MINUTES OF THE meeting
of the
ASSEMBLY SubCommittee on Judiciary
Seventy-First Session
March 7, 2001
The Subcommittee on Judiciarywas called to order at 9:00 a.m., on Wednesday, March 7, 2001. Chairman Mark Manendo presided in Room 3138 of the Legislative Building, Carson City, 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.
SUBCOMMITTEE MEMBERS PRESENT:
Mr. Mark Manendo, Chairman
Mr. Greg Brower
Mr. John Oceguera
STAFF MEMBERS PRESENT:
Michelle Van Geel, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Clay Thomas, Deputy Chief, State of Nevada, Division of Parole and Probation, Carson City, NV
Jim Nadeau, Captain Detective Division, Legislative Liaison, Washoe County Sheriff’s Office, Reno, NV
James Jackson, Nevada Attorneys for Criminal Justice, Las Vegas, NV
Gemma Greene Waldron, Deputy District Attorney, Criminal Division, Washoe County, Reno, NV
Assembly Bill 54: Revises provisions relating to time within which prosecution for certain felonies must be commenced and certain provisions concerning genetic marker testing. (BDR 14-296)
Clay Thomas, Deputy Chief, Department of Motor Vehicles and Public Safety, Parole and Probation, supported A.B. 54 but wanted the subcommittee to know there was a similar Bill Draft Request (BDR) 14-512 that proposed testing and evaluation of persons convicted of certain sex offenses.
Mr. Thomas brought before the subcommittee two proposed amendments that involved language changes. The first change (Exhibit C) applied to Section 2, Subsection 6(l) (page 3, line 22) adding the words “or a conspiracy.” By adding “conspiracy” it would encompass more and would allow genetic markers from individuals that were involved in these types of crimes. The second change (Exhibit D) applied to Section 2, Subsection 5 (page 3, lines 3-4) adding the words “Nevada in” and “or, if supervised in Nevada pursuant to the Interstate Compact, against the county of residence.” It was believed to get a county outside of state of Nevada to pay for the genetic marking probably would not occur.
Captain Jim Nadeau, Washoe County Sheriff’s Office, also representing Nevada Sheriffs and Chiefs Association (NSCA), provided amendments during the original hearing on February 16, 2001 where “kidnapping” was added to page 3, line 22 and “genetic” was substituted for the word “blood” on page 7, lines 21 and 23. Captain Nadeau said he worked closely with James Jackson, Nevada Attorneys for Criminal Justice (NACJ); they did not agree on all terms, but on some issues they had reached agreement. There were concerns about an unlimited statute of limitations or removing the statute of limitations on kidnapping, attempted murder and stalking. The NACJ had recommended a 10-year statute of limitations, while NSCA felt 15 years was more appropriate. DNA had come to the forefront as solid evidence, and justified bringing A.B. 54 forward at this time. As for “biological specimen”, this terminology addressed the advances in technology available today.
James Jackson provided copies of a letter (Exhibit E) from JoNell Thomas, NACJ President, who opposed A.B. 54 citing issues related to due process, the right to confront and cross-examine witnesses, and the right to present a defense. Costs for investigation, expert expenses, travel, and witness expenses when they came back to the trial, were also cited in the letter. The next issue would be in regard to what other crimes would be exempt from the statute of limitations.
According to Exhibit E, NACJ suggested a 10-year statute of limitation to include only those crimes that were reported to a law enforcement agency. It was also suggested the statute of limitations only be extended in those cases where the suspect was not known to either the alleged victim or law enforcement personnel; it did not make any sense in a case where the suspect was already identified. The last suggestion related to the retention of records by law enforcement agencies, including jails and prisons, for a period identical to the statute of limitations.
Assemblyman Oceguera agreed with Mr. Jackson in regards to how long a person remained a suspect in a crime. He asked what was meant by “constitutional implications?” Mr. Jackson believed it referred to not taking away all the advantages that a fast and efficient prosecution would afford both sides. Assemblyman Oceguera agreed with Captain Nadeau as well, especially in situations where there was no suspect.
Captain Nadeau asked how far out could you actually prosecute a case? What cases were there, what witnesses were available, what evidence was available; that should not impact the confrontation of the witnesses. If you did not have the witnesses, that would become part of the prosecution of the case and then it would go to the jury to make their decision. As to the cost involved in the case cited in the NACJ letter, this might have been a bad example since the murder case did not have a statute of limitations. With the availability of DNA evidence, law enforcement and the courts were much better positioned to deal with prosecution and the retention of evidence stored properly. There was an issue about “identified” suspects that still needed to be resolved, which was why Section 2 of the NACJ letter was still under dispute between the NACJ and NSCA; they agreed to disagree. Captain Nadeau said the NSCA was not willing to “open that door” on that issue at this time; records retention was now regulated by statute.
Assemblyman Oceguera noted by adding “biological specimen” and given the technological advances available today, this increased the ability to solve those crimes in a more expeditious manner, and thus the cap on the statute of limitations seemed warranted.
Mr. Jackson agreed DNA would allow cases to be closed very quickly. DNA was like a fingerprint, if there was nothing in the repository to compare it to, that DNA evidence became an identifying mark to hold for later. It seemed fair that an outside limit be set, it was just a question of how much – 10 or 15 years.
Assemblyman Brower did not agree. Since there was no limit for murder and no limit for sexual assault, providing the crime was reported within a period of time; why should there be a limit for violent felonies, when there was no limit on murder and sexual assault? What was different about other violent felonies?
Mr. Jackson believed it came down to an issue of fundamental fairness, protecting the rights of the accused as well so that mischief was not played with the amount of time that was allowed to pass between a crime being reported and investigated, a suspect being identified, an arrest being made, and the prosecution going forward. This should not stand in the way of those “ultimate crimes,” murder and sexual assault, but 10 to 15 years with the current technological advances, was a fair amount of time.
Assemblyman Brower stated whatever the time lag might be between the commission of the crime and the prosecution of that crime, the same rules of evidence and the same burden on the prosecution remain. It should not be a problem of potential unfairness given the fact the burden would be the same. It would seem to be a chance for the perpetrator to be completely immune from prosecution despite having committed a violent felony. It did not make sense.
Captain Nadeau stated one of the significant initial concerns raised was the reporting aspect; language was already included in A.B. 54. He agreed it must be reported appropriately.
Assemblyman Brower was unsure the language was included in A.B. 54. Mr. Nadeau, Ms. Risa Lang, Committee Counsel, and Mr. Brower interacted with each other reading and discussing Section 1, Subsection 1 and 2 to determine if the language appropriately clarified the reporting time frame.
Mr. Jackson felt it was imperative that language very specifically stated the reporting time frame.
Captain Nadeau stated the NSCA supported the NACJ amendment in regards to having the county of residence pay for genetic marking. There were only two labs in Nevada capable of completing this task, one in Clark County and one in Washoe County.
Mr. Jackson expressed his concern regarding those people transferred to Nevada under the Interstate Compact for supervision of parole and probation. Although A.B. 54 took this situation under consideration, could this cause other problems? Did this need to be looked into further?
Gemma Waldron, Deputy District Attorney, Nevada District Attorney’s Association, supported a 15-year statute of limitations. She would not support the concept of “unknown suspect” because she believed the capabilities of law enforcement to have a data bank of DNA made everyone who had ever given a sample a suspect that would be known. She was neutral in respect to the records retention issue. Overall, Ms. Waldron was in favor of A.B. 54 with the suggested amendments.
Assemblyman Brower asked if Ms. Waldron believed there were any constitutional issues associated with changing the statute of limitations. Ms. Waldron said an extended statute of limitations would make her job harder, but it would not change anything that would be done to prosecute the case. She felt the crimes as set forth in A.B. 54 were of such a serious nature the statute of limitations should be extended.
Assemblyman Brower asked if an undermining of the prosecution’s case occurred after a long period of time? Ms. Waldron agreed and cited a 12-year old case that she was unable to prosecute for various reasons.
Assemblyman Brower asked what fiscal impact, if any, should be related to A.B. 54? Ms. Waldron replied it cost the same to conduct a case at 6 months after the crime occurred or 15 years after the occurrence. Costs may go up over time; it was expensive to conduct a case no matter when it occurred.
Chairman Manendo closed the public debate on A.B. 54.
Ms. Lang commented that A.B. 54 might require drafting in a different manner to include cross-references in NRS 171.085 and NRS 171.095.
Assemblyman Brower asked if the statute of limitations was extended to 15 years, did this not also extend the reporting period to 15 years of sexual assault? Ms. Lang replied in the negative. Ms. Lang continued that to remove Section 1 from A.B. 54, sexual assault would remain the way it was currently being handled; kidnapping, attempted murder and felony aggravated stalking would have the extended statute of limitations.
Assemblyman Oceguera clarified that a time period would be set to report the crime and the extended statute of limitations would apply to the prosecution of the case. Ms. Lang responded the bill was originally set up that way, but it had been suggested to be a simple extension of the statute of limitations so it would be changed to 10 or 15 years.
Assemblyman Oceguera said those two issues should be dealt with separately. Chairman Manendo agreed.
Mr. Jackson suggested a further amendment at the end of Section 1, Subsection 1, line 7 to include “is extended to a period of (number of years) within which the prosecution for the offense must be commenced.”
Assemblyman Oceguera asked if the witnesses had agreed on the number of years to extend the statute of limitations?
Chairman Manendo voiced concerned at 15 years. Assemblyman Oceguera believed the witnesses should make the decision. Assemblyman Brower agreed.
Chairman Manendo announced 15 years had been agreed upon. Previously submitted amendments from the original hearing on A.B. 54 were reviewed. Chairman Manendo asked if the change on page 7, line 23 should not be done, leaving the text to read “blood relationship.” Captain Nadeau agreed that was fine.
Assemblyman Oceguera asked for a definition of “mayhem.” Gemma Waldron said it was an act of disfiguring or cutting off a part of the body.
Mr. Jackson was concerned about the amendment to add “conspiracy” believing it could create more exceptions. Any crime could have a conspiracy, the contemplation of committing a crime but not completing it. The perpetrators might not be any less dangerous than those that complete the crime, but the crime was not committed.
Mr. Thomas stated the word “conspiracy” was originally placed in the amendment to cover those times where conspiracy was used as a bargaining chip; the person actually committed the crime, but the charge was reduced to conspiracy in plea-bargaining. Without that language included, it was not possible to obtain the genetic marker.
Assemblyman Brower asked if there was not a criminal charge, what was the difference? Mr. Thomas answered if conspiracy was not covered, and the person pled to the conspiracy charge, no genetic marker could be required.
Assemblyman Brower asked for further explanation. Gemma Waldron explained if a person was charged with a principal crime, and had probably committed that principal crime, but for whatever reasons could not be prosecuted for that crime, then that person would be plea-bargained down to conspiracy – a legal fiction. Parole and Probation still wanted the genetic marker testing because in fact that person did commit the crime, but in order to resolve the case a plea bargain had been offered.
ASSEMBLYMAN BROWER MADE A RECOMMENDATION FOR THE FULL COMMITTEE AT THE NEXT WORK SESSION TO AMEND AND DO PASS A.B. 54 INCORPORATING PROPOSED AMENDMENTS FROM WASHOE COUNTY SHERIFF’S OFFICE AND PAROLE & PROBATION WITH A STATUTE OF LIMITATIONS SET AT 15 YEARS.
ASSEMBLYMAN OCEGUERA SECONDED THE RECOMMENDATION.
MOTION WAS PASSED UNANIMOUSLY.
Chairman Manendo adjourned the subcommittee meeting at 9:55 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: