SENATE COMMITTEE ON JUDICIARY

MINUTES OF THE

SENATE Committee on Judiciary

Seventy-First Session

May 1, 2001

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, May 1, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was video conferenced to the Grant Sawyer Office Building, Room 4401, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

GUEST LEGISLATORS PRESENT:

Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27

Assemblyman Donald (Don) G. Gustavson, Washoe County Assembly District No. 32

Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9

STAFF MEMBERS PRESENT:

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Carolyn Allfree, Committee Secretary

OTHERS PRESENT:

David Ward, Vice Chairman, Commission on Mental Health and Developmental Services, Division of Mental Health and Developmental Services, Department of Human Resources

Michael Pescetta, Assistant Federal Public Defender

W. Larry Williams, Ph.D., Associate Professor, Department of Psychology, University of Nevada, Reno

Richard L. Siegel, Lobbyist, American Civil Liberties Union of Nevada, and Community Unity Coalition of Nevada

Larry Struve, Lobbyist, Religious Alliance in Nevada

The Reverend Phil Hausknecht, Concerned Citizen, Las Vegas

Jane Foraker-Thompson, Lobbyist, Religious Alliance in Nevada

Lila Holdsworth, Concerned Citizen, Las Vegas

V. Robert Payant, Lobbyist, Catholic Legislative Liaison

Benjamin J. Blinn, Lobbyist

John C. Morrow, Lobbyist, Washoe County Public Defender

Bobbie Gang, Lobbyist, Nevada Women’s Lobby, and National Association of Social Workers

Bryan Gresh, Lobbyist, Nevada State Psychological Association

David F. Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General

Victor Schulze, Deputy Attorney General, Special Prosecutions Unit, Bureau of Consumer Protection, Office of the Attorney General

Gemma Greene Waldron, Lobbyist, Nevada District Attorneys’ Association, and Washoe County District Attorney’s Office

Samuel P. McMullen, Lobbyist, Retail Association of Nevada

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association

James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, and Washoe County Sheriff’s Office

Don L. Means, Commander, Forensic Science Division, Washoe County Sheriff’s Office

Mike Ebright, District Administrator, Division of Parole and Probation, Department of Motor Vehicles and Public Safety

Philip Kohn, Special Public Defender, Clark County Public Defender

Chairman James opened the hearing on Assembly Bill (A.B.) 353. He said he did not want to spend a lot of time on A.B. 353 today because the committee has spent an inordinate amount of time on the death penalty this session and has recommended the entire death penalty be studied while a moratorium is placed on it.

ASSEMBLY BILL 353: Prohibits sentence of death for person who is mentally retarded. (BDR 14-801)

Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27, urged the committee to consider passing A.B. 353 separately from the moratorium bill (Senate Bill [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)

Assemblywoman Leslie stated an IQ (intelligence quotient) of 70 and below is the level that has been set for purposes of A.B. 353 and is the standard the state uses to provide services for the mentally retarded. Many states have outlawed capital punishment and, of the 38 states that still allow it, 14 exempt the mentally retarded, as does the federal system. She pointed out that the death penalty is supposed to be reserved for the most blameworthy of criminals, and said she does not believe the mentally retarded meet that definition.

David Ward, Vice Chairman, Commission on Mental Health and Developmental Services, Division of Mental Health and Developmental Services, Department of Human Resources; First Vice President, Washoe Association for Retarded Citizens, read from a prepared statement (Exhibit C).

Senator Wiener asked Mr. Ward what the age equivalency would be for someone with an IQ of 70 or below, and Mr. Ward replied that he is not an expert, but it is definitely the mental capacity of a child. Senator Care said he feels that punishment is being wasted if a person does not comprehend the reason for the punishment, and he asked if all mentally retarded persons lack the capacity to comprehend the impact of their acts. Mr. Ward said an IQ of 70 or below covers a huge range of intelligence. People with an IQ of 70 can function in society, with support, he said, but cannot realistically be expected to function without some sort of structure and people to help them make everyday decisions. He said people with an IQ of 70 cannot fully comprehend the impacts of their actions. “It is not . . . that they do not know it is wrong to do it . . . My son, for example . . . has a strong feeling, a sense, about right and wrong; but he is equally easily persuaded to do something that is wrong if he thinks it would please you,” he said.

Senator Washington asked Mr. Ward if most mentally retarded people who commit crimes have been persuaded or influenced to do so. Mr. Ward replied, it would take a legal scholar to answer that question definitively, but few mentally retarded persons do very much independently. He said he would guess the vast majority who commit crimes are doing it with some influence from some other source. As a society, he said, we do not execute children who commit heinous crimes, and the point he wants to make is that someone with an IQ of 70 has the mental capacity of a child. He added, mental retardation is not an excuse; the retarded are not innocent, just less culpable. Senator Washington expressed concern about the rebuttable presumption that a defendant is mentally retarded, provided for in section 1, subsection 6, of A.B. 353. He said there ought to be a showing that such a person did not commit the crime of his own volition.

Senator Porter asked how mentally retarded persons are treated in the prison system and whether they are treated as mentally ill or placed within the general prison population. Mr. Ward said he thinks they are part of the general prison population and, because they rely on structure in their lives, might be fairly content. He said, “I think life imprisonment for someone who is found guilty of knowingly committing murder is a compassionate and reasonable consequence.”

Michael Pescetta, Assistant Federal Public Defender, death penalty litigator, made the following statement:

My experience in this area has been having one capital client who is mentally retarded . . . His mental age has been estimated at . . . between 7 and 9 years old. But, if you met this client, you would not know that he is retarded . . . Because he is 40 years old, he has spent a lifetime developing skills to cloak the fact that he is impaired . . . The basic question of the bill . . . in terms of culpability, [is], should we be imposing the most severe penalty that the law can impose on people who are in the bottom 1 to 2 percent of the population in terms of intellectual functioning? Those people have a significantly reduced ability . . . to understand the consequences of their actions, although, in the main, [they] understand the difference between right and wrong. The problem is [my client’s] inability to see that he is being led into something that is going to turn out [being] very wrong; his ability to stop and say, “I am not going to proceed with this,” is fundamentally different from ours, because he has gotten by through his whole life in fitting in, in trying to please those people around him and to do what they want him to do . . .

Mr. Pescetta continued:

The structure is what the person fits into. My client has been on death row for 19 years . . . in the structured setting of the prison, where the rules are clear, [and] he follows those rules . . .In answer to a point that was made by Senator Washington, my client has never been arrested or charged or convicted of an offense that he did not commit with other people. That is altogether typical of people who get into the criminal justice system who are mentally retarded . . . And, generally speaking, it is the retarded person who, because of his inability to think his way out of situations [as] other people do, is generally left holding the bag.

Chairman James noted, for a death penalty to be imposed, there must be aggravating circumstances, and he asked Mr. Pescetta what instructions the court gives regarding mitigating circumstances. Mr. Pescetta answered, jury instructions list the eight statutory mitigating instructions plus “any other mitigating circumstances,” and instructs the jury to weigh any mitigating factors against the aggravating factors. The jury may weigh those factors any way it wishes, he said, but the death penalty may be imposed only if the aggravating factors outweigh the mitigating factors; the only formal hurdles are, (1) whether there is an aggravating factor that has been proven beyond a reasonable doubt, and (2) whether the mitigating evidence outweighs the aggravating factors.

Chairman James said, if mitigating factors are considered in the process, the mental capacity of the client would be considered as a mitigating factor at the death penalty phase. And, he said, the jury might decide he should get the death penalty notwithstanding his mental condition. “The problem with that,” Mr. Pescetta said, “is this body should draw a line below which . . . it is just not appropriate.” Chairman James asked if that is because the system is not working now.

Mr. Pescetta replied as follows:

Even assuming the death penalty system functions perfectly . . . the fact of the matter is, a person whose IQ is below 70, that person’s mental functioning affects the whole proceedings . . . One of the major problems with mentally retarded defendants is false confessions . . . When asked, “Why didn’t you say something about this?” my client said, “Nobody ever asked me.” That is a difference in intellectual function that not only affects that defendant’s dealings with the lawyer and the lawyer’s ability to litigate the case, but, assuming you have that false confession and that is in front of the jury, how is the jury supposed to . . . put itself, in terms of assessing the mitigating evidence, in the mind of somebody who, though demonstrably an adult man, has the mind and the reactions of a 7- to 9-year-old child? And, that is the problem; there is a point at which the ability of the jury and the system as a whole to fully appreciate the effect of this disability as mitigation just is not adequate.

“That is a very good argument; but, I could make the same argument about any other mitigating factors,” Chairman James said. “I think maybe we are trying to make ourselves feel good about a broken system . . . Aren’t you concerned, if we pass this we are saying it is not okay to execute the mentally retarded [but] it is okay to execute him if he is not? So, if you have an IQ of 72 . . . then you can be executed?” Mr. Pescetta said he tries not to bring his feelings about the death penalty as a whole into the argument, and Chairman James said, “But, I want you to, because I think we are looking at a little piece of a larger issue.” Mr. Pescetta responded it is better to do a small good than no good at all.

Mr. Pescetta continued:

The problem is, in the context of the death penalty system as a whole . . . there are sufficiently serious considerations that also deserve to be addressed. For instance, my client, who does have an IQ below 70, was in the criminal justice system in Nevada for 14 years before anyone noticed that he was mentally retarded . . . and found that he was tested when he was 13 years old and had an IQ of 64. I think that is a terrible reflection on the death penalty system as a whole. But, for the purpose of this bill and for the purpose of the interests of my client, I would much rather say, yes, the death penalty system as a whole does need to be fixed . . . But, for the purpose of this particular class of people, whether or not the death penalty system worked perfectly 100 percent of the time in other respects, this is a category of people who, like people under 16, just should not be subject to the death penalty at all.

Mr. Pescetta added:

I think there is a distinction in terms of the other mitigating factors, some of which are transitory, like the effect of an emotional disturbance at the time of the crime. This is a disability that is intrinsic to the person, that shapes the person’s whole functioning throughout his or her life. So, in that sense, it is different from a mental illness, which can come and go . . . which may be susceptible to medication. My client . . . however old he gets, however normal he looks, he is never going to be able to think like an adult . . . and we are going to rely on life without possibility of parole, as the recourse, which is still available under this statute.

Mr. Pescetta said he wanted to make the point that it is a rebuttable presumption that the defendant is mentally retarded if he or she has an IQ below 70, and the prosecution may attempt to rebut the presumption.

W. Larry Williams, Ph.D., Associate Professor, Department of Psychology, University of Nevada, Reno, provided a document that he said contained facts about mental retardation (Exhibit D). He said the fact that someone has an IQ below 70 does not mean he or she is mentally retarded. It demonstrates intellectual functioning on an intellectual test. A diagnosis of mental retardation requires that level of functioning plus significant sub‑functioning on two of ten adaptive behavior domains, he said. Dr. Williams said the adaptive behavior functions a person must be sub-functioning in to get a diagnosis of mental retardation include practical intelligence and social intelligence, and it is determined by a psychologist or a psychiatrist. These are people who seek to please, who adopt vocal verbal behavior that they do not really understand, who use catch phrases and words that they think are cool, who will say and do what they think other people like, and who do not comprehend the finality of death. “So, they might, in watching Batman on TV, take a baseball bat to somebody, not realizing that they are killing them [sic],” he said. “It [mental retardation] cannot be faked; it can be tested, it can be assessed by professionals, and a diagnosis is given. The diagnosis is not just the IQ; that is only the intellectual type of functioning, which correlates with the other adaptive behaviors.”

Chairman James asked Dr. Williams about the kind of person who is mentally retarded but has tremendous intellect in specific areas, and whether that person could be executed under A.B. 353. Dr. Williams said, in many of those instances, those people do not have mental retardation; they have abnormal social functioning, but are abnormally brilliant in some areas. He said intelligence scores are made up of several areas of functioning. “Somebody could be very, very good at math . . . and very, very lousy at social interactions or special relations or other types of things, such that the aggregate overall score would be lower. If someone were so brilliant in one area that it could up their [sic] overall score, then they [sic] would be above 70,” he stated.

Richard L. Siegel, Lobbyist, American Civil Liberties Union (ACLU) of Nevada, Community Unity Coalition of Nevada, and Professor of Political Science, University of Nevada, Reno, addressed Chairman James’s question concerning simply considering mental retardation as a mitigating factor. He said, in 187 of the 192 countries of the United Nations, a jury or judge is not given the right to execute a mentally retarded person, even as a mitigating factor. The majority of the states of the United States either do not have the death penalty or have ruled out executing mentally retarded people and do not depend on the mitigating factor, he said, and over 95 percent of the countries in the world do not execute the mentally retarded. Mr. Siegel said, at the request of Assemblywoman Leslie, he looked at public opinion polls concerning the death penalty and the mentally retarded (Exhibit E, Exhibit F, and Exhibit G) and found only 11 to 21 percent of Americans support the execution of the mentally retarded.

Larry Struve, Lobbyist, Religious Alliance in Nevada (RAIN), submitted a letter from the five Christian member-church judicatories expressing support for A.B. 353 (Exhibit H).

The Reverend Phil Hausknecht, Concerned Citizen, Las Vegas, spoke in support of A.B. 353. He said members of the coalition are not experts in the area of capital punishment, but they speak theologically and morally. They believe, since all people are created in God’s image, no person is outside the boundary of redemption, he said. He said it has been pointed out that mentally retarded persons need help and support in order to function in society. If such a person commits a capital crime, he said, it means that we as a society have failed in taking care of that person.

Jane Foraker-Thompson, Lobbyist, Religious Alliance in Nevada, read from a prepared statement (Exhibit I). She stated she is a trained criminologist as well as an Episcopal priest, and has expertise in both areas. She said she was also a victim advocate for over 20 years and found, in general, victims do not want revenge; they just want justice.

Lila Holdsworth, Concerned Citizen, Las Vegas, spoke in support of A.B. 353 and made the following statement:

I have worked with people with disabilities for almost 30 years. People with mental retardation have a permanent disability, which impairs their ability to understand complex and abstract situations . . . They want to be accepted, they want friends, and they want to be a part of the community . . . Many have learned to blend into the community by agreeing with people. They want to please, so, they will agree to anything to gain acceptance. This is what I fear happens when [they are] questioned by law enforcement and attorneys. They will say what the questioner wants to hear, to please the person and to get out of a stressful situation . . .

When a crime is committed, there is a pressure to find the offender. A person with mental retardation could easily be accused. They look different, they act a little different [sic], and they may not have the communication skills to defend themselves. They may not understand the words used by law enforcement and will try to mask their disability by pretending to know more about the situation than they do . . . When you talk about the question between right and wrong . . . usually they may learn what is right and wrong in different situations, but they may not be able to generalize as to all situations. These people are followers; they do not discriminate between good people and bad people; they want to be accepted by anybody who will accept them . . .

How is guilt determined? Is it by confession or by accusation? Do our law enforcement and our attorneys really clearly understand the disability and can they use the simple words and phrases consistently when they are working with these people? That is truly my concern.

V. Robert Payant, Lobbyist, Catholic Legislative Liaison, stated he served for a number of years as dean and president of the National Judicial College and, earlier, for 23 years as trial judge in Michigan. He said he thinks A.B. 353 is a well‑crafted bill in that it provides that people whose life history shows they have significant deficits in learning ability and in handling the affairs of life would be spared execution, and the decision-making would be with Nevada district judges. He urged the committee to approve A.B. 353.

Benjamin J. Blinn, Lobbyist, former special education instructor, spoke in support of A.B. 353, but said he questions setting the IQ level at 70 for defining a mentally retarded person because there is such a wide variation on IQ tests.

John C. Morrow, Lobbyist, Washoe County Public Defender, reported Arizona has been debating this issue, and he learned this morning that the bill had passed through the legislature. From a practitioner’s standpoint, he said, it is difficult to work with the mentally retarded to craft a defense because they do so many things detrimental to their defense. He said, “They just do not process things like regular people do.” He reiterated the statement made earlier that reserving the ultimate penalty for the most culpable is what should be done. Chairman James asked Mr. Morrow if he believed in reserving the ultimate penalty for the most culpable, and Mr. Morrow responded that he did. Chairman James asked, “We should pass this so we only execute the people who should be executed?” Mr. Morrow said he thinks that is correct.

Bobbie Gang, Lobbyist, Nevada Women’s Lobby, and National Association of Social Workers, said both organizations support A.B. 353.

Bryan Gresh, Lobbyist, Nevada State Psychological Association, said the membership of the organization is in support of A.B. 353, and he delivered a letter that he said is “reiterating what has already been put on the record this morning” (Exhibit J).

David F. Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, presented a document prepared by Victor Schulze, Deputy Attorney General, Special Prosecutions Unit, Bureau of Consumer Protection, Office of the Attorney General, Las Vegas (Exhibit K). Mr. Sarnowski addressed what he said are some very difficult problems with A.B. 353:

Section 1 . . . creates a one-sided fight that is contrary to our adversarial system . . . The first thing that will happen is that the defense lawyer gets to have an ex parte hearing with the judge, and the judge makes a determination . . . [on] whether or not hearings are required. There is no provision in the bill that the state get access to the transcript . . . to find out what happened, what was said, what advocacy occurred during the very first time . . . and we object to that for the following reasons: The requirement in the bill, page 2, starting at line 6, that the judge has to decide the issue . . . I do not consider it fair that the judge has had at least 1 or more ex parte hearings, during which counsel could at least have the opportunity to advocate their position, and the state has not been a party to that.

Senator Porter asked Mr. Sarnowski if he is opposed to the concept or to the process, and Mr. Sarnowski said he is addressing the process, to which the attorney general’s office is opposed. Additionally, he said the office has questions about the concept, which Mr. Schulze would address. Senator Porter said if they were opposed to the purpose of the bill, that is one thing; but, if they are opposed to the process, they may be able to look at ways to improve the process. Mr. Sarnowski said he did not know if the bill can be fixed. Senator Porter asked for clarification on whether they are opposed to the bill completely, because, he said, it would affect the mind-set of the committee.

Mr. Sarnowski continued:

If you take the same problem, that the judge has already had an ex parte hearing and has been subject to advocacy by the defense, then you get the situation where . . . there may be a three-judge panel deciding a sentence, rather than a jury. It takes a unanimous vote of three judges to impose a death sentence, one of those judges being the trial judge, who will have already gone through this process . . . We do not think it appropriate that the judge has been exposed to, in an ex parte proceeding, the material and possible advocacy on behalf of the defendant . . . Without knowing and without a provision allowing the state to find out what happened, the state goes into the . . . supposed adversarial fight with one hand tied behind its back.

If you look at page 2, lines 1 through 7 . . . the 30- and 15-day time frames are totally inadequate and . . . really put the state at a disadvantage. Assuming the defense gets the state the material in 30 days, the state has . . . 15 days . . . to get this defendant examined. I can tell you it is extremely difficult to find experts who can be available in short time frames and then . . . to get them to prepare reports and get them back to anybody in the criminal justice system in time to accomplish what this bill apparently intends to accomplish . . . The other problem, with the appellate provision . . . section 3 allows a defendant and the state to appeal pretrial. My original problem with the bill is that the state had no ability to appeal a judicial ruling or finding that the defendant was in fact mentally retarded . . . Once a defendant has had a decision-maker look at what sentence to impose, the state cannot appeal. The state has no remedy, once you have already had a hearing . . . So, I suggested the state be given an opportunity to appeal. Well, the bill, as written, does that, but what it also does . . . is, it gives a defendant a right to appeal before a trial ever begins and, therefore, builds in more delay in the already complex and prolonged capital litigation process.

With regard to the applicability provisions . . . in section 6 . . . I would suggest this bill, if enacted, will create an automatic constitutional challenge for those already sentenced.

Chairman James agreed, saying it is completely arbitrary. Senator Porter noted this is the first reprint of A.B. 353, and he asked Mr. Sarnowski if any of his suggested changes were followed. Mr. Sarnowski said they attempted to fix the problem of the state’s not having an opportunity to appeal. He said he did not make his comments about the ex parte process in the Assembly committee hearing because he just did not see it.

Mr. Schulze, speaking from Las Vegas, said, in addition to carrying out criminal prosecutions, he is also the hate crimes coordinator, the Nevada representative to the National Attorneys General Association hate crimes committee, victim advocate, and author of the handbook for victims of violent crime in Nevada. He spoke from his prepared statement (Exhibit K). He said myths surrounding psychological testing have contributed to a general belief that intelligence testing is rational, scientific, and objective, but IQ tests do not do what most people think they do. IQ testing is unreliable, he said, and the state’s criminal justice system should not rely upon it. The primary fallacy of A.B. 353 is that it assumes all mentally retarded people are identical in every aspect. He said he believes the bill is superfluous because the law already provides two separate legal mechanisms concerning mental retardation: (1) Mental retardation can be raised as a mitigating circumstance, and (2) if a defense attorney believes his client does not understand the charges and cannot assist in his defense, he can request a competency determination from the court.

Another major problem Mr. Schulze said he has with A.B. 353 is, while the definition of mental retardation includes both IQ and demonstrated adaptive functioning aspects, the bill establishes a rebuttable presumption based on only one aspect, the score on a psychometric test; the entire second aspect is completely ignored, he said.

Gemma Greene Waldron, Lobbyist, Nevada District Attorneys’ Association, and Washoe County District Attorney’s Office, expressed opposition to A.B. 353 because of the same concerns Mr. Schulze outlined. She said she does not believe it is any more fair to stick someone who obviously is low-functioning in prison, where he can be taken advantage of for the rest of his life, than to put him to death.

Chairman James asked Mr. Pescetta to consider whether it is fair to outlaw the death penalty for the mentally retarded, but apply it only to those people who are not already convicted before October 1, 2001 (section 6 of A.B. 353). Mr. Pescetta said he thinks the provisions of the bill could be made retroactive with only a minimal effect on the number of people on death row.

Chairman James commented that A.B. 353 is quite flawed, and its sponsors are confusing inevitable manifestations of inherent and incurable flaws in the death penalty, with procedural things “that we can tweak.” He said this committee has approved a moratorium on all executions while the entire system is explored so an appropriate solution can be found. Chairman James closed the hearing on A.B. 353 and opened the hearing on A.B. 375.

ASSEMBLY BILL 375: Enacts provisions governing possession, use, manufacture and distribution of certain items employed to commit theft. (BDR 15-1462)

Samuel P. McMullen, Lobbyist, Retail Association of Nevada, said A.B. 375 is the product of interstate task forces and other crime-stopping efforts in the retail community that have pointed out a specific problem having a direct application to the proliferation of meth (methamphetamine) labs. It is also a general issue for the retail association, he said. He explained the bill as follows:

The bill . . . has two parts . . . to make sure that the counterfeiting of UPC (universal pricing code) labels or sales receipts is a crime . . . and . . . the use of shielding devices or theft-detection device deactivators, which would . . . shield, either magnetically or electronically, moving merchandise outside a store through the gates and the sensors . . . As opposed to using universal price code labels, we created a generic definition [section 2, subsection 4] . . . If you have more than 15 of these fraudulent sales receipts or inventory pricing labels and you clearly have a bulk of evidence saying you are much more in the business of producing these than just an incidental forgery . . . we step the penalty up to a Category D felony [section 2, subsection 3] . . . The second portion . . . is a Category D felony, and you will see the definitions on the second page [section 3, subsection 4]. These kinds of things are issues . . . where the sales receipt, even the UPC label, has been forged; [e.g.] they will be put on a box for return. We have seen all sorts of variations . . .

Senator Care asked about the language in section 3, “intent to commit,” and whether it would apply if a device were found in someone’s possession nowhere near a shopping center. Mr. McMullen replied there would have to be circumstantial or direct evidence that would cause someone to believe intent to cheat or defraud existed at the time of arrest. He said they are looking for the person who is in the business of marketing these sales receipts or sneaking them into boxes or putting meth precursors in lead bags and walking out with them; they are looking for a pattern for clear intent.

Senator Care said Mr. McMullen just used the word “pattern.” “In shoplifting, you look at the value,” he said. He noted there was no mention of the dollar amount for the 15 receipts mentioned in section 2, subsection 3, and Mr. McMullen explained that direct shoplifting not involving manufacture or forgery of sales receipts is treated differently. “If someone enters into an actual forgery to accomplish that, which is more than just secreting it on their [sic] body . . . if they actually go to the extent where they have printed up a document, forged it or somehow added to the direct crime of shoplifting . . . we were trying to get at that as a separate item,” he said.

Chairman James asked Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, to explain the Category D felony and the Category E felony provided for in section 2 of A.B. 375, which are based upon the number of items in a person’s possession, compared with theft, which is traditionally based upon dollar value. Mr. Graham said the potential for damage is what is being considered in this bill and not necessarily a dollar amount. “It is like credit card slips and that sort of thing, that would open it up to almost an unlimited amount of damages,” he said. Senator Care asked, again, about intent. Mr. McMullen said, while theft is involved and can be a separate crime, this really targets the activity of the forgery itself. Additionally, he said, possession, under section 1, subsection 3, is not a crime in and of itself; the subject would have to violate subsection 1.

Chairman James said the number of receipts or labels is still problematic. He asked if the purpose is for changing the price, and Mr. McMullen said it happens more when stolen merchandise is returned and bar codes are forged. Chairman James said he thinks there should be something that relates the penalty to the value of the item involved. Mr. McMullen emphasized it is more important to get a handle on the criminal enterprise. “They are not going to try to do it for small-value things; these . . . are usually pretty high-volume enterprises,” he said. Chairman James pointed out that the bill is written to cover things regardless of value, and Mr. McMullen reiterated it is not shoplifting, but a sophisticated operation they are trying to target. “It has a seriousness that goes beyond whether or not the value of a single item is being moved in or out of a store,” he said.

Ms. Waldron pointed out that forgery is a crime regardless of the amount involved in the forgery; but uttering increases in seriousness depending on how much is actually obtained by the uttering of that forged instrument. “So, maybe there needs to be two crimes, one for the actual possession of . . . the forged documents; and, if they have actually gone to Macy’s and turned them over and you have a dollar amount of what they were able to get because of that, it could be akin to uttering a forged instrument,” she suggested. Chairman James agreed and said it needs to be looked at. He said Allison Combs, Committee Policy Analyst, found Nevada Revised Statutes (NRS) 205.210, concerning displaying or advertising goods with a false trademark, “and it becomes a higher level crime if you have 1000 versus 100 saleable units, or, if the amount involved is $1000 to $10,000 or over $10,000 . . . and then, also, the amounts are set at an amount which is obviously part of what you are saying, a commercial enterprise, 100 units or 1000 units. Fifteen is not that,” he said.

Mr. McMullen said, “Our point is that this is really a forgery; it is not like counterfeiting, it is not like holding yourself out in a trademark situation; this is actually . . . if this crime is proved, they have intended to cheat or defraud a retailer, they have forged documents that generally would only be produced by that retailer . . . It is not necessarily measured for us by the amount that is being stolen or being at risk; the whole operation is at risk at that point.”

Chairman James closed the hearing on A.B. 375 and called for a recess at 10:30 a.m.

Chairman James reconvened the meeting at 11:50 a.m. and opened the hearing on A.B. 489.

ASSEMBLY BILL 489: Requires genetic marker analysis to be obtained from certain offenders convicted of felony. (BDR 14-1038)

James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, Washoe County Sheriff’s Office, explained A.B. 489 brings all Category A, B, and C felonies under the requirement of mandatory testing, and he said the agencies he represents support the bill.

Assemblyman Donald (Don) G. Gustavson, Washoe County Assembly District No. 32, provided a list of felony offenses that would be subject to genetic marker testing under A.B. 489 (Exhibit L), and made the following statement:

DNA (deoxyribonucleic acid) testing, or genetic marker testing, has become one of law enforcement’s most effective tools in identifying suspects and has proven the innocence of many suspected criminals, also . . . The state of Virginia collects DNA samples from all convicted felons . . . When Virginia compared DNA evidence found at rape scenes against its all-felons DNA database, researchers discovered that 40 percent of the successful matches were from felons who had been included in the database because of nonviolent offenses. Consequently, states that only collect DNA from violent offenders may reduce their likelihood of catching a rapist by as much as 40 percent.

Assembly Bill 489 will expand DNA testing in Nevada to include all Category A, B, and C felons . . . There will be very little fiscal impact, due to the many grants that are now available. In December of 2000, Congress passed H.R. 4640, which will provide $170 million in grants over the next 4 years to conduct criminal DNA analysis.

HOUSE RESOLUTION (H.R.) 4640 OF THE 106^TH CONGRESS: The DNA Analysis Backlog Elimination Act Of 2000. To make grants to States for carrying out DNA analyses for use in the Combined NA Index System of the Federal Bureau of Investigation, to provide for the collection and analysis of DNA samples from certain violent and sexual offenders for use in such system, and for other purposes.

Senator Care said if a DNA sample were taken from everyone on Earth, we could eventually have a 100 percent match for every crime scene. He asked why this data would need to be compiled on, for example, a securities fraud violator. Assemblyman Gustavson said he would not want to see everyone tested either, and it is meant mainly for Category A, B, and C convicted felons.

Don L. Means, Commander, Forensic Science Division, Washoe County Sheriff’s Office, addressed Senator Care’s question, saying they have struggled with this and with AFIS (Automatic Fingerprint Identification System). He said when violent criminals are identified within AFIS, they are not necessarily individuals who have been registered as murderers or as rapists; they are individuals who are registered for anything from a minor misdemeanor, but just happen to be booked into the facility; that is how a lot of murders from out of state are caught, he said. So, including Category A, B, and C felons is not that much of a reach, he said. Mr. Nadeau noted this database is a criminal database only, under the FBI (Federal Bureau of Investigation) CODIS (Combined DNA Index System), and the data goes into both the state repository and the national CODIS.

Assemblyman Gustavson said the list he provided (Exhibit L) contains the categories covered under current law and, in bold, italicized print, the new categories proposed. Senator Washington asked if there would be a significant fiscal impact to the bill, and Chairman James answered the Department of Prisons indicates it is insignificant because it takes blood samples already. Senator Titus asked, “Do you need this information on somebody who steals trade secrets or [commits] gaming tax evasion?” Mr. Nadeau said to expand the list to try to capture those people into the system makes the list more and more complicated. “Obviously, there are some that may not have significance, but . . . our experience is . . . they have a nexus to more serious crimes,” he said. It is easier to include the whole category than to make a laundry list, he added. Senator Titus said she can understand inclusion of the Category A and B felonies, but many Category C felonies are white collar crimes and not something for which DNA would be needed. Mr. Means responded that it would depend on the nature of the white collar crime.

Mr. Means continued:

This, basically, is a database much like the fingerprint database, where you have an unknown offender. Say, somebody had sabotaged somebody’s computer system, somebody had stolen trade secrets . . . We . . . have been able to . . . [swab fingerprint smudges] and develop DNA where there was not a readable fingerprint. So, it would depend on the exact type of crime. It could be a threat to a public official; you could get something in the mail where we would actually swab the gummed part of the envelope or the stamp. The difficulty would be to cherry pick exactly which crimes [should be included].

Senator Titus asked if the information is shared with other states, and Mr. Means answered the information goes into a national database and is critically important to Nevada because of Nevada’s transient population.

Mike Ebright, District Administrator, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, stated the Division of Parole and Probation is in favor of A.B. 489. He said it will create an increase in the intake process, but he believes it is an increase they can handle and the information provided will be beneficial to the criminal justice system and public safety.

Chairman James closed the hearing on A.B. 489 and opened the hearing on A.B. 327.

ASSEMBLY BILL 327: Revises order in which arguments must be presented during penalty hearing in cases where death penalty is sought. (BDR 14‑1082)

Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9, said A.B. 327 provides, during the penalty hearing for a death penalty case, the district attorney or other counsel for the state must open the argument; the defense or his counsel may then respond, followed by a rebutter by the state; finally, the defendant must conclude the argument in surrebutter. She said she believes the bill is important, even with the moratorium potentially passing (S.B. 254). The death penalty verdict is set forth in NRS 175.554 and provides that the jury must find there are no mitigating circumstances sufficient to outweigh the aggravating circumstances, she said. She stated, “This places upon the defendant a burden . . . to prove that mitigation outweighs aggravation . . . Those legislators who want a death penalty law that passes constitutional scrutiny and limits appeals so victims may get on with their lives, should . . . support this legislation, as the legislation takes away a significant issue that is always raised on appeal by those who represent the defendants.”

Philip Kohn, Special Public Defender, Clark County Public Defender, stated A.B. 327 addresses a major gap in Nevada death penalty legislation, and he made the following remarks:

Nevada Revised Statutes 175.141 . . . provides for the order of trial in a criminal matter. Paragraph 5 specifies, “the district attorney, or the attorney for the state, must open and conclude the argument.” At the trial stage, I have no argument with this statute. In a criminal trial, there are strict rules of evidence and the entire burden of proof is on the prosecution. Therefore, the state gets the final word. The penalty phase of a death penalty trial is very different. The rules of evidence are relaxed and hearsay is admissible. The burdens of proof are also different. As [Assemblywoman Giunchigliani] has just pointed out . . . [NRS] 175.554 sets forth when a verdict of death may be imposed . . .

Unlike in a trial, where the burden is entirely on the state, there are two burdens in a penalty phase; the state must prove the existence of an aggravator, and the defendant must show that mitigation outweighs aggravation. As a practical matter, in almost every death penalty case, at least one aggravator is proved beyond a reasonable doubt in the first phase, the trial phase . . . In almost every penalty phase, the jury has already found the defendant guilty of a felony other than murder which is consistent with an aggravator enumerated in NRS 200.033. This is not true of the defense issues; the evidence in mitigation has not been placed before the jury prior to the penalty phase. To avoid being death-eligible in Nevada, the defendant has the burden of proving that mitigation outweighs aggravation and, thus, has the burden of proof and should be given a rebuttal argument.

Mr. Kohn continued:

Because the legislature has not previously addressed the issue of final argument in penalty phase, the courts have simply applied NRS 175.141 . . . The proposed legislation properly recognizes the dual burdens of proof in capital litigation, and fairly gives both sides rebuttal argument. Assembly Bill 327 also gives clear direction as to how the arguments should proceed. Nevada Revised Statutes 175.141, as it now reads, provides the state must open and close. The statute allows the state to give two closing arguments; the term “rebuttal” is not used. Currently in death penalty phases the prosecutor may, and often does, give a very short opening statement, and save all of his or her real arguments until after the defense has made its lone argument. Oftentimes, prosecutors propose issues in final argument never before raised, knowing the defense will never have an opportunity to answer or explain. Assembly Bill 327 provides that the state will argue and then the defense will argue; the state can then rebut, which means answering that which the defense has raised in its argument, and the defense can offer surrebutter to the state’s rebutter. This would contemplate that attorneys can only respond to what was pro-offered by the other side in its rebutter; neither side would be free to sandbag the other side by offering new argument in its rebutter . . .

Most major jurisdictions allow the defendant in a death penalty sentencing hearing to have the final word: California, New York, Pennsylvania, Kentucky, and South Carolina, to name a few . . . There are very few cases where arguing last is going to determine the outcome . . . But . . . I believe, in a close case, allowing the prosecution to get the first word and the last word to the jury just prior to deliberations in a penalty hearing is a tremendous advantage and it does make a difference.

Senator Care noted, according the way the bill is drafted, surrebutter is mandatory, and he asked Mr. Kohn if he can think of a circumstance in which the defendant might wish to waive surrebutter. Additionally, Senator Care said he wanted to be clear that surrebutter would be confined to anything raised by the state in rebutter; “no revisiting the evidence, no raising the sympathy factor, just strictly confined to what was raised in rebutter.” Mr. Kohn said he cannot envision a time in which the defense would not want the last word. But, he said, he has no problem with changing the word “must” in section 2, subsection 1, paragraph (c), to “may.” He added, rules of evidence state that rebutter and surrebutter should be only to the last argument, but that could be clarified in the bill also.

Ms. Waldron said she is opposed to S.B. 327. In response to Senator Care’s question, she pointed out section 1, subsection 4, of the bill, provides the court may, for good reason, permit the parties to offer evidence upon their original cause. “That opens the door to anything and everything,” she said. When she saw this bill, she said, she wondered how it squares with S.B. 234, which provides for the victim to have the last word.

SENATE BILL 234: Revises provisions governing statements of victims of crimes at sentencing hearings. (BDR 14-1079)

Ms. Waldron continued, saying, “This bill flies in the face of your passage of S.B. 234. Either you think . . . it is so important for the victim and the state to have the last word because, everyone seems to acknowledge, who does have the last word has a very important impact on the jury . . . We do have the burden of proof throughout the trial; we have the burden of proof at the penalty phase. Both sides have to prove what they are supposed to prove beyond a reasonable doubt . . . Both are at the same level of burden of proof, and to give the defendant the last word when you have passed S.B. 234, saying how important you feel it is that the victim have the last word, I think is totally inconsistent.”

Chairman James stated there is no actual conflict between the bills; it is inconsistent, not in conflict, he said. He asked if the death penalty hearing is not different from the sentencing phase. “For a capital case there is a whole big statutory scheme of circumstances and aggravating and mitigating factors that must be found and evidentiary determinations associated with them . . . Isn’t it different than just when the trial is done, and the sentence is out there . . . and the judge asks the defendant to speak and asks the victim to speak?” he asked. Ms. Waldron replied, during a death penalty case, there is nothing between the arguments and the jury’s deliberation and pronouncement of sentence. Chairman James argued, “But you talking about one that is a discretionary determination by a judge as to what sentence should be imposed; the other is a specific legal mechanism that has to take place where you have to go through a whole separate procedure to determine whether or not the death penalty being sought by the prosecution will be given.” Ms. Waldron reiterated there is nothing left for the judge to do after the jury has imposed the sentence. Chairman James said he thinks the difference is that one is a “free ranging” proceeding in which the parties speak on whatever comes to mind, whereas in the death penalty hearing there is a specific set of things in the statute, subject to specific rules, that have to be found. “That is how I see the difference between these two things and why they are not in conflict,” he said.

Ms. Waldron responded:

The only difference I see . . . is, in a non-capital case . . . the defendant will probably get up and speak for himself and maybe ramble and not say a whole lot. But, in a death penalty case . . . you have things like bringing in the baseball trophy from Little League, showing that he participated in 4-H when he was 7 years old, anything they can come up with that may or may not have anything to do with the case at hand, but is considered to be a mitigator. In fact, courts are more likely than not [sic] to restrict what a defendant does in a death penalty case because they know a defendant has to show some kind of mitigation. And, if you have had a life of crime that culminates in a death that you have caused and the state is seeking the death penalty on, you are going to be grasping at straws to show any good thing you ever did in your life to the jury; to show that you have some redeeming value, to keep you from getting the death penalty . . . The only difference is, the defendant probably will not get up and ramble; but he will certainly bring in aunts, uncles, mother, father, sisters, brothers, nursery school teacher, Sunday school teacher that he has not seen for 20 years, all to show there is some mitigation involved in this case.

Senator Porter said he is still confused about the difference between a penalty hearing and a sentencing hearing. Ms. Waldron explained, during a death penalty case, a trial is had; the jury makes its decision in the guilt phase; then the same jury sits through more evidence on aggravators and mitigators and decides on whether to impose the death penalty. She said the aggravators are specifically outlined in the statute; if the prosecution does not have at least one aggravator, it does not have a death penalty case, she said. She said the jury is sitting as a judge would in a sentencing hearing.

Chairman James asked Ms. Waldron, “What problem do you have, when the state is going to be carrying out a death sentence, why is it a problem to give the person who is the subject of that the last word . . . The reason they are allowed to bring in all those other things is because we, when we crafted the law, have said the jury shall consider any other mitigating circumstances. How they weigh it is up to them. But, the reason they are doing all that is because we have said it is relevant . . . Why shouldn’t we give someone, where we are giving them [sic] every benefit of the doubt possible because it is a death penalty, why shouldn’t we give him or her the last word? Is that such an affront to our justice system?” Ms. Waldron responded she believed it would be an affront to the victim’s family. Chairman James said the defendant has the burden of proving mitigating factors; the state is not going to bring in any mitigating factors. Ms. Waldron said, “That is correct. And, why can’t the defendant do it the way it has been done for many, many years?” Chairman James said, “Because, if the state wins, the person goes to prison for the rest of their [sic] life and never gets out; if the defendant is able to prove a mitigating factor that would give him every benefit of the doubt to do it, then if he is unable to, then he gets the death penalty . . . I actually think this is fair, because I think . . . they have a burden on those factors. And, if they are not getting the last chance to prove it, then we are not being fair in giving the death penalty.” Ms. Waldron said the impact will be significant on the jury that the defendant will somehow have the opportunity to minimize the memory of the person who is brutally murdered.

Chairman James stated:

We have had all this discussion today, and we have had all this discussion recently, and you just got done mentioning . . . this is an impact on the victims’ families. I do not agree with that. I do not agree at all that by trying to be as careful as possible in the death penalty . . . we are doing any injustice or in any way minimizing the suffering and our feeling for victims. I want to remind you and everybody else . . . this is the same committee, this is the same person, the same chairman, who in 1995 inserted into the crime bill . . . the provision that turned life without the possibility of parole in Nevada to really life without the possibility of parole. We did not have life without the possibility of parole . . . Life without the possibility of parole meant about 10 years in prison . . . in a substantial number of cases . . . All I am saying . . . is, before we should carry out this sentence . . . why not give every benefit of the doubt, every single possible benefit of the doubt that is reasonable to give, to the person who is accused of it. Then, if we do have a death penalty, we can at least think we did . . . give the benefit of the doubt. And, they do have the burden.

Ms. Waldron said she respects Chairman James’ position, but she cannot help thinking about how the victims’ families get 15 minutes to talk about the one who has been brutally murdered, and the defendant gets unlimited time. She said right now they feel slighted, and this bill would make them feel more slighted. Chairman James said, “It is usually the family of that person, and they did not do anything; so, it is just a sad situation. They are going to have somebody who is going to be executed or someone who spends the rest of his or her life in a 6-foot by 8-foot cell with an hour a day of getting to see the sky. So, it is not a good situation any way you look at it,” he said.

Senator Porter said he appreciates the comments regarding death penalty and moratoriums, but there are a lot of protections in place. It is just not right, he said, that families and victims have minimal time; he said he thinks they should be provided with the last opportunity to speak. Chairman James agreed the families and victims should have adequate time. But, he said, this has nothing to do with time. “I agree the victims need to have their point in the procedure as well, which is why I supported the constitutional amendment that was passed . . . to make sure victims in Nevada have a constitutional right to be heard in the criminal process,” he said, adding, “This committee and I [are] not going to take a second to anybody in terms of looking out for the victims of crime.” Assemblywoman Giunchigliani said the issue has been convoluted; this bill has nothing to do with negatively impacting victims’ rights.

Chairman James closed the hearing on A.B. 327. There being no further business, the meeting was adjourned at 12:40 p.m.

RESPECTFULLY SUBMITTED:

Carolyn Allfree,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: