SENATE COMMITTEE ON JUDICIARY

MINUTES OF THE

SENATE Committee on Judiciary

Seventy-First Session

March 27, 2001

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:40 a.m., on Tuesday, March 27, 2001, in Room 4100 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:

Senator Joseph M. Neal Jr., Clark County Senatorial District No. 4

Assemblyman Bernard (Bernie) Anderson, Washoe County Assembly District No. 31

STAFF MEMBERS PRESENT:

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Ann Bednarski, Committee Secretary

OTHERS PRESENT:

Ronald C. Dillehay, Ph.D., Director, Grant Sawyer Center for Justice Studies, University of Nevada, Reno

The Reverend George C. Wolf, Vicar General, Diocese of Reno

Elmer Rusco, Concerned Citizen, Nevada Coalition Against Death Penalty

The Very Reverend Robert Stoeckig, Chancellor, Diocese of Las Vegas

Lonnie L. Feemster, President, National Association for the Advancement of Colored People, Reno/Sparks Branch

Richard L. Siegel, Lobbyist, State President, American Civil Liberties Union of Nevada

Richard A. Gammick, District Attorney, Washoe County

William T. Koot, Chief, Major Violators Unit, Criminal Division, Office of the District Attorney, Clark County

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

Adrienne Angelini, Victims in Crisis, Turmoil, or Recovery; and Victory Victim’s Rights

Toni Angelini, Victims in Crisis, Turmoil, or Recovery; and Victory Victim’s Rights

Clarence Crawford, Concerned Citizen

Ron Cornell, Families of Murder Victims

Sandi Vial, Families of Murder Victims

David Mowen, Families of Murder Victims

Cindy Mowen, Families of Murder Victims

Chairman James opened the hearing on 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)

Senator Joseph M. Neal Jr., Clark County Senatorial District No. 4, testified in support of Senate Bill 254. He read from a statement (Exhibit C).

Senator Neal also submitted a binder of information regarding capital punishment entitled: ”S.B. 254 Abolishes Capital Punishment” (Exhibit D. Original is on file in the Research Library.).

Chairman James thanked Senator Neal for his remarks.

Assemblyman Bernard (Bernie) Anderson, Washoe County Assembly District No. 31, came forward and introduced himself as a cosponsor of S.B. 254 and read a prepared statement in favor of the bill (Exhibit E).

Senator McGinness asked Assemblyman Anderson whether his report of a 70 percent error rate in capital cases was accurate. Assemblyman Anderson answered affirmatively. Chairman James asked what Assemblyman Anderson’s source was for the error rate information. He replied it was taken from the report done at Columbia Law School, which stated: “The judicial system makes serious and reversible errors 70 percent of the time in capital cases.” Chairman James asked Assemblyman Anderson to clarify if he meant 70 percent of the time there is some legal error in terms of the application of the law, not a wrongful conviction. Assemblyman Anderson replied, in 70 percent of capital cases there is a reversible error causing a retrial and adding to the economic factor of these cases.

Chairman James said he spoke with Illinois Governor George Ryan who expressed concern about the erroneous conviction where a discernable, factual error occurs and the wrong person is convicted of a crime. Governor Ryan said the erroneous conviction rate was the basis for the Illinois moratorium, to insure the system was not carrying out miscarriages of justice. Governor Ryan verified the moratorium was still in place and a study was being conducted to determine if they would continue with this kind of system.

Senator Neal responded he did not know the content of the Illinois study but he did know the state of Illinois is considering continuation of their system. He said death is final; therefore, no correction is possible after the fact.

Chairman James asked if the State of Nevada has numbers comparable to those of Illinois, in terms of wrongful executions. Senator Neal said he believed there were two, or possibly three people, erroneously convicted and placed on death row; he said one or two were exonerated of their crime.

Senator Porter stated Nevada Attorney General Frankie Sue Del Papa sent a statement to legislators regarding the death penalty.

Assemblyman Anderson said the question of deoxyribonucleic acid (DNA) evidence would be examined during the testimony presented. He said DNA evidence has opened a new envelope of information affecting wrongfully accused people on death row. He added there is public support for the death penalty; there is no public support for killing an innocent person. He felt the costliness of the capital punishment system could be attributed to efforts to avoid execution of anyone wrongly accused. Assemblyman Anderson said in Nevada the only people who are being executed are those who really want to be put to death and are “going out of their way” to be executed. Continuing on the cost factor, he said, “If you are poor, you will not get adequate defense.” This leads to expensive retrials but, he cautioned, if a person did not accept the help offered to him, he would be executed.

Chairman James directed his discussion toward racial and social-economic bias. He mentioned the lack of competent counsel for capital cases causes wrongful convictions or reversible error. He said he understands the death penalty is an irreversible punishment, and added it is difficult to give life back to someone who has spent substantial time in prison erroneously. Chairman James stated if these death sentences are caused by racial bias resulting in inadequate representation or erroneous criminal convictions, the committee should focus on those issues. Those problems, he said, should be our main consideration in outlawing the death penalty. Chairman James said he is aware of studies regarding racial or socio-economic bias in the criminal justice system, one of which was chaired by defense attorneys. Chairman James asked Senator Neal to provide any results of these studies one of which was commissioned by the U.S. Supreme Court.

Senator Neal said there are 92 people on death row: 51 percent are minorities, and of those, nearly 40 percent are black, 1 percent is Asian, and the remainder is Hispanic. He said when the issue of abolishing the death penalty was first considered, years ago, the minority number was different, but what was and continues to be the same is the socio-economic level or the poorness of defendants.

Chairman James continued to focus on the morality and injustice of a system imposing the death penalty in a racially and socio-economic-biased manner. He explained incarcerating people for life is the second greatest manifestation of injustice the state has the power to enforce. Chairman James said enacting this legislation takes away the death penalty and replaces it with a life sentence without parole. Some, he continued, would argue life imprisonment is worse and more serious than the death sentence. He went on to describe a lifetime in a 6’ by 8’ cell, with a mere hour a day outside, seems inhumane, and if racial bias is common here, too, then something is seriously wrong with our criminal justice system and must be addressed.

Senator Neal stated examination of not only those on death row but also a look at their victims will reveal there is not a single white man on death row for killing a black person. Conversely, if the victim is a white person killed by a black man, the black man is “more likely to get the death penalty.” He said the racial issue is made more grievous when the victim is white and the perpetrator of the crime is black, Asian, or Hispanic.

Chairman James asked Senator Neal if the system reserves capital punishment for those types of crimes. Specifically, if the perpetrator is white, is he removed from the possibility of a death sentence? Senator Neal answered, “That’s what it seems to be.” Chairman James requested statistics to support his claim, but then verified those numbers were in the binder of information submitted by Senator Neal (Exhibit D).

Senator Neal introduced Ronald C. Dillehay, Ph.D., Director, Grant Sawyer Center for Justice Studies, University of Nevada, Reno, brought a slide presentation which was originally prepared for a forum at the National Judicial College moderated by Judge Robert Payant. He presented a written description of the content of his presentation, which he said was a history and current status of the death penalty (Exhibit F). He announced he was representing himself at this hearing.

Dr. Dillehay began his testimony saying people who live in states with a death- penalty statute are often surprised to learn there are states without such a law. Currently, 12 states do not have capital punishment. Chairman James asked whether any state had repealed the death penalty since its reenactment subsequent to the 1972 U.S. Supreme Court case, Furman v. Georgia. Dr. Dillehay replied some of these 12 states did not have capital punishment before 1972; and none have repealed it since then. Chairman James verified if Nevada abolishes the death penalty, it would be the first state to take this action. Dr. Dillehay responded, several states are considering abolishing capital punishment but none have taken action, to date.

Continuing, Dr. Dillehay said the states with the highest numbers of prisoners on death row are lead by California with 551, then Texas with 458, followed by Florida with 393, and the federal prisons with 21. There are a total of 3625 death-row inmates awaiting execution in the United States. Dr. Dillehay projected slides showing the numbers of executions performed, with racial and state breakdowns, and other statistics from 1976, when the U.S. Supreme Court approved new methods of execution (Exhibit F).

Chairman James asked whether the popularity, or lack of it, for the death penalty correlates with the crime rate; he observed as the crime rate goes down, people are not concerned about the death penalty, and when crime goes up, such as in 1995, public concern increases. Dr. Dillehay replied interest in the death penalty also gets attention when it is used as a campaign issue and platforms of candidates include crime rate statistics. He said he felt when people are given an alternative to the death penalty for criminal punishment, such as life imprisonment with no chance of parole, the support for capital punishment decreases substantially. He referred to his slides (Exhibit F).

Senator Porter said a lot of time is spent listening to the families of victims of murder, and other heinous crimes, and asked if there is a study on these people and their feelings about the death penalty. Dr. Dillehay said he does not believe there has been a study related to victims’ families and the death penalty. He claimed he has been a researcher and a consultant on capital cases for 20 years and said families of victims want closure, not vengeance. Senator Porter said, most people polled have not experienced this kind of loss through crime of a loved one, but he was interested in their position on capital punishment. He explained the committee shares their pain and loss, and tries to craft legislation sensitive to them.

Senator Washington said the fundamental question is, “Has the death penalty become a deterrent to heinous crime?” Dr. Dillehay said this question has been studied for 30 years and the conclusion is that capital punishment is not a deterrent to crime. Senator Washington asked, if the death penalty is not a deterrent, is a “life with no possibility of parole” sentence something feared enough to be an inhibitor of criminal behavior? Dr. Dillehay answered he is not aware of any research on the subject. Then, Senator Washington queried, if the death penalty is not a deterrent, why would life without parole be a deterrent? He said both punishments do not seem to affect the commission of heinous crimes. Dr. Dillehay said he suspected neither are deterrents, because, usually, if the decision to commit the crime is rational, then the outcomes are weighed and evaluated. He reasoned a rational person would likely view the life imprisonment penalty as a deterrent to the act. Dr. Dillehay added if the decision to commit a serious crime is irrational, the punishment, either the death penalty or life imprisonment, is also irrationally construed.

Dr. Dillehay next explained the U.S. Supreme Court’s decision regarding judges and jurors. He said the jury decides the fate of the defendant, and anyone who is assessed to be incapable of voting for a death penalty, no matter what the circumstances, is not permitted to serve on a jury in capital cases. Such jurors, he said, are easily identifiable and categorized; likewise, he explained, those who would always vote for a death penalty are also excused from capital cases; however, this type of person is not easily identified during jury selection. The reason, he said, is often the wrong questions are asked during voir dire (preliminary examination to determine the competency of a juror); another reason is the decision is not categorical, but is based on the facts and circumstances of the crime. He added he believed there were fundamental problems with the process of jury selection, including the assessment by the judge of what he perceives as the jurors’ attitudes on the death penalty before the trial begins. Another is the impaneling of an impartial jury to decide the guilt and also the punishment because, he said, in capital cases voir dire is very limiting. Judges are then responsible for instructing jurors before they deliberate. He explained, often the judge’s complex instructions to the jury are too difficult for jurors to comprehend (Exhibit F). Because of the complexities, and the requirements for review and appeal, Dr. Dillehay said, capital crime procedures are long and often laden with error. He concluded his presentation saying the criminal justice system is aware of inherent problems and is trying to improve all aspects of capital litigation.

Senator Neal introduced The Reverend George C. Wolf, Vicar General, the Roman Catholic Diocese of Reno, who stated he speaks not only on behalf of The Most Reverend Bishop Phillip Straling, Diocese of Reno, but also to share his own feelings on capital punishment. Father Wolf said Bishop Straling has been very vocal in support of victims and the rights of victims, and against capital punishment. He acknowledged Senator Neal’s courage in bringing forth this bill for debate. He expressed the Catholic Church once supported capital punishment and read a statement prepared in 1997 (Exhibit G).

Father Wolf continued to expound on the current position of the Catholic Church. He made reference to Senator Washington’s remarks about a “life without possibility of parole” sentence as an alternative to death for the offender. Father Wolf said in cases of absolute necessity, which, he added, are very rare, if not practically non-existent, life in prison would suppress the criminal. He reported Pope John Paul II in 1999 said, “I renew the appeal for a consensus to end the death penalty which is both cruel and unnecessary.” He concluded his comments by reading a prayer written by Sister Helen Prejean (Exhibit H), author of Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States, which, Father Wolf added, was made into a movie. Father Wolf stated he is in full support of Senator Neal’s bill, S.B. 254, and appreciated the opportunity to speak.

The next speaker in favor of S.B. 254 was Elmer Rusco, Concerned Citizen, and Nevada Coalition Against the Death Penalty, who described himself as a retired professor active in civil liberties issues. He submitted his written support of the bill (Exhibit I). He said there is a national group, Murder Victims’ Families for Reconciliation, which actively works against the death penalty. In addition, there is a national movement, organized by Sister Helen Prejean, which invites people to sign a notarized declaration stating, should they be a murder victim, they do not want the perpetrator murdered. Mr. Rusco said he has signed this document. He concluded his comments endorsing Senate Bill 254 for the social action committee of the Unitarian Universal Fellowship of Northern Nevada and for the Nevada Coalition Against the Death Penalty.

Senator Neal asked Chairman James to hear The Very Reverend Robert Stoeckig, Chancellor, the Roman Catholic Diocese of Las Vegas. Father Stoeckig opened his remarks with support for Senate Bill 254. He said the Catholic Bishops (United States Conference of Catholic Bishops) of the United States have called for an end to the death penalty for more than 25 years. “Sadly,” he added, “death sentences and executions in this country continue at an increasing rate.” Father Stoeckig said many people still support the death penalty and he hopes soon they will come to see “more violence is not the answer.” He said the church seeks to educate and persuade our fellow citizens that this penalty is often applied unfairly and in racially biased ways. He cited the study, “The Death Penalty in Black & White, Who Lives, Who Dies, Who Decides,” June 1998, as referenced by the Administrative Board of the United States Conference of Catholic Bishops in its “A Good Friday Appeal to End the Death Penalty” of April 1,1999 (Exhibit J). Reverend Stoeckig stated the Catholic Church stands in opposition to state laws permitting capital punishment, including the bloodless method of capital punishment available in Nevada. Continuing, he said, “Since the death penalty deprives the criminal of life, it cannot lead to the type of rehabilitation allowing the offender, even if incarcerated . . . to participate in the community of human persons.”

Father Stoeckig commented the test of every public policy is whether it enhances or threatens human life and dignity, and, therefore, demands great scrutiny. He said shattering pain comes with violent crime and who mourn as a community all who have lost loved ones through violent acts. Father Stoeckig noted the church asks all people to support acts of reconciliation between victims of tragic crime and criminal offenders. Continuing, he explained, they can share the experience of forgiveness and understand the meaning of “love your neighbor as yourself.”

Father Stoeckig concluded with a quote from the American Bishops’ Letter entitled, “Living a Gospel of Life, Challenge to American Catholics”: “Our witness to respect for life shines most brightly when we demand respect for each and every human life including the lives of those who fail to show love and respect for others. The antidote to violence is love, not more violence.” He added, we oppose capital punishment not just for what it does to those guilty of horrible crimes, but for what it does to all of us as a society. Father Stoeckig stated as reliance on the death penalty increases, it diminishes all of us, as it is a sign of growing disrespect for human life. He urged passage of S.B. 254 stating, we cannot defend life by taking life.

The next speaker in support of S.B. 254 was Lonnie L. Feemster, President, National Association for the Advancement of Colored People (NAACP), Reno/Sparks Branch. Mr. Feemster stated he has said for years, ”If you put the button or switch by my nightstand, I’ll push it or set ‘em in the chair, put the needle in their arm or . . . put ‘em in the gas chamber.” He explained he had to reconcile those attitudes and forced himself to examine the other side of the capital punishment issue from spiritual, moral, and material levels. Mr. Feemster said the material portion was not difficult to resolve, but he had some problems on the spiritual and moral aspects. He said the death penalty circumvents the will of God. Mr. Feemster added life in prison without possibility of parole, which means dying imprisoned, is a more appropriate sentence, because it allows opportunity to correct some of the disparities in our criminal justice system. Mr. Feemster cited a statistic from the Washington Bureau of the NAACP, “African Americans are disproportionately over-represented among those who have been sentenced to death and later found innocent.” He said 38 percent of death row inmates freed since 1973, because of new evidence, were African Americans and 35 percent of those executed and later found innocent were also black. Mr. Feemster added he believed this statistic would also be valid with low income and low social levels in other ethnic minority groups. Spiritually and morally, he said, the human desire to seek revenge is what drove his initial position, but the courage to examine the other side has made him spiritually and morally right in his heart.

Richard L. Siegel, Lobbyist, State President, American Civil Liberties Union of Nevada, said he had three points to make: First, every European country has an obligation to the Council of Europe to abolish the death penalty within the next 3 years. Second, Las Vegas stands as a target for future negative publicity, image-busting, and potential boycott over the present laws in Nevada with respect to the death penalty. Mr. Siegel explained when foreign citizens, 16- to 17-year-olds, or mentally retarded people are principals in death penalty cases, Las Vegas is “walking into a boycott.” Third, Nevada has the least efficient death penalty operation in the United States. He stated Wyoming and Nevada have the highest rate of death sentences per homicide. To date, he added, Nevada has not carried out a nonconsensual death penalty. Mr. Siegel said the reason is our electoral politics give us a prosecutorial style, which, he explained, is a “push the envelope” prosecutorial style in death penalties. Mr. Siegel said Nevada has the most liberal federal circuit court, which ultimately hears these capital cases. Mr. Siegel pronounced, “The reason we do not have an effective death penalty is because we have this extraordinary clash between our ‘push the envelope’ prosecutorial style and our federal circuit court, so we are wasting $2 million and more on 92 people, most of whom will never get executed.”

Richard A. Gammick, District Attorney, Washoe County, opened his remarks by stating, in a civilized society the death penalty is a necessary part of our judicial system and needs to remain in the system. He said he had personally prosecuted seven death penalty cases, which resulted in three men sentenced to death row. He explained a jury must find the defendant guilty beyond any shadow of a doubt. Mr. Gammick said the jury is selected after they are canvassed on their beliefs regarding not only the crime in question, but also the possibility of a death sentence. He added jurors must meet all the requirements handed down by the U.S. Supreme Court and the Nevada Supreme Court. Mr. Gammick explained the defense attorneys as well as the prosecuting attorneys select jury members, but the court must approve of the jury chosen. There are two phases to a first-degree murder case, he said, a conviction phase and a penalty phase. Mr. Gammick noted 1 of 14 statutorily determined conditions of the act or aggravating circumstances must be proven. He stated when this is accomplished the defense attorney presents mitigation. Mr. Gammick stressed, “A jury in the state of Nevada is never, never required to give the death penalty under any circumstances.” Those 92 people sitting on death row today, he continued, are there because a jury of 12 people had unanimously voted to sentence them to death, based on their conduct and actions. Regarding the prosecutorial attitude of the State of Nevada, Mr. Gammick said prosecutors do go after people whose crimes qualify for the death penalty, and the case is handled by professionals, including prosecuting attorneys, appellate people, law enforcement officers, and mitigation experts, who examine the facts to determine the crime committed is severe enough to warrant seeking the death penalty. The decision, however, to sentence a person to death is made by the jury.

Mr. Gammick addressed the victims of violent crimes and their families. He said most want closure. He said the system is broken because inmates sit on death row for an average of 20 years, although there has been progress made in taking less time to conduct executions recently. He next mentioned the “Columbia Reports,” (study by James S. Liebman of Columbia School of Law entitled, A Broken system: Error Rates in Capital Cases, 1993-1995, published June 2000) describing it as, ”fraught with problems.” He expounded it does not answer questions, and although the bare statistics appear to have some racial disharmony, to assume there is bias based only on these numbers is totally inappropriate. Rather, he suggested, the why and how of the alleged offenders’ upbringing and their crimes need to be examined.

Mr. Gammick’s next point was regarding the procedures required in capital cases, first mentioning the automatic appeal of the death sentence to the Nevada Supreme Court. Then, he said, Mr. Sarnowski from the attorney general’s office gets involved, because federal law requires these convictions be examined, time and again. These procedures, he said, are mandated despite Nevada’s liberal Circuit Court of Appeals. Next, he clarified there are “no unlimited powers of the state.” This, he said, is verified by looking at Nevada Revised Statutes (NRS) and the procedures required in case law, which shows power is not without limit. Mr. Gammick mentioned the number of cases where the decision was reversed. He stated the “Columbia Report” is “very shallow”; it fails to mention the reasons for a dismissal of a death sentence. Notwithstanding, prosecutors make errors, as do defense attorneys, and the courts, he said.

Mr. Gammick gave as an example a case which was reversed because the defense attorney failed to tell the jury the defendant was formerly a Cub Scout. He said another problem with the system is the rules continually change, and when a sentence is 20 years old and the process continues, should a reason to dismiss the sentence be established, it is usually a procedural issue. Rarely, he added, is a death penalty reversed because the defendant did not do it. Sometimes, he concluded, we have to accept the realization some people are “just ‘flat’ bad; some people deserve the death penalty, and it’s the right thing to do.”

Senator Titus referred to Mr. Rusco’s statement about Nevada’s DNA law being different from the rest of the country, and asked Mr. Gammick to comment on the DNA issue. She said she thought there was a bill in the Assembly dealing with DNA testing. Senator Titus said she wondered whether they should attempt to strengthen those DNA laws, because it was unfair to discount possible evidence to clear someone, especially if a person is poor. Senator Titus suggested the state should routinely pay for DNA testing.

Mr. Gammick responded he was not aware of anything currently preventing a defendant from filing a motion with the court for testing. He said, as recently as yesterday, a DNA test was requested. Mr. Gammick added if such testing is relevant to the case, the court will hear the motion and decide to order it; therefore, there is nothing preventing testing. He said some states make DNA testing mandatory on cases where samples are available to be tested, although it is an expensive process; therefore, he added, DNA testing should be relevant to the issues of the case. Senator Titus asked about the fairness of the prosecution to decide the relevance of testing. Mr. Gammick said the prosecutor does not decide; the judge decides.

Senator Titus asked Chairman James to get a report on the Assembly bill and look at it. He agreed to do so.

William T. Koot, Chief, Major Violator’s Unit, Criminal Division, Office of the District Attorney, Clark County, spoke in opposition to Senate Bill 254 stating Mr. Gammick had addressed most of the points of his planned testimony; therefore, his comments would be brief. He said he had personally prosecuted several individuals and obtained death sentences. His cases all involved multiple killings. Mr. Koot described our justice system as one of graduated punishment. He said the question, which must be asked, is: If there is a sentence of life imprisonment without parole, then how would a person who commits multiple murders be punished? Mr. Koot said the multiple-victims killers he prosecuted have all received the death penalty. His question was: Is life imprisonment without parole, the sentence for those who kill one person, enough for those who kill many? Mr. Koot made reference to Columbine High School and the Oklahoma City massacre at the federal building and asked whether those perpetrators should receive the same penalty as those who kill one person. He pondered whether the most heinous criminals, who have killed many individuals, are not deserving of the death penalty. He said once his office considered preparing biographies with photographs of the accused and of their victims to present to the public for them to decide if the perpetrators deserved the death penalty.

He said the Nevada Supreme Court is required to examine any case in which the death penalty is the verdict of the jury, and to determine if the death sentence is a fair one. As an example, he gave a synopsis of a case where someone in a carjacking attempted to kill the driver, who was a former New York Police Officer, and was given the death penalty. The U.S. Supreme Court reduced his sentence to life without parole, because it was within their power. As an aside, he said, this defendant happened to be an African American. Mr. Koot listed the safeguards, which accompany death sentences, including the pardons board, the federal appellate court, and the mandatory appeal process. He indicated there are enough existing protections in the system to assure the wrong person is not executed erroneously. He used an example of a prisoner who is about to come before the pardons board after 19 years in the appellate process, stating the defendant’s intelligence quotient (IQ) is the issue.

Regarding racial overtones and bias as it relates to the death penalty, Mr. Koot said, people eligible for the death penalty are not chosen by race. He claimed, in 30 years of prosecuting cases, he has not seen any evidence of race as criteria for death penalty eligibility. He asked to view the empirical studies demonstrating evidence of racial bias. He said the study by the U.S. Department of Justice tells us young, black males are eight times more likely to commit homicide than Caucasians. Therefore, he continued, if a group of people is committing a disproportionate number of homicides, the only crime for which the death penalty can be considered, then obviously, there is a higher incidence of the death penalty eligibility in that group. He reiterated he does not see race as an issue at all in the capital punishment issue.

Mr. Koot explained how the determination is made for eligibility for the death penalty. First, he said, there is a committee of seven people in the prosecutor’s office determining if there are aggravating circumstances as defined by statute, and if found, the committee files a notice of intent to seek the death penalty. Mr. Koot said in 5 years we have discussed approximately five cases per year. This process, he said, is followed by sharing with the defense counsel any mitigating circumstances, and then they wait until after the preliminary hearing for more discovery and investigation of other facts about the case. Ultimately, he added, it is up to the jury to decide. Mr. Koot said he felt the process in the state is eminently fair, and saw no empirical evidence for abolishing the death penalty. He added he agreed with Chairman James, this is a moral issue and not a legal one. Mr. Koot said he was a Catholic, but believed in the death penalty even though the Catholic Church is against it; his sister, for example, is a nun and against the death penalty. He said he did not feel the church’s position was firmly believed in by all Catholics.

Chairman James asked Mr. Koot, in his experience, when a defendant is of a racial minority, what percentage of the time is the jury racially mixed? Mr. Koot responded juries are “almost always” racially mixed. He said most judges do not allow attorneys to challenge African Americans from the panel in jury selection. He added, in most cases, African Americans want to be removed from jury duty. Chairman James asked about the instructions given to juries, specifically, their ability to understand and comprehend them. He explained the issue of racial bias is bothersome to him, and he would like to investigate the issue further, and also, examine the federal study. Mr. Koot explained, in both the conviction and penalty phases of the trial, the decision of the jury must be unanimous. One aggravating circumstance, as defined in statute, is the requirement to be found “guilty beyond a reasonable doubt” by all 12 jurors. He continued, the aggravating circumstances must outweigh the mitigating circumstances beyond a reasonable doubt, or the possibility of the death penalty is dropped. The result of this, Mr. Koot said, is everyone on death row has met this standard of the law.

David F. Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, said the attorney general’s office opposes S.B. 254. The basis of its opposition is it does not take into account fair and just punishment and specific deterrents for the most serious crimes and offenders, such as: mass murderers, serial killers, police killers, and those who have killed previously. He submitted a monthly report on the status of those on death row (Exhibit K) and stated he would compare these statistics anytime with any number of auditors, to the Columbia Law School study by Professor James Liebman. Mr. Sarnowski claimed Professor Liebman and his coauthors have been asked numerous times for their underlying data. “They refuse, and unless we agree not to share the information with others, which,” Mr. Sarnowski said he believes, “casts doubt on the validity of the Columbia findings.”

Mr. Sarnowski then gave an accounting of prosecuting a white inmate who killed a black victim while incarcerated at the Nevada State Prison. He said the white man was selected for capital punishment eligibility because he had murdered a very elderly man in Nevada after he had killed an unconscious man in Florida. His history in prison included the stabbing of a correctional officer; additionally, he was found with weapons on two other occasions. Mr. Sarnowski used this example to disprove the claim a white person is not given the death penalty for murdering a black person. He gave an accounting of what he called Nevada’s most notorious death row inmate in modern times, Jimmy Neuschafer. Mr. Neuschafer was sentenced to death after Ernest Adler, a former member of the legislature, had prosecuted him for the murder of a black inmate. The inmate was murdered while Mr. Neuschafer was serving a life-imprisonment sentence for killing two girls in Carson City, because, at the time of sentencing for those murders, the death penalty was not allowed. Mr. Sarnowski reported Mr. Neuschafer died of natural causes but, at the time, was on death row.

“No one,” Mr. Sarnowski said, “is more frustrated with the pace of the system of reviewing Nevada cases than me . . .” The solution, he suggested, is not to give up because the “most liberal circuit court in the United States” has a penchant to reverse death sentences, but rather for the court to make correct decisions. He then said, approximately two or three terms ago, the circuit court’s decisions were reversed 26 out of 27 times by the United States Supreme Court. Chairman James asked for clarification about the crimes involved in the reversed decisions. Mr. Sarnowski answered there were various crimes which did include death penalty decisions. He said it was unfortunate the Ninth Circuit Court of Appeals is often the last word for Nevada death penalty cases.

Mr. Sarnowski continued Nevada has executed eight men since 1977, the year the death penalty law was enacted. He said seven of those executed were “volunteers”; therefore, the statement about involuntary execution is untrue. Mr. Sarnowski told the committee he was the prosecutor against Richard Moran before the U.S. Supreme Court in 1983. He reported Mr. Moran had a battery of lawyers from the federal public defender’s office and did not give up his fight for freedom until 24 hours before his execution. He summarized his comments by echoing the editorial which appeared in the Nevada Appeal today against Senate Bill 254, quoting:

The arguments tend to come down on all sides except the victims’. We can’t shake the ultimate conclusion that for some crimes, any punishment short of death is insufficient, not out of revenge, not necessarily for the sake of deterrents, simply for justice. It’s something a society has to be willing to do and able to do if the circumstances require it.

He then referred the judiciary committee to a website, prodeathpenalty.com, as a source for statistical information. He quoted Alphonse Carr (circa 1800s), “If we are to abolish the death penalty I should like to see the first step taken by my friends, the murderers.”

Mr. Sarnowski offered to answer any questions; then, he said he would provide Senator Porter information regarding the racial makeup of perpetrators and their victims on Nevada’s death row. He added cataloguing of racial information is provided the Legal Defense Fund, an anti-capital punishment group. Mr. Sarnowski told Senator Titus he would discuss the DNA issue and the bill in the Assembly.

Chairman James questioned the perception of Nevada’s death penalty as being a form of assisted suicide, explaining a person on death row must give up the appeals before the state executes him. He said currently 88 people are on death row, and 8 have been put to death, so then in reality, they are serving life sentences. Mr. Sarnowski said the public might perceive an execution as an assisted suicide; but the wait involved before execution is not from a lack of trying to move these cases along. He said the circuit court takes a lot of time, and the delays come in the decision-making process. Mr. Sarnowski commended the Nevada Supreme Court for the expedience with which they handle cases.

Chairman James asked if the Fifth Circuit Court of Appeals was much more conservative, because, in Texas, 244 executions have occurred since 1977, versus 8 in Nevada. He added, Texas is a bigger state, but considering the number of executions over the last 5 years, “If you believe in the death penalty, Texas is the place to live. They carry it out there. It is a real sentence.” Mr. Sarnowski responded Texas is unique to all other states in their methods of assessments at the time of a jury trial. They do not have the same system, he said, in terms of aggravating and mitigating circumstances. He added, “They don’t have to live with the ninth circuit and how it makes decisions.” Mr. Sarnowski said Nevada enacted a statute in 1977, which is uniquely Nevada’s, and the prosecutors try to make it work.

Chairman James then asked for the Families of Murder Victims to come forward and testify.

Adrienne Angelini, Victims in Crisis, Turmoil, or Recovery, and Victory Victim’s Rights, expressed her feelings about the death penalty stating, “If someone takes a life and the crime meets the criteria of the death penalty, then the person should receive the sentence.” She said to remember the person has committed a terrible crime regardless of age, race, or gender. Ms. Angelini said:

If someone commits this kind of offense, they should be put to death. I am really, strongly in favor of the death penalty. My father was shot to death in a robbery and, unfortunately, his killer is serving life without the possibility of parole, and it is not good enough for us. We wish it were the death penalty.

Continuing, Ms. Angelini said, if all the death penalties were commuted to life without parole sentences, how would the families be guaranteed the sentences would remain life imprisonment sentences; she questioned whether the sentence would get changed again because of overcrowding, and put “those monsters back on the street.” Ms. Angelini said her sister had some thoughts to share with the committee.

Toni Angelini, Victims in Crisis, Turmoil, or Recovery, and Victory Victim’s Rights, said she did not feel life without parole was good enough. She stated she has checked with the Ely State Prison regularly and her father’s killer is reported to be well-fed, exercising, getting computer time, and she added, “He has the audacity to place personal ads saying, ‘Lonely inmate in great shape, needing a pen pal.’” Ms. Angelini said when she went to the hospital the morning her father was shot she had never seen gunshot wounds before. She continued today, 10 years later, she could close her eyes and still see the horror of what she saw after the shooting. Her three children were the first grandchildren in the family; and her son, the first grandchild, is graduating from college with honors. He recently said, “My papa should be here to see this.” She described her father’s murderer as a white, 42-year-old male, which she noted validates her belief race is not an issue in death penalty sentencing. Next, she said, the appeal system goes on for a long time. She said her father’s killer is currently in the third appeal stage. The Angelini family gets notified of appeals and continues to live through this tragedy time and time again.

Clarence Crawford, Concerned Citizen, stated his wife, his daughter, and he have been through this tragedy. He agreed with the Angelini sisters, a life- without-parole sentence is not adequate. He said if someone could guarantee a life-without-parole sentence would not be challenged, and subsequently changed, because it is considered cruel and unjust punishment, he would probably accept it. But, he said, there are no guarantees, and if the death penalty can be withdrawn, the next thing withdrawn will be the life-without-parole sentence. Mr. Crawford said he felt the death penalty system was good on paper and we should make it work. The problems and mistakes, he said, come from judges, the prosecutors and the appeals system. He said he believed the attorney general had some ideas about changing the procedures to make them more efficient, and urged, before the death penalty is cast aside, these efficiency-related procedural changes be explored. He continued the reason the death penalty is not a deterrent is because it is not carried out, leaving people on death row for long periods of time. He felt criminals are going to commit their crimes anyway because the penalties are not enforced, so offenders are not concerned about penalties.

Mr. Crawford said there is some part of him he feels is a desire for revenge, directed towards his daughter’s killer, but it is a small part compared to his desire to see justice done. He said the State of Nevada decided on a death penalty. He concurred with Mr. Sarnowski’s points about “getting things done right” in a capital crime trial. Mr. Crawford stated he and his family witnessed the execution of his daughter’s killer, and he said, “There was no celebration, no joy, no vengeance, it was just poof, all of a sudden this part of our journey is over.” He continued the Crawford family was fortunate the killer of their daughter went to prison and was executed within 5½ years, and added they were also fortunate to be able to bypass the Ninth Circuit Court of Appeals. He felt, had this case gone to the court of appeals, his daughter’s killer would “still be being fed by the citizens of this state.” Mr. Crawford said it is “reversed” thinking when people say the death penalty does not deter crime, and he did not agree with it. He said, “You make the penalty work.”

Mr. Crawford related the ordeal of going from court to court to court, four separate times, with the same argument from the defense and the pain of reliving this crime each time in court. He said the slow pace of the system costs taxpayers thousands and thousands of dollars. He reiterated the need to make the system work. Mr. Crawford added if DNA testing was done routinely, he thinks there would be fewer mistakes. He said he realizes there have been some errors with this testing. And, he suggested, “If the DNA matches, get on with the execution.”

Chairman James thanked the Crawfords for coming and apologized for a shortage of time and then asked those in Las Vegas to testify.

Mr. Ron Cornell, Families of Murder Victims, began his testimony showing a picture of his son, Joey, saying, “I’ve got his picture here with me because the only thing I have is his memory.” Joey, he said, was shot in the back and killed by a 37-year-old man. Unfortunately, he added, this crime is not a capital case, but it should be. He reasoned, if someone intentionally takes another’s life, his life should be taken. Mr. Cornell said instead of S.B. 254 addressing abolishing the death penalty, there should be a strengthening of carrying out the sentence. He said the state is too lenient; therefore, punishment is not a deterrent.

Sandy Vial, Families of Murder Victims, announced she had come to speak against the repeal of the death penalty. She said her son, Tracey Gorringe, was murdered on August 14, 1998, one of four young men murdered by three young black men. There were three trials and four penalty phases; only one of the murderers was sentenced to death; the other two murderers were sentenced to life without parole, she explained. Ms. Vial said, “I never thought much about the death penalty, but after this happened to my family, I have a strong opinion: the harshest penalty should be imposed for the most heinous crimes.” She said the pro-death penalty website was very informative and she found a quote by John McAdams of Marquette University:

If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers and doing so would have in fact deterred other murderers, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. To me, this is not a tough call.

Ms. Vial said she also found statistics reporting the expected punishment for murder was 1.5 years in 1985 and rose to only 2.7 years in 1995. The expected punishment, she explained, is calculated by measuring the probability of being caught, actually incarcerated, and the time served. She asked, “Why have we chosen to be so generous to murderers and so contemptuous of the human rights . . . of victims and future victims?” Ms. Vial said the death penalty does not punish people for killing, but rather, for murder. Killing, she expounded, is justified when done in self-defense. “Killing means to cause death. Murder is the unlawful and malicious or premeditated killing of one human being by another. Kill and murder are not interchangeable terms,” Ms. Vial said. She concluded her remarks stating, “We should impose the death penalty for the most heinous crimes.”

Dave Mowen, Families of Murder Victims, said he spent 10 years of his life as a volunteer emergency medical technician (EMT) and as fireman in Iowa, a state without the death penalty, and as a fireman, saved the lives of people in need. Mr. Mowen said from his experience, as he watched agony, grief, and pain in the faces of those he encountered in Iowa, he thought he understood how it felt to lose a child. “Then,” he explained, “on August 14, 1998, I lived it myself. I pray you never do. It’s been 956 days that I have been living in this hell . . .” He said he will do everything he can to make our death penalty laws effective, because the current penalty of 10, 15 or 20 years is not an effective deterrent. He urged the state to carry out executions.

Cindy Mowen, Families of Murder Victims, said she has heard people ask her to forgive and to love the person who murdered her child. Others, she said, say they have the figures and they understand, but they do not know what it is like to sit in a courtroom and see lifeless pictures of your bloodied child. Mrs. Mowen said her child’s murder was a heinous crime and part of a quadruple murder committed by a man who had murdered before and continues to threaten to murder others. The punishment, she said, must fit the crime. “We must not do away with this punishment,” she concluded.

Chairman James closed the hearing on Senate Bill 254.

Senator Porter said he wished to make a point of telling families of victims how important their testimony was and assured them it will be considered in future discussions of the bill.

Chairman James adjourned the meeting at 11:03 a.m.

RESPECTFULLY SUBMITTED:

Ann Bednarski,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: