Assembly Bill No. 354–Assemblymen Price, Brown,
Chowning and Manendo

 

March 14, 2001

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Provides for genetic marker analysis of certain evidence related to conviction of certain offenders sentenced to death. (BDR 14‑595)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: Contains Appropriation not included in Executive Budget.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to crimes; providing for genetic marker analysis of certain evidence relating to the conviction of certain offenders who have been sentenced to death; providing for a stay of execution pending the results of the analysis; making an appropriation; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 176 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2 and 3 of this act.

1-3    Sec. 2.  1.  A person convicted of a crime and under sentence of

1-4  death who meets the requirements of this section may file a post-

1-5  conviction petition requesting a genetic marker analysis of evidence

1-6  within the possession or custody of the state which may contain genetic

1-7  marker information relating to the investigation or prosecution that

1-8  resulted in the judgment of conviction and sentence of death. The

1-9  petition must include the date upon which execution is scheduled, if it

1-10  has been scheduled.

1-11    2.  Such a petition must be filed with the clerk of the district court for

1-12  the county in which the petitioner was convicted on a form prescribed by

1-13  the department of prisons. A copy of the petition must be served by

1-14  registered mail upon:

1-15    (a) The attorney general; and

1-16    (b) The district attorney in the county in which the petitioner was

1-17  convicted.

1-18    3.  If a petition is filed pursuant to this section, the court shall

1-19  immediately issue an order requiring, during the pendency of the

1-20  proceeding, the prosecuting attorney to preserve all evidence within the

2-1  possession or custody of the state that may be subjected to genetic marker

2-2  analysis pursuant to this section.

2-3    4.  Within 30 days after receiving notice of a petition pursuant to this

2-4  section, the prosecuting attorney:

2-5    (a) Shall prepare an inventory of the evidence within the possession or

2-6  custody of the state that may be subjected to analysis pursuant to this

2-7  section;

2-8    (b) Shall submit a copy of the inventory to the petitioner and the

2-9  court; and

2-10    (c) May file a written response to the petition.

2-11    5.  The court, in its sole discretion, may order a hearing on the

2-12  petition.

2-13    6.  The court shall order a genetic marker analysis if the court finds

2-14  that:

2-15    (a) A reasonable probability exists that the petitioner would not have

2-16  been prosecuted or convicted if exculpatory results had been obtained

2-17  through a genetic marker analysis of the evidence identified in the

2-18  petition;

2-19    (b) The evidence to be analyzed exists and is in a condition that allows

2-20  genetic marker analysis to be conducted as requested in the petition; and

2-21    (c) The evidence was not previously subjected to:

2-22      (1) A genetic marker analysis involving the petitioner; or

2-23      (2) The method of analysis requested in the petition, and the

2-24  method of additional analysis may resolve an issue not resolved by a

2-25  previous analysis.

2-26    7.  If the court orders a genetic marker analysis pursuant to

2-27  subsection 6, the court shall:

2-28    (a) Order the analysis to be promptly conducted under reasonable

2-29  conditions designed to protect the interest of the state in the integrity of

2-30  the evidence and the analysis process.

2-31    (b) Select a forensic laboratory to conduct or oversee the analysis. The

2-32  forensic laboratory selected by the court must:

2-33      (1) Be operated by this state or one of its political subdivisions; and

2-34      (2) Satisfy or exceed the standards for quality assurance that are

2-35  established by the Federal Bureau of Investigation for participation in

2-36  CODIS. As used in this subparagraph, “CODIS” means the Combined

2-37  DNA Indexing System operated by the Federal Bureau of Investigation.

2-38    (c) Order the forensic laboratory selected pursuant to paragraph (b) to

2-39  perform a genetic marker analysis of evidence. The analysis to be

2-40  performed and evidence to be analyzed must:

2-41      (1) Be specified in the order; and

2-42      (2) Include such analysis, testing and comparison of genetic marker

2-43  information contained in the evidence and the genetic marker

2-44  information of the petitioner as the court determines appropriate under

2-45  the circumstances.

2-46    (d) Order the production of any reports that are prepared by a forensic

2-47  laboratory in connection with the analysis and any data and notes upon

2-48  which the report is based.

3-1    (e) Order the preservation of evidence used in a genetic marker

3-2  analysis performed pursuant to this section for purposes of a subsequent

3-3  proceeding or analysis, if any.

3-4    8.  If the results of a genetic marker analysis performed pursuant to

3-5  this section are favorable to the petitioner, the court shall immediately

3-6  notify the state board of pardons commissioners for appropriate

3-7  reconsideration of the results.

3-8    9.  The court shall dismiss a petition filed pursuant to this section if:

3-9    (a) The requirements for ordering a genetic marker analysis pursuant

3-10  to this section are not satisfied; or

3-11    (b) The results of a genetic marker analysis performed pursuant to

3-12  this section are not favorable to the petitioner.

3-13    10.  An order of a court granting or dismissing a petition pursuant to

3-14  this section is final and not subject to judicial review.

3-15    11.  For the purposes of a genetic marker analysis pursuant to this

3-16  section, a person under sentence of death who files a petition pursuant to

3-17  this section shall be deemed to consent to the:

3-18    (a) Extraction of a specimen, including, without limitation, a sample

3-19  of blood, from him to determine his genetic marker information; and

3-20    (b) Release and use of genetic marker information concerning the

3-21  petitioner.

3-22    12.  The expense of an analysis ordered pursuant to this section is a

3-23  charge against the department of prisons and must be paid upon

3-24  approval by the board of state prison commissioners as other claims

3-25  against the state are paid.

3-26    Sec. 3. 1.  After a judge grants a petition requesting a genetic

3-27  marker analysis pursuant to section 2 of this act, if a judge determines

3-28  that the genetic marker analysis cannot be completed before the date of

3-29  the execution of the petitioner, the judge shall stay the execution of the

3-30  judgment of death pending the results of the analysis.

3-31    2.  If the results of an analysis ordered and conducted pursuant to

3-32  section 2 of this act are not favorable to the petitioner:

3-33    (a) Except as otherwise provided in paragraph (b), the director of the

3-34  department of prisons shall, in due course, execute the judgment of

3-35  death.

3-36    (b) If the judgment of death has been stayed pursuant to subsection 1,

3-37  the judge shall cause a certified copy of his order staying the execution of

3-38  the judgment and a certified copy of the report of genetic marker analysis

3-39  that indicates results which are not favorable to a petitioner to be

3-40  immediately forwarded by the clerk of the court to the district attorney.

3-41  Upon receipt, the district attorney shall pursue the issuance of a new

3-42  warrant of execution of the judgment of death in the manner provided in

3-43  NRS 176.495.

3-44    Sec. 4.  1.  There is hereby appropriated from the state general fund

3-45  to the department of prisons the sum of $6,250 for the expense of genetic

3-46  marker analyses pursuant to section 2 of this act.

3-47    2.  Any remaining balance of the appropriation made by subsection 1

3-48  must not be committed for expenditure after June 30, 2003, and reverts to

4-1  the state general fund as soon as all payments of money committed have

4-2  been made.

4-3    Sec. 5.  The department of prisons, in consultation with the attorney

4-4  general, shall, on or before August 1, 2001:

4-5    1.  Prescribe the form for a petition requesting the genetic marker

4-6  analysis of evidence pursuant to section 2 of this act; and

4-7    2.  Provide a copy of the form and a copy of the provisions of section 2

4-8  of this act to each person in the custody of the department who is under a

4-9  sentence of death.

4-10    Sec. 6.  This act becomes effective upon passage and approval.

 

4-11  H