MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 10, 2003
The Committee on Judiciarywas called to order at 9:00 a.m., on Monday, February 10, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and via simultaneous videoconference in Room 4401 in the Grant Sawyer Administrative Building in Las Vegas. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
GUEST LEGISLATORS PRESENT:
Assemblywoman Sheila Leslie, Assembly District No. 27
Senator Mike McGinness, Central Nevada Senatorial District
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Nancy Elder, Committee Secretary
OTHERS PRESENT:
Nicolas Anthony, Senior Research Analyst, Research Division, Legislative Counsel Bureau, Carson City, Nevada
Nancy Hart, Nevada State Death Penalty Abolition Coordinator, and Amnesty International USA, Reno, Nevada
Bobbie Gang, National Association of Social Workers, and Nevada Women’s Lobby, Las Vegas, Nevada
Mark Nichols, Executive Director, National Association of Social Workers, Nevada Chapter, Las Vegas, Nevada
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Las Vegas, Nevada
Michael Pescetta, Assistant Federal Public Defender, Office of the Federal Public Defender, District of Nevada, Las Vegas, Nevada, appearing as a private citizen
Jan Gilbert, Northern Nevada Coordinator, Progressive Leadership Alliance Nevada (PLAN), Carson City, Nevada
Larry D. Struve, Legislative Advocate, Religious Alliance of Nevada (RAIN), Reno, Nevada
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office, Reno, Nevada
Roll was called and Chairman Anderson determined a quorum was present. Chairman Anderson gave his standard opening remarks. He read summaries of six bill draft requests (BDR):
· BDR 15-277 — Permits law enforcement agency to inspect certain records pertaining to abuse, neglect, exploitation or isolation of older persons. (A.B. 59)
· BDR 5-280 — Provides that decision of juvenile court to deny certification of child for criminal proceedings as an adult may be appealed. (A.B. 60)
· BDR 14-281 — Makes various changes to provisions governing testimony and evidence of witness who was granted immunity in criminal proceedings. (A.B. 61)
· BDR 15-282—Increases penalty for committing sexual assault, which did not involve bodily harm against a child under age of 16 years. (A.B. 62)
· BDR 4-317 — Creates exception to hearsay rule for certain testimony offered at preliminary examinations. (A.B. 63)
· BDR 15-320 — Prohibits persons convicted of certain felonies from purchasing or possessing body armor. (A.B. 64)
ASSEMBLYWOMAN OHRENSCHALL MOVED FOR COMMITTEE INTRODUCTION OF BDR 15-277, BDR 5-280, BDR 14-281, BDR 15-282, BDR 4-317, AND BDR 15-320.
ASSEMBLYMAN GEDDES SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Anderson opened the hearing for the presentation by the Legislative Commission Subcommittee to Study the Death Penalty and Related DNA Testing, a study that had been requested by the Assembly Committee on Judiciary as A.C.R. 3 of the 17th Special Session. Chairman Anderson acknowledged the presence of Assemblywoman Sheila Leslie and Mr. Nicolas Anthony, Senior Research Analyst, Research Division, Legislative Counsel Bureau (LCB).
Assemblywoman Sheila Leslie, Assembly District No. 27, informed the Committee that during the past interim she had had the distinct honor of serving as Chair of the ACR 3 Study on the Death Penalty and DNA Testing. She made note that all members of the Committee should have received copies of the final report (Exhibit C). She stated it was important to acknowledge the dedicated LCB staff who had worked hard and served on the subcommittee: Nicolas Anthony, Senior Research Analyst, Research Division; Risa Lang, Principal Deputy Counsel of the Legal Division; and Deborah Rengler, Senior Research Secretary, Research Division. Those people had worked very long hours alongside the subcommittee and deserved much of the credit for the concise and well-written document, which accurately covered an immense amount of research in a readable format.
Ms. Leslie read the names of the other members of the ACR 3 of the 17th Special Session subcommittee, who were former Nevada Senator Mark A. James, Senator Mike McGinness, Senator Joseph Neal, Senator Maurice Washington, Assemblyman Bernie Anderson, Assemblyman John Oceguera, and Assemblywoman Sheila Leslie. Senator Dennis Nolan had served during the 71st Legislative Session as a member of the Assembly Committee on Judiciary.
Ms. Leslie commended the members of the subcommittee and noted that each member had been an active participant in the study, and they clearly had done their homework. The subcommittee had been able to engage national, state, and local experts to assist in its effort. Some of the national experts who had testified included Professor Bryan Stevenson, New York University School of Law, who had spoken on racial bias in the system; Professor James Liebman, Columbia University School of Law, who had testified in response to his recent study, “Error Rates In Capital Cases, Part II”; Professor Barry Scheck, a well-known trial expert and founder of The Innocence Project, who had testified on the uses of DNA; and Richard Dieter, Executive Director of the Death Penalty Information Center, who had testified on the costs of the death penalty system.
The subcommittee had also received testimony from the Nevada Office of the Attorney General; the Offices of the Clark and Washoe County District Attorneys; the Offices of the Clark and Washoe County Public Defenders; the Office of the Federal Public Defender; the Nevada Department of Corrections; the American Civil Liberties Union; the National Association for the Advancement of Colored People (NAACP); Families of Murder Victims; members of the Nevada judiciary; offices of the Clark and the Washoe County crime laboratories; members of medical, legal, and religious organizations; and members of the general public. Ms. Leslie emphasized that every effort had been made to ensure all sides of the issues were heard.
Ms. Leslie noted that the subcommittee had considered recommendations from the Constitution Project’s Death Penalty Initiative, a bipartisan group of former judges, prosecutors, public officials, victim advocates, defense lawyers, journalists, scholars, and others who were both supporters and opponents of the death penalty. Ms. Leslie added that the subcommittee had authored a publication, which was an excellent resource document and could be referred to in personal study of the issues included in this report.
Ms. Leslie reported that the subcommittee had held six meetings that were scheduled to address specific agenda topics.
Ms. Leslie explained that it was the subcommittee’s sentiment that the Judicial Branch might be the most appropriate forum in which to address certain procedural concerns. Therefore, the subcommittee drafted a series of letters to the Nevada Supreme Court.
· The first letter urged the Court to consider the issues of prejudice and economic bias.
· The second letter urged the Court to consider creating an independent authority to recruit, select, train, monitor, support, and assist attorneys.
· The third letter urged the Court to consider amending Supreme Court Rule (SCR) 250 to increase the minimum qualifications of capital cases.
· The fourth letter urged the Court to amend SCR 250 to not allow procedural default rules as a bar to constitutional considerations.
· The fifth letter urged the Court to consider adopting a rule requiring individual voir dire and sequestering of jury members in capital cases.
· The sixth letter urged the Court to consider adopting a rule requiring written questionnaires of jury members in capital cases.
· The seventh letter urged the Court to consider adopting a rule to require all judges who would preside over capital cases to receive a minimum of eight hours of continuing legal education.
Ms. Leslie added that the subcommittee had recommended other letters to be drafted to other courts, counties, and associations as well, and that the subcommittee felt strongly enough to have recommended legislation to be drafted. The following five BDRs were requested on behalf of the subcommittee:
· BDR 14-198 — Makes various changes to penalty hearing when death penalty is sought and revises mitigating circumstances for murder of first degree.(A.B. 14)
Ms. Leslie acknowledged that she had begun this study by reading a great deal of material and by talking to many different people and groups. She had been confronted with some gruesome details of unspeakable actions of the perpetrators of heinous crimes. She expressed that the emotions raised by learning of the gruesome details of some of the most horrible, reviling murders that could ever be imagined, had, at times, prevented rational discussion. She said she found this to be by far the most difficult legislative task she had ever faced.
Ms. Leslie said she had finally reached the conclusion that there were many problems with the death penalty. She had become very interested in death penalty reforms, and she wanted to ensure that guilty people would be appropriately punished and that an innocent person would never be put to death in the state of Nevada.
Ms. Leslie pointed out that since the time of the study, the subject of the death penalty had garnered national attention. The Web site for The Innocence Project at the Cardozo School of Law had documented 123 cases of people who had been exonerated of capital crimes by DNA evidence as of the morning of February 10, 2003. Many of those people had been sentenced to death and were awaiting their fates on death row in many states. She said there had been moratoriums and blanket pardons in states with major death penalty issues, such as Illinois and Maryland. She added that these two states, along with Connecticut, had concluded recent studies of needed reforms, and had reached similar conclusions as this subcommittee’s study.
Ms. Leslie also bore testimony on a very personal matter. She confided that during the interim study of the death penalty, her family had experienced the terrible murder of her great-niece, Asia Mae Basa, who was only two years old. She shared that it was an extremely difficult experience for her and her family, and it had brought the issues of the families of murder victims very close to home.
Ms. Leslie concluded by telling the Committee that they would have an awesome responsibility to make very important decisions on what she considered to be the most important human rights issue of their time. She assured the Committee that she knew they would be up to the task, and said she would be available to discuss the issues.
Chairman Anderson thanked Ms. Leslie and acknowledged her courage. He mentioned that he also had dealt with an experience involving a murder in his own family, so he understood the emotional nature of the issue. He said Ms. Leslie had conducted very well-balanced hearings and had done a thorough job in a timely fashion.
Assemblyman Geddes asked Ms. Leslie about Recommendation 13, which was under the title, “Judicial Functions and Three-Judge Panels” of the final report. He noted the subcommittee had wanted to remove some of the language there, and wondered if they would also want to change the language that had been used in circumstance 14 as well, since it had appeared to be identical language.
Chairman Anderson suggested that the question at hand might be better discussed at a later time, but asked Ms. Leslie if she wanted to go ahead and answer it.
Ms. Leslie replied that the subcommittee had removed the language in circumstance 13 because it was the most ambiguous language, but she anticipated that the Committee would want to go back and look at the language in all of the circumstances.
Chairman Anderson explained that they would be getting into each circumstance individually at another time. He was just looking for overview questions at the present time.
Chairman Anderson called on Assemblyman Garn Mabey.
Assemblyman Mabey questioned language on page 2 of the report, where it read:
Since the reinstatement of the death penalty in Nevada, the death sentence has rarely been carried out against the wishes of the convicted defendant. Since 1977, nine individuals have been executed in Nevada, and in eight of those nine cases, the defendant waived at least a portion of his appeal process.
He asked if that meant that, in the state of Nevada, it was very unlikely that someone who had been sentenced to death would actually be executed.
Ms. Leslie responded that Nevada currently had a long appeals process, and that many inmates had not been put to death. Some inmates had volunteered for the death penalty rather than serve life sentences. Several inmates on death row had died of natural causes. She suggested it might be more likely in Nevada to actually die in death row than to be put to death.
Chairman Anderson asked Mr. Anthony to confirm the number of people on death row.
Nicolas Anthony, Senior Research Analyst, Research Division, Legislative Counsel Bureau, explained the number fluctuated from day to day, but was currently 84 people.
Chairman Anderson agreed that executions were rare in the state of Nevada.
Mr. Mabey expressed concern that perhaps the person who had been found guilty had not been given the best opportunity of defending himself in the sentencing portion of the trial. He was referring to the part of the study where Mr. Kohn testified that often prosecution raised issues that had never been brought up before, knowing that the defense would not be able to rebut. Assemblyman Mabey said it seemed unfair.
Ms. Leslie replied that there would be an interesting debate over that issue in the near future. She stated that virtually 100 percent of the inmates on Nevada’s death row had no access to private defense counsel. That had struck her more than anything else in the study. She added that she had not put down the public defenders in the state. She said Nevada had some wonderful public defenders. She claimed the bias implied that a lack of wealth and inability to have hired private attorneys and investigators and such things was a disadvantage.
Chairman Anderson closed the section on the report and excused Ms. Leslie from the witness table.
Nancy Hart, Nevada State Death Penalty Abolition Coordinator, Amnesty International USA, announced that she was not there in the capacity of a Deputy Attorney General, but was representing Amnesty International and the Nevada Coalition Against the Death Penalty. She explained the Coalition had existed for about two years and had been trying to abolish the death penalty in Nevada. The organization wanted to commend Sheila Leslie and the people who had worked with Ms. Leslie on the subcommittee. She claimed that there was not a question of whether there were problems with the death penalty, but, rather, how those problems would be fixed. She said the Coalition believed that Nevada’s death penalty was too flawed to be fixed and should be abolished. They also believed that the serious flaws found in the study should compel a moratorium on executions in Nevada. She added that if Nevada was going to have a death penalty, it should be fair and accurate. Ms. Hart recommended some national reference material to be reviewed: The Constitution Project and The Justice Project. She added that the American Bar Association had some reading material available. She said that the Coalition supported all the pieces of the legislation dealing with the serious injustice of Nevada’s death penalty system, and wanted to note that each potential bill was very important.
Chairman Anderson thanked Ms. Hart and called on Bobbie Gang, representing the National Association of Social Workers (NASW) and the Nevada Women’s Lobby.
Ms. Gang informed the Committee that she had submitted a copy of a resolution that the Nevada Women’s Association had adopted in October of 2002 (Exhibit D). She said the Nevada Women’s Lobby had followed the work of the interim study subcommittee, and they believed there were demonstrated flaws in Nevada regarding the fairness and accuracy of the death penalty. She said the flaws included grave risks surrounding the execution of individuals, youth, mentally challenged people, racial and ethnic minorities, and people from economically disadvantaged backgrounds. The Nevada Women’s Lobby wanted it known that it supported the recommendations of the subcommittee and hoped the Assembly would give them due consideration and pass all of their bills.
Chairman Anderson thanked Ms. Gang and called on Mark Nichols, Executive Director, National Association of Social Workers, Nevada Chapter. Chairman Anderson noted that Mr. Nichols was testifying live via satellite from Las Vegas, Nevada, and said that his testimony was being distributed to the members of the Committee (Exhibit E).
Mr. Nichols read from his prepared testimony, which stated his support of the subcommittee’s recommendations and its five death penalty reform bills. He asked the Committee to consider three questions:
1. “Is it a fair process?”
2. “Is it an accurate process?”
3. “Is it an equitable system?”
Mr. Nichols stressed the importance of fairness in the death penalty system. He said he was sure that everyone agreed the death penalty must be equitable in its application, and drastic steps must be taken to reform the system. He commented that the debate around the death penalty had been extremely emotional, and reminded the members of the Committee to remember that they were not asked to take an anti-death penalty position at the current time, but were only asked to address the issues of accuracy, equality, and fairness in Nevada’s death penalty system.
Mr. Nichols thanked the Chair and encouraged the Committee to agree that the five bills would be necessary for reform in Nevada.
Chairman Anderson thanked Mr. Nichols and called on Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Clark County, Nevada.
Mr. Graham said he had a long history with the death penalty; when he was 21 years old he had voted to abolish the death penalty in Oregon. He had finished school and gone to work for the district attorney’s office. He also noted that the death penalty had been reinstated in Oregon. He said he had not been a strong advocate of the death penalty at that current time, but did understand that from time to time it would be needed. He introduced senior deputies from Clark County, and Kristin Erickson, Chief Deputy District Attorney, Criminal Division, District Attorney’s Office, Washoe County.
Assemblyman Mortenson asked Mr. Graham why he believed the death penalty was needed from time to time.
Mr. Graham replied that the prosecution and the state had the option of requesting the death penalty under circumstances involving the most grievous of homicide situations.
Mr. Mortenson asked Mr. Graham if he thought the death penalty was a preventive mechanism.
Mr. Graham explained that when the death penalty was utilized it was final to that person, and from that standpoint it was effective. He added that it might be a deterrent to some people, but he was not confident that the majority of those who committed homicides would ever stop to consider the outcome of their actions.
Chairman Anderson called on Michael Pescetta, Assistant Federal Public Defender, Office of the Federal Public Defender, District of Nevada, Las Vegas, Nevada, who said he was representing himself.
Michael Pescetta said he practiced habeas defense, which meant he only defended people on Nevada’s death row. He pointed out that the death penalty in Nevada was a 25-year-old system. It had not been changed since 1977 when it was first enacted. He emphasized that the death penalty only applied to those who had committed first-degree murder. He said this was a class of people who had committed heinous crimes. He said the function of the death penalty system was to select the people who would be worth executing. To identify those eligible for the death penalty, the state relied on a list of statutory aggravating factors, which were listed in NRS 200.033. After the aggravating factors had been determined, a jury was directed to find whether or not the mitigating factors had outweighed the aggravating factors, and then it would be determined whether or not to impose the death penalty. He mentioned that the list of aggravating factors had grown to the point that any first-degree murder case could be prosecuted as a capital case. He opined that the values of fairness that Mr. Nichols had discussed were no longer completely served by the system. Mr. Pescetta explained that, “It has led to the point that Nevada has the highest death row population per capita of any state in the nation. It is bigger per capita than the death row population of Texas, even if you include all of the people in Texas who have in fact been executed.” He confirmed Ms. Leslie’s testimony that nobody in Nevada who had had a privately funded defense had ever been sentenced to death. He said everyone on death row was poor, and he added that there were also issues of race. Despite Nevada’s relatively modest minority population, more than fifty percent of the people on death row were members of minority groups. Forty percent of Nevada’s death row were African-American. He said these concerns showed that a systematic evaluation of Nevada’s death row was overdue. He said only the worst of the worst criminals should have ever been on death row, but that was not what had happened. He concluded by commending Ms. Leslie and the members of the Committee who had aided her with the study.
Chairman Anderson remarked that Mr. Pescetta had done a good job in his research and presentation, and then called on Jan Gilbert, Progressive Leadership Alliance of Nevada (PLAN), Carson City, Nevada.
Ms. Gilbert commented that she represented a 43-member group called PLAN, and they wanted it known that they supported the interim subcommittee’s recommendations. PLAN also recommended that the study be continued. She said there was one issue that the subcommittee did not unanimously support, even though many of the Committee members did. It was the one regarding the death penalty and children under 18 years of age. She reported that the Progressive Leadership Alliance of Nevada felt strongly that children under the age of 18 should not be eligible for the death penalty.
Chairman Anderson thanked Ms. Gilbert and called on Larry Struve, Legislative Advocate, Religious Alliance of Nevada (RAIN).
Larry Struve informed the Committee that RAIN was a coalition of five mainline judicatories in the state of Nevada, which included the Catholic Diocese of Reno and Las Vegas, the Episcopal Diocese of Nevada, the Nevada Presbytery, the two districts of the United Methodist Church, and the Lutheran Advocacy Ministry in Nevada. These judicatories together had about 500,000 parishioners throughout the state of Nevada. He added that all of these judicatories at a national level had taken very vocal stands against the death penalty. Mr. Struve informed the Committee that RAIN had participated in the interim study, and at the outset, the Reverend Ron Rentner, a RAIN board member, had spoken on behalf of RAIN and said, “If, after concluding the study, you find that the death penalty system in Nevada is so flawed that it cannot be fairly and justly administered, then you ought to seriously consider abolishment.” Mr. Struve reminded the Committee that it now had the report, and should have found that there were serious flaws. He informed the Committee that RAIN would be appearing before them again to argue on behalf of the five judicatories in support of abolishment.
Mr. Struve made reference to page 20 of the subcommittee’s report, where there was discussion of the fiscal impact of trying to maintain a flawed death penalty system. In the study, references were made to another study in the state of North Carolina, in which they had estimated that the death penalty had cost North Carolina taxpayers $2.16 million per execution above the cost of a non-death penalty system. It was unknown what the extra cost was in Nevada. He estimated that the taxpayers in Nevada must have paid millions dollars that were hidden, undocumented, or undisclosed. He said RAIN did not know if there ever would be an accurate study of how much more Nevada had paid to maintain a flawed system. Mr. Struve concluded by thanking the subcommittee and commending Assemblywoman Leslie’s leadership in the study.
Chairman Anderson thanked Mr. Struve, and opened the hearing on A.B. 17. He also acknowledged Assemblywoman Sheila Leslie, the subcommittee chairwoman.
Assembly Bill 17: Makes various changes concerning defense in cases involving first-degree murder. (BDR 1-201)
Assemblywoman Leslie referred to pages 12 and 13 of the Interim Study Report (Exhibit C), where a full explanation of the bill was seen. She talked about the legislation’s requirements of what positions needed to be included in the defense teams. The bill also amended the presumptive limits on attorney fees prescribed by NRS 7.125 to $20,000, and raised the limit on ancillary expenses under NRS 7.135 to $500. It also proposed that more resources should be allocated to the defense team. Ms. Leslie informed the Assembly Committee on Judiciary that the subcommittee had recommended this bill unanimously. She had to ask the chair to excuse her, as she needed to report to her position on the Assembly Committee on Ways and Means.
Chairman Anderson excused Ms. Leslie, and he recalled Michael Pescetta to the witness table.
Mr. Pescetta reminded the Committee that he was representing himself, and not the Federal Public Defender’s Office. He said the reforms A.B. 17 proposed were fairly modest ones. The fee limits for appointed counsel had not been changed since 1991. He said he thought everyone agreed that the cost of living had increased significantly since 1991. He added that the $300 cap had been in effect for 20 years, since 1983. He felt it was time to recognize that the defense of capital cases was not inexpensive, and the status and concern that they had for that penalty defense required acknowledgement of the difficulty and extensive nature of the defense in potential death penalty cases. He said there had been cases where counties had paid special prosecution up to $200 per hour. He added that in civil cases, counties had typically spent much more money per hour on their defense cases than what was paid to people in whom other people’s lives had been entrusted. He suggested that the county defender’s offices needed to be in such a position that their budget would allow them to fund necessary expert services, such as psychiatrists, psychologists, or investigators.
Mr. Pescetta informed the Committee that Clark County had the second highest rate of reversal of capital cases of any county over 600,000 people in the country. At some point, 64 percent of these cases had been reversed. He said that while some people had said that those statistics illustrated the system had been working, to him, it demonstrated the opposite. It showed that at least 64 percent of the inmates who were put on death row should not have been. He added that there was something wrong with the idea that the system might catch and correct those mistakes later. The most common basis for reversal in capital cases had been ineffective assistance of defense counsel. He concluded that A.B. 17 would prevent wasting a lot of money, and it was a worthwhile measure that deserved support.
Assemblywoman Buckley said she had found it interesting to read the story of the recent Ninth Circuit Court of Appeals decision about the Nevada Miranda case. She said it would be important to look at the public defenders’ quality of representation, as well as making sure that outside counsel was an option, to protect county resources. This was because if a case had been overturned, it sent a signal that something had gone wrong in the original defense. She also pointed out that if resources had not been provided up front, ultimately counties and offices could be liable for their ineffective assistance of counsel. She asked Mr. Pescetta to respond to her comments.
Mr. Pescetta replied that trying to do anything cheaply led to a variety of fiscal consequences later on. If a death penalty case ultimately got reversed on the basis of ineffective assistance counsel, then the taxpayers had not only paid for that person to have been on death row during that period, but also paid the cost of litigation for defense attorneys, prosecutors, judges, the District Attorney’s Offices, and the Attorney General’s Office. He added that assuming the Miranda case survived, that would open up the question of what was the devotion of resources to capital case defense in the public defender’s offices in the various counties that had them. In terms of the Miranda case, that was an individual who had spent 14 years on death row. There was controversy over whether the state had not retried the case because it could not prove that Mr. Miranda was the individual who had committed the homicide in question. If a jury had to say what Mr. Miranda’s 14 years on death row had been worth that would be a potentially sizable award against the county.
Mr. Anderson asked for questions and recognized Mr. Carpenter.
Mr. Carpenter asked if cases overturned due to ineffective counsel had occurred recently, or if most of those cases were old cases from the past.
Mr. Pescetta replied that no statistics had been kept for Nevada. There was a sense born out of nationwide statistics that an ineffective assistance of counsel had been the most common basis for reversal of capital cases. The most recent case reversed by the Ninth Circuit Court of Appeals was a Nevada case based on ineffective counsel. He also reported that in the Miranda case, according to the Ninth Circuit decision, a person who had barely been out of law school for a year, and who had never had any involvement in a death penalty case, had been assigned to represent the defendant. Clark County’s Public Defender’s Office had formed a specialized murder team. That team had been handling all the capital cases. He said the short answer to Mr. Carpenter’s question was that a problem with ineffective assistance of counsel was still a problem at the current time. He added that it probably applied to about 50 percent of the cases in Nevada.
Mr. Carpenter asked if the statistics were available.
Mr. Pescetta said the Federal Public Defender’s Office would have to generate those statistics for him, as there was nobody maintaining those statistics.
Chairman Anderson added that general statistics as a whole are difficult to obtain, but the courts had made remarkable progress recently, so hopefully more statistical information should be available in the future. Chairman Anderson called on Assemblyman Mortenson.
Assemblyman Mortenson remarked that ultimate justice would exist if legislation were passed that the prosecution could spend no more money than the defense on a particular case. He asked if any other state happened to have that law.
Mr. Pescetta replied that he knew of no state that had that arrangement. He claimed it would be difficult to segregate the costs in court cases. The prosecution had the resources of an entire police department, as well as the district attorney’s investigators. It would be challenging to get an absolute parity in terms of funding. It was difficult enough to determine defense costs for death penalty cases alone, because those statistics simply had not been kept. For instance, nobody had tracked how many hours a district attorney had spent defending a death penalty case in a habeas corpus review. He said to give an honest answer to the question; he would have to say it is unknown.
Chairman Anderson called attention to A.B. 17, page 2, line 11, in reference to the $20,000 change, and also to page 3, Section 2, line 10, in reference to the change from $300 to $500. He also wanted the members of the Committee to look at the applicable new section of the statute, which was in Section 3, in reference to the expansion of the number of attorneys and investigatory team the defense may have. Chairman Anderson asked whether a defendant charged with murder would be better served by not taking the public defender so that he could have a larger team appointed by the court, to include two attorneys, an investigator, a mitigating specialist, a forensic psychiatrist, and a forensic psychologist.
Mr. Pescetta replied that he did not believe it would be a benefit. He said the public defender’s office had anticipated a budget that would provide for hiring all the experts needed in a defense case.
Chairman Anderson replied that was very good news and exactly what the public should expect. He called on Assemblymen Horne, Geddes, and Brown to ask questions in that order.
Assemblyman Horne asked about the figures regarding the appeals and the habeas on Sections 1, 2, and 3 of the report, and said they seemed low. He said, for the record, that his wife worked for the Federal Public Defender’s Office in Clark County.
Mr. Pescetta said the figures were low, and the habeas figures had been in effect for at least 12 years. He noted that the amounts were presumptive amounts. He said in terms of the habeas amount, there had been no distinction made between misdemeanors, gross misdemeanors, felonies, homicide cases, or death penalty cases.
Chairman Anderson directed the Committee’s attention to Section 4 of the bill, and asked Risa Lang, Committee Counsel, to review Section 4 of A.B. 17.
Ms. Lang informed the Committee that the manner in which the higher amount had been authorized was detailed in subsection 4, which said that the appointing court could authorize a higher amount if the complexity of the case merited such amounts. Those are the presumptive maximum amounts. If the defense wanted to go beyond that, they would have to go to the courts to show that their expenses had exceeded that amount.
Chairman Anderson asked Mr. Horne if that had been helpful information.
Assemblyman Horne said he had been operating from the assumption that a habeas challenge was technical in and of itself. Mr. Horne thanked the Chairman.
Assemblyman Geddes commented that he had scanned Sections 3 and 4 and had not been able to find definitions for mitigation specialists, forensic psychologists, and forensic psychiatrists.
Mr. Pescetta agreed that a definition of a mitigation specialist was not included in A.B. 17. He said that psychologists and psychiatrists were licensed. He said a mitigation specialist was someone who conducted special investigation work. This type of investigation emphasized such things as family history, the background of the defendant, and additional information about the defendant. He added that if this service were needed, the fees could exceed the presumptive limits, and that was something that would be presented to the judge.
Chairman Anderson called on Assemblyman Brown.
Assemblyman Brown asked for an explanation of what was said under Section 3, subsection 5, where it read “any other persons esteemed necessary by the court.”
Mr. Pescetta explained that there were numerous experts that could be hired by the courts. There were experts who did such things as blood splatter analysis, and there were experts on DNA. Sometimes there were reasons to call upon computer experts. When the prosecution had hired an expert to testify, it would be necessary for the defense to hire a similar expert to secure an accurate report.
Assemblyman Brown asked what percentage of reversals was due to ineffective counsel.
Mr. Pescetta replied that there were no records being kept by the state. All he had was an opinion. He said that a list could be generated, but more research was necessary.
Assemblyman Brown said he was interested in Mr. Pescetta’s opinion and also in some follow-up at a later time.
Mr. Pescetta restated that ineffective counsel was the most common problem.
Chairman Anderson called on Mr. Conklin.
Assemblyman Conklin asked if the Committee would have an opportunity to hear more on this topic at a later date.
Chairman Anderson replied that the Committee would hear more on this topic on an upcoming day, but he did not know if the people who had come to testify that day would be available to come back at a later time.
Assemblyman Conklin referred to Page 3, Section 3, where there was a list of items that needed to be provided to a defendant in a capital case. He wondered what would happen if a public defender’s office did not provide the items on that list. He wondered how a judge would know that the defendant had not been issued those items, so the judge could assure that the defendant’s opportunity had not been limited.
Mr. Pescetta said that whether or not the case had been a direct appointment case or a public-defender-represented case, there was no reason all those items would not be provided. He thought the chances of that happening would be unlikely; however, there was no way to legislate that a county public defender’s office would perform adequately. Legislation merely mandated what should be done. He also noted that there had been more problems with attorneys having lack of experience, than there had been problems stemming from a lack of money in the budget.
Chairman Anderson called on Assemblyman Horne.
Assemblyman Horne expressed concern that ineffective assistance of counsel had come up a number of times, and he wanted an explanation of how difficult it was to have success in such claims.
Mr. Pescetta replied that there would not be enough time to expatiate on that. The legal standard under the Sixth Amendment of the Constitution of the United States, was that an attorney was required to provide reasonably effective assistance. Reversal of a resulting conviction or sentence required proof that an attorney’s performance had dropped below an objective standard of reasonableness, and that there was prejudice to the defendant. He explained that this was defined under the Sixth Amendment as a reasonable probability that a different result would have been obtained. He said it was a high standard. He gave an example of one of the most common situations. There was a defendant who had an enormous amount of mitigation evidence, such as a history of psychiatric disturbances and a brutal upbringing. If for some reason that evidence was not discovered by counsel, it could have been considered ineffective assistance of counsel.
Chairman Anderson announced that they were nearly out of time, but he wanted to get people on the record who had come to register opposition to the bill. He called on Kristin Erickson, Chief Deputy District Attorney, Washoe County District Attorney, Reno, Nevada.
Ms. Erickson said she was representing the Washoe County’s District Attorney’s office, as well as the Nevada District Attorney’s Association. She said the organizations she was representing had no objections to A.B. 17, Sections 1 and 2. She noted that defense attorneys had not received a pay increase since 1991, and the Nevada District Attorney’s Association believed they deserved a wage increase. She stated their only concern was regarding Section 3. The listed requirements would apply to all first-degree murder cases, whether they were death penalty cases or not. Supreme Court Rule 250 contained adequate safeguards to death penalty cases. U.S. Supreme Court pending cases could change. With regards to first-degree murder cases, she said that a second taxpayer-funded attorney was not necessary in a great many of the cases. If a second attorney were needed in a complex case, the defense could petition the court to add a second defense attorney. To automatically appoint two attorneys for a first-degree murder case would be unnecessary. She emphasized that to hire all the specialists in addition to the attorneys would result in an enormous cost. She said Washoe County had considered cutbacks and layoffs at the District Attorney’s Office. She said Washoe County would experience difficulty in attempting to provide all of these services. She pointed out that in many cases psychiatrists and other experts would not even be needed. She said there were probably other small counties that could not afford those costs either. She said she had never heard of a first-degree murder case where the courts had denied a request to hire a psychologist or another specialist. She said that as far as a mitigation specialist was concerned, she didn’t know what a mitigation specialist was, much less how much the hourly cost of hiring one would be. She expressed concern that Section 3 left a lot of room for abuse. Psychologists or other specialists could overcharge the government. Often, when people realized the government was paying the bill, their costs tended to increase. She said it would be necessary to ensure some safeguards to prevent abuse. In summary, she said there was no reason to have Section 3 included in this bill.
Chairman Anderson thanked Ms. Erickson. He asked whether placing these provisions in the statutes would provide the foundation for the primary elements necessary, rather than leaving it open to the discretion of the court.
Ms. Erickson said the procedures necessary to adequately defend first-degree murder cases were already in place. She added that the investigator’s fees and psychiatrist’s fees could be presented to the court and were arbitrarily granted.
Chairman Anderson asked if there would only be one attorney trying a case in a first-degree murder trial.
Ms. Erickson replied that it was common for one attorney to prosecute a first-degree murder case; occasionally there was a team of attorneys.
Chairman Anderson asked how often a single attorney tried a first-degree murder case.
Ms. Erickson estimated that it was about a fifty-fifty percent chance in first-degree murder cases. That meant just as many cases had one attorney as cases that required more attorneys.
Chairman Anderson asked where in the statutes a person could turn to see what they could expect from the public defender’s office.
Ms. Erickson said that certainly all defendants would be entitled to a defense.
Chairman Anderson said that since she had not provided him with a list of the statutes, he would ask the Committee Policy Analyst to obtain it.
Chairman Anderson announced that they were out of time. He said he appreciated all the people who had come, and a document was distributed in support of the bill from JoNell Thomas (Exhibit F) to all the members of the Assembly Committee on Judiciary, without testimony. He said A.B. 17 would be reposted for another hearing. He thanked everyone and adjourned the meeting at 11:01a.m.
RESPECTFULLY SUBMITTED:
Nancy Elder
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: