agreed with Speaker Perkins that a study of the type proposed by the bill would likely result in an affirmation of the fairness of the process in Nevada. He asked how post-conviction procedure worked in death row cases. He noted it seemed in every case where there was a conviction and a death penalty, an exhaustive, laborious study of the conviction was done in each and every case through the post-conviction procedures. Mr. Sarnowski replied every death penalty case was required by statute to be reviewed on a direct appeal by the Nevada Supreme Court consisting of seven justices. There were certain mandatory things the court must review, even if those issues were not raised in a lower court.
At a minimum, the Supreme Court was required to review a death row case to determine:
· Whether a sentence was imposed through prejudice;
· By arbitrary or capricious actions; and
· Affirm that at least one aggravating circumstance was found by the sentencing body beyond a reasonable doubt.
All court records were reviewed, lawyers were called to testify as to what they did and why they did it, they were queried about their tactics and strategy when certain decisions were made. If the decision was unfavorable to the defendant, the defendant could appeal with lawyers that had not represented them previously before the Nevada Supreme Court. From there a federal habeas corpus review was made, conducted largely on case records. He added, contrary to the characterization of allowing some people to go forward with assisted suicide, virtually everyone who had been executed “as a volunteer” had been found competent to make that decision.
Mr. Sarnowski noted there had recently been several high-profile cases revolving around the issue of mental retardation. That included Sebastian Bridges who was executed on April 21, 2001, and was found to have been competent.
Mr. Graham testified the death penalty review process was lengthy and exhaustive. He added there were many people of the persuasion of JoNell Thomas who made the system work. There was no fear of an objective study, but the moratorium was not warranted.
Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department and the Nevada Sheriffs’ and Chiefs’ Association, opposed the moratorium. He commented there were several people in the legislative building who had seen what murderers did. From a six-year-old child who explained to a paramedic she was trying to go to sleep because her head was being cut off, and she did die; to a man whose head was beaten from his body with a hammer and then the suspect consumed his brains.
Ms. Waldron concurred with statements made in opposition to S.B. 254. In addition, she stated there was a significant death penalty staffing review process in making the decision of whether or not to impose a death penalty based on the Statutes of Nevada addressed by Speaker Perkins. Certain mitigating factors that would not warrant the death penalty would be revealed during the sentencing process in favor of a defendant not receiving a death penalty. In Washoe County all those factors were reviewed before making a decision.
The Washoe County review process included the defense attorney who could present mitigating evidence, experienced and not-so-experienced prosecutors who met with the entire police staff to review the facts of a case in light of the statutory aggravating and mitigating circumstances. The process did not contemplate the race or economic status of a defendant. She opined the process was similar in all 17 counties of the state.
An exhibit also provided to the committee, for which no testimony was heard, was submitted by Reverend Doctor Jane Foraker-Thomason, Criminologist and Episcopal priest on, The Position of the Episcopal Church U.S.A. on the Death Penalty (Exhibit K) in support of S.B. 254.
Vice Chair Manendo closed the hearing on S.B. 254 and returned the gavel to Chairman Anderson.
Chairman Anderson stated the decision before the committee was to amend the bill and move it forward or to hold it in committee. The question of a study was still currently open in the Assembly Committee on Elections, Procedures, and Ethics that controlled what interim studies would be conducted.
Chairman Anderson explained the bill originated in the Senate Judiciary Committee and was an automatic referral to the Assembly Committee on Judiciary.
Chairman Anderson noted several members had been receiving e-mails over the past several days relative to prison conditions. He had also received a fax that morning requesting it be entered into the record, but the document would not be entered into the record because it did not affect the particular bill under discussion. He offered to make copies for members of the committee.
Chairman Anderson stated he had not included in Exhibit D documents Senator Neal had gathered describing difficulties of lethal injection. He offered to produce it for the committee at their discretion.
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Mr. Nolan requested a copy of the lethal injection documentation. He requested information regarding a breakdown by minority populations of how many murderers had been convicted and received a capital punishment sentence. The Chair requested Research staff to provide the requested information.
Chairman Anderson adjourned the meeting at 11:41 a.m.
Cindy Clampitt
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: