MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 12, 2003
The Committee on Judiciarywas called to order at 8:14 a.m., on Wednesday, February 12, 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, District No. 27, Reno
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Carrie Lee, Committee Secretary
OTHERS PRESENT:
Dr. Brian Lahren, Ph.D., former Executive Director, The Washoe Association of Retarded Citizens, Reno, Nevada
Michael Pescetta, Las Vegas, Nevada
Dr. W. Larry Williams, Ph.D., Associate Professor, Department of Psychology, University of Nevada, Reno, representing the American Civil Liberties Union
Clark A. Peterson, Chief Deputy District Attorney, Clark County District Attorney, Las Vegas, Nevada
Kristin L. Erickson, Nevada District Attorney’s Association, Reno, Nevada
Dr. Richard Siegel, Ph.D., Professor of Political Science, University of Nevada, Reno, and President, American Civil Liberties Union in Northern Nevada
Reverend Chuck Durante, Life, Peace, and Justice Commission, Diocese of Reno, Nevada
V. Robert Payant, Nevada Catholic Conference, Diocese of Reno, Nevada
Reverend Dr. Phil Hausknecht, President, Lutheran Advocacy Ministry in Nevada, and Lobbyist, Religious Alliance in Nevada (RAIN)
Larry D. Struve, Legislative Advocate, Religious Alliance in Nevada (RAIN), Reno, Nevada
Howard Brooks, President, Nevada Attorneys for Criminal Justice, Las Vegas, Nevada
JoNell Thomas, American Civil Liberties Union, and Nevada Attorneys for Criminal Justice, Las Vegas, Nevada
Elmer R. Rusco, Nevada Coalition Against the Death Penalty, Reno, Nevada
Launa Hall, Student, Department of Social Work, University of Nevada, Las Vegas
Benjamin Blinn, Citizen
Chairman Anderson called the meeting to order and noted that a quorum was present. He introduced the following bill draft requests (BDR) for consideration by the Committee:
· BDR 14-284 - Makes various changes to provision pertaining to authority and discretion of court to suspend sentence and grant probation in certain cases. (A.B. 95)
· BDR 11-292 - Revises provisions governing hours of operation for office of commissioner of civil marriages in certain larger counties. (A.B. 94)
· BDR 15-423 - Revises provisions governing smoking of tobacco in public places. (A.B. 96)
· BDR 3-608 - Makes various changes to provisions pertaining to domestic violence. (A.B. 97)
· BDR 16-609 - Authorizes governing body of city to create department of alternative sentencing. (A.B. 98)
ASSEMBLYMAN CARPENTER MOVED FOR COMMITTEE INTRODUCTION OF BDR 14-284, BDR 11-292, BDR 15-423, BDR 3-608, AND BDR 16-609.
ASSEMBLYMAN CONKLIN SECONDED THE MOTION.
THE MOTION PASSED. (Ms. Buckley and Mr. Mortenson were not present for the vote.)
Chairman Anderson opened the hearing on A.B. 15.
Assembly Bill 15: Prohibits sentence of death for person who is mentally retarded. (BDR 14-199)
He welcomed Assemblywoman Sheila Leslie, District No. 27, Reno, Nevada. Ms. Leslie testified today because A.B. 15 had been her bill last session and she wanted to present it personally to the Committee. A.B. 15 was essentially a rewrite of A.B. 353 from the Seventy-first Legislative Session, a bill that she had been primary sponsor for. The bill passed the Assembly but was never given the opportunity for a vote in the Senate Judiciary Committee. The bill received a lot of attention and had a very long legislative history with a great deal of testimony from a variety of experts. During the 2001-2002 interim, the Legislative Commission’s Subcommittee to Study the Death Penalty and Related DNA Testing had heard testimony from individuals and experts from within the professional and medical community (Exhibit C). The subcommittee learned that mental retardation manifested before a person reached adulthood, and that the condition differed from mental illness. People with mental retardation often tried to mask their disability, which made it difficult to work with their defense team. Professionals could determine a diagnosis of mental retardation, as there would be a history of special education services, poor academic and social performance, and other indicators.
Discussion during the interim study had centered on the IQ (intelligence quotient) level of 70 as the level that determined mental retardation, although Ms. Leslie pointed out that professionals did not solely rely on IQ; they generally reviewed the overall functioning and history of disability over the course of a lifetime of a person before a diagnosis was made. One of the main features of A.B. 15 would be to determine what definition of mental retardation to use. Assemblywoman Leslie did not believe that the IQ score of 70 needed to be in bill language; that aspect could be changed. The interim subcommittee, which included four Senators, voted unanimously to prohibit the imposition of a death sentence on an individual diagnosed with mental retardation. Shortly thereafter, the United States Supreme Court issued their landmark ruling that ended the execution of people with mental retardation (Atkins v. Virginia). The Court held that it was a violation of the Eighth Amendment prohibition of cruel and unusual punishment to execute inmates with mental retardation on death row. Ms. Leslie said several experts in the audience would testify on and answer questions about developmental disabilities and about the technical aspects of a diagnosis of mental retardation. Mental retardation was a lifelong condition of impaired or incomplete mental development that manifested itself in childhood and could not be faked. Defendants did not suddenly become mentally retarded. There was no cure for this impairment, unlike mental illness, where one could take medication and manage the condition. It was well documented that many people with mental retardation relinquished critical rights because they could not understand what it meant to have rights, much less to waive them. Ms. Leslie cited a case of a mentally retarded man, Eddie Mitchell, on death row in Louisiana, who had waived all of his rights during interrogation. When an attorney asked if he understood what waiving his rights meant, Mr. Mitchell had raised his hand and waved. When people with mental retardation said they understood, they actually might not. Assemblywoman Leslie saw a suggested amendment to A.B. 15 from the Nevada District Attorney’s Association and the Washoe County District Attorney, and she appreciated their efforts but took no position at this time on the proposal.
Regarding the IQ score of 70, Chairman Anderson asked if Ms. Leslie hoped this legislation would specify a more concise definition that considered other factors.
Assemblywoman Leslie stated that the leading expert in the country had reviewed A.B. 15 and determined that it met the constitutional requirements for the Atkins decision. She suggested that the 2002 version of the definition for mental retardation from the American Association on Mental Retardation (AAMR) (Exhibit D) be used; the definition did not include the IQ score of 70, but had a precise definition of what mental retardation entailed. Ms. Leslie would not return to testify on A.B. 15; Vice Chairman Oceguera and Chairman Anderson had also served on the subcommittee and were well informed.
Dr. Brian Lahren, Ph.D., Behavioral Psychologist, former administrator of the Division of Mental Health and Developmental Services, and former director of Washoe Association for Retarded Citizens (Washoe ARC), provided a general background on issues that pertained to mental retardation. He appreciated how well Assemblywoman Leslie articulated the general outline of the issues and he hoped to put a human face on the definition. Dr. Lahren had studied the area of developmental disabilities for 25 years; people with clearly definable mental retardation were substantially different than the normal population. People with mental retardation had a “pervasively compromising intellectual status,” unlike people with mental illness, who had IQs within or above normal ranges. People with mental retardation had serious difficulty comprehending the world they lived in. They struggled constantly to try to figure out what was going on around them and had simple notions of what the demand characteristics were of the situations they were in. Many had the primary notion to try to please the people around them. As a consequence, they did not think intentionally about what was going on, did not want to get in trouble, and ended up confessing. In Illinois and other East Coast states, it was typical for retarded people on death row to confess to crimes they did not commit. Mental retardation affected one percent of all live births in the United States. People with mental retardation were so significantly compromised that it was fairly easy to diagnose by a professional who administered standardized psychological tests that assessed functional skills. It was generally the case that cognitive delays manifested in school records, but that was not so with older populations, especially black males who had been raised in the South and were not given access to special education programs. This was not a difficult discernment to make. The AAMR suggested that the focus not be on the IQ score of 70 because of small variations in test results when the same administrator gave tests repeatedly. When a person had a significantly sub-average score, typically two standard deviations below the mean, there were a variety of other defining factors that were easy to assess. In the past, professionals did not look for those signs. Dr. Lahren said it did not make sense to hold people completely responsible for their actions if they were not able to understand the fundamental requirements of the society that they lived in, nor were they able to function as the rest of the population did in any reasonable way. Dr. Lahren urged the Committee to support A.B. 15; a significantly sub-average intelligence could be used as the defining criteria for mental retardation instead of the IQ of 70.
Assemblywoman Angle asked Dr. Lahren to restate the description of mental retardation without considering IQ. He said it was determined through a functional assessment by a professional that looked at the way a person understood and was able to deal with the routine life skill demands that were placed on all of us. Significantly sub-average intellectual functioning on a standardized test could be the defining criteria; one or two IQ points should not matter.
Mrs. Angle rephrased his answer and asked for clarification on two standard deviations. Dr. Lahren explained that standardized testing was described in terms of deviations from a mean, or average, score. An IQ of 100 was the average score of all people tested. One standard deviation below the mean was described as being 15 points below the mean. Two standard deviations below the mean would be 70 IQ points. The issue was not the points themselves but the overall level of intellectual functioning being described as significantly sub‑average.
Assemblyman Brown asked if mental retardation was caused by a genetic condition, and if denied opportunities over a lifetime created a level of dysfunction. Dr. Lahren responded that there were over 250 genetic causes, but they were not the only reasons one might be classified as mentally retarded. Middle ear infections that resulted in encephalitis could also cause mental retardation. He said he would downplay a social cause or deprivation; a person who lacked social skills because of their upbringing might test in the normal range on an IQ test. Mental retardation could be accompanied by many other biological problems such as seizure disorders and cerebral palsy. A person could be both mentally retarded and mentally ill if there was a neuro-chemistry problem.
Assemblyman Horne wondered if people masked their mental retardation and settled into their own niche with regular jobs. Dr. Lahren replied that many people did just that. Over 3,000 mentally retarded people received services in Nevada, slightly more than one-tenth of one percent of the total population. Everyone had encountered people not doing well in society but functioning. People with mental retardation did not want to be seen as different and labeled as such. Washoe ARC was so named because the clients had voted not to be called the Washoe Association for Retarded Citizens.
Assemblyman Mabey asked if a person with mental retardation would understand that they committed murder. Dr. Lahren replied that the person might verbally be able to say yes, they had done it and know that it was not right. They might talk on impulse and not understand the larger implications of justice. Mental retardation compromised every aspect of contact with the judicial system and the very notion of intentionality on which common law was based. Dr. Lahren said society should hold people responsible for their actions based on their cognitive appreciation of their actions.
Mrs. Angle asked if a mentally retarded person would understand what murder was and the consequences of that act. Dr. Lahren answered that it was difficult to know whether anybody understood that at the time they did it. With people who were significantly and quite easily discernibly cognitively incompetent, that judgment was extremely difficult to make.
Michael Pescetta said he was a lawyer who practiced in the area of death penalties and testified in that capacity, not as a federal public defender. He stated he was not an expert in mental retardation but had mentally retarded clients. Mr. Pescetta said what the professionals had said today was true in practice: the masking effect was real. A client of his had been on death row for 14 years before anyone noticed that he was mentally retarded because he was the perfect client: agreeable, compliant, did anything anyone wanted him to do, and never made trouble. Mr. Pescetta finally realized his client was retarded when he noticed that the client could not retain any information from their meetings. Clients that were mentally retarded would do anything, especially if people in authority asked. Mental retardation was not incompetence or insanity. Most people with retardation had a rudimentary appreciation for what was right and wrong. If they did not have that appreciation, they were incompetent and could not be convicted or tried of any crimes, just as if they were insane. He said the definition Dr. Lahren gave for mental retardation was the standard definition. Mr. Pescetta said he had seen a proposed amendment for A.B. 15 (Exhibit E), which would have the bill use the definition of mental retardation that existed in the Nevada Revised Statutes (NRS) 433.174. He felt the IQ score of 70 should not be “written in stone.” Mr. Pescetta opined that the current bill was preferable without the proposed amendment because of the need for the hearing to determine if a defendant was mentally retarded. He also said that the test for raising the claim of retardation for a person should not be limited to one year for people already on death row.
Assemblyman Carpenter asked whom he could speak to about specific language in the bill. Chairman Anderson replied he could ask Mr. Pescetta, Ms. Lang, Committee Counsel, Vice Chairman Oceguera, or himself since they had been part of the interim subcommittee. Mr. Carpenter suggested a date be included in the first sentence of the bill or the trial could be delayed. Mr. Pescetta answered that the intent of that language in A.B. 15 was so the issue of mental retardation could be disposed of before, not after, a capital trial. Local rules of court generally had motion deadlines before trial. When a first‑degree murder case with notice of intent to seek the death penalty was filed, the court itself set deadlines for motion practice before the case went to trial. He would not object to having a date added into the language, but it was anticipated that the normal rules of court would determine when the motion would be considered timely.
Assemblyman Carpenter asked for clarification how subsections 4(a) and 5 of Section 1 worked together. He quoted subsection 5, wherein it stated, “…there is no privilege for any information or evidence provided to the prosecution or obtained by the prosecution pursuant to subsection 4;” it was stated in subsection 4(a) the defendant shall provide evidence to the prosecution.
Mr. Pescetta explained that when a motion had been made for a declaration for a hearing to find a person mentally retarded, the defense would need some information that that was true. Normally that information would be protected, for example, by attorney/client confidentiality. An attorney needed to give the court some indication prior to the hearing that his client was mentally retarded. A hearing would not be fair unless the prosecution had access to that information as well. A test by a professional would be covered by at least two claims of privilege, attorney/client, and psychotherapist/patient, and as part of the hearing, that information must be made available to the court and the prosecution. Those sections would make evidence that that might otherwise be protected by privilege be admissible by hearing.
Assemblyman Brown asked Mr. Pescetta about the “ex parte hearing in camera” language stipulated in Section 1, subsection 3, of A.B. 15. He assumed the defense attorney made a case before the judge and provided information to the prosecution. By sitting down with the judge before the trial, the defense would have the opportunity to tailor the information for the judge, perhaps limiting the information being provided to the prosecution.
Mr. Pescetta explained that section of A.B. 15 was controversial during last session. As a defense lawyer, one had privileged information from a client. At the point of litigation over whether a person was mentally retarded or not, the attorney would not want to turn over all information that the client might have provided. The intent of Section 1, subsection 3, was to put the defense information before the court and have the court determine, before it was disclosed and privileges lost to the prosecution, whatever information was relevant to the issue of retardation.
Mr. Brown said that some of the information could be relevant to the issue, things that might not manifest substandard intelligence. The hearing process, as set forth, would prevent that information from coming forward when it sounded like it should be considered. Mr. Pescetta said that it was the intent of the language to have the judge make the initial determination before the defense was put in the position, prior to trial, of turning over all their files to the prosecution. The hearing could only be accomplished in camera unless you wanted to rely on the defense to turn over the information.
Assemblyman Geddes asked if shaken baby syndrome (SBS) or blunt force trauma could cause mental retardation, and if an adult suffered trauma could they become mentally retarded at that point. Mr. Pescetta said that the constitutional construct that had come down from the United States Supreme Court in the Atkins case, retardation as it was defined by the DSM‑IV (Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition) and professional bodies, required a manifestation of the developmental disability before the age of 18. He knew of a man, who, when he was two years old, was involved in a train wreck and thrown a long distance. He said the man’s IQ was low to the extent that it was testable and that would fit into the general definition of retardation because the man suffered the brain insult during the developmental period. Mr. Pescetta said retardation was a disability in the development of the whole personality. Damage suffered as an adult that seriously compromised intellectual functioning was a slightly different category. The damage may render the individual incompetent or insane under the legal definition in the “M’Naghten Rule.” Effects of brain injury or schizophrenia happened later and took into account the already developed personality.
Chairman Anderson interjected that A.B. 15 was really aimed at people with a long history of retardation, not a victim of later trauma. Mrs. Angle asked Mr. Pescetta about the client he had referred to earlier who had been on death row for 14 years before anyone noticed he was retarded; she assumed that the client was guilty of murder with aggravating circumstances. She wanted to know if the client knew the nature and quality of his crime, did he fall under the “M’Naghten Rule,” and how many people on death row were retarded.
Chairman Anderson replied that the Committee would be hearing a bill draft request regarding the “M’Naghten Rule” this session. Mr. Pescetta answered the question in the affirmative, his client would not have satisfied the “M’Naghten Rule” test of insanity; he was mentally retarded. There were two people with mental retardation on death row with cases that were still pending.
Assemblyman Carpenter referred to page 3 at subsection 4, lines 34-39 of A.B. 15, where it stated that if a hearing determined a person was mentally retarded and could not receive a sentence of death, “the jury or the trial judge shall determine whether the defendant should be sentenced to life with the possibility of parole or life without the possibility of parole.” He had concerns that if a person committed a murder but could not be put to death because of retardation, he did not know why parole should be granted.
Mr. Pescetta clarified that the section Mr. Carpenter quoted listed the statutory penalties for all people convicted of first-degree murder. It would cause some concern if a special rule would be made for cases where the death penalty was sought and the defendant was later found to be retarded, where the only sentence that could be imposed was life without parole. The intent of the interim study committee was that all other available penalties would be available here.
Dr. W. Larry Williams, Ph.D., Associate Professor, Department of Psychology, University of Nevada, Reno, represented the American Civil Liberties Union (ACLU). He said he liked the draft of A.B. 15 and would encourage its support. Like the two previous speakers, he urged the Committee to not follow the IQ score of 70. He suggested that the legislation should include language such as, “a diagnosis of mental retardation from a licensed, qualified professional with extensive experience in mental retardation.” He explained that intelligence was not a “thing”; it was a word used to describe the current state of one’s repertoire of abilities. The original use for intelligence testing had first come about during World War I to determine the different proficiencies and skills of men to assign the best person for a job. As the testing developed over time, it began to sample a wide variety of general skills. If everyone in America would be tested, the scores would follow a normal distribution, or bell curve. That meant that 95 percent of all people tested would fall in the main, central area of the bell, and 2.5 percent would fall on either end of the tails of the bell. The notion of intelligence and its measures was a statistical notion, not an actual real thing. An IQ score of 100 meant that the abilities and skills demonstrated on that test were right at the mean of all people being tested. In statistics, when talking about the body of all possible people, one could divide the bell curve into six essential pieces, or standard deviations. A standard deviation was the average amount a score deviated from the mean, given all the scores. The two pieces of the curve right under the bell were one standard deviation on either side of the arithmetic mean that represented about 67 percent of the population. Two standard deviations, farther down the curve, represented about 95 percent of the population. The 2.4 percent at the bottom end of the IQ spectrum was where people with mental retardation scored, the same way geniuses were the 2.4 percent at the top with an IQ of 130 and above. Dr. Williams said intelligence tests were not accurate. If one were to consider the faults in the tests themselves, given by the most qualified administrator, the score would not be completely accurate, but would have a plus or minus 5 percent error rate. Dr. Williams would argue for a skilled professional who was licensed to give a diagnosis of mental retardation, because if the diagnosis was based just on intelligence, a licensed professional would be able to make the judgment, plus or minus 5 percent, so an IQ score of 71 would not be ruled out.
From the standpoint of a teacher, Chairman Anderson said he supported the testimony on A.B. 15 about school records being used in conjunction with other tests to identify a student with mental retardation.
Assemblywoman Angle asked Dr. Williams to reconcile the one percent of people with mental retardation incarcerated for life with the 2.4 percent of the population at the lower end of the IQ score. Dr. Williams responded that the 2.4 percent represented all forms of retardation. Using the IQ score of 70 and below, the majority of people with mental retardation would have an IQ near 70. The whole notion of intelligence had been under scrutiny from its inception. The AAMR had been working on the notion of intelligence being an ability to adapt to one’s environment. From the beginning, the definition of mental retardation included an academic test, plus assessments of how one functioned in an environment with day-to-day skills. One would need significant subnormality in two of the ten functional skill areas along with the IQ of 70 to qualify. What made the difference between someone who was severe or profoundly retarded and someone who was moderately or mildly retarded was the ability to make auditory discriminations together with visual discriminations, as found in a recent article published in the last issue of the American Journal of Retardation. A person with mental retardation could learn enough skills to “smile and get by,” appearing to be competent until asked the right questions.
Assemblyman Brown asked if the idea about two out of ten criteria for functional skills was accepted industry-wide. Dr. Williams answered in the affirmative. Mr. Brown asked if adaptive behavior was related to the acquisition of skills. Dr. Williams answered that the whole are of mental retardation and developmental disabilities was one of the least known areas around. He said people should not attempt to make a decision based on a technical measure rather than on a diagnosis from a professional.
Assemblyman Mortenson asked if people with scores in the 2.4 percent on the low side of the bell curve were designated as mentally incompetent. Dr. Williams replied yes, that would be the IQ of 70 and below. The great majority of those people would have IQ scores from 60-70. Mr. Mortenson wondered if a person could literally make an official designation that two standard deviations and below were mentally incompetent. Dr. Williams replied in the negative; as stated in the definition of the condition, mental retardation was a description, not a thing, which included an IQ score of 70 and below and was marked by significant dysfunction in two adaptive behavior areas that manifested before the age of 18.
Clark A. Peterson, Chief Deputy District Attorney, Clark County, submitted proposed amendment language (Exhibit E). As the capital case coordinator for Clark County, he had the position of being the prosecutor in the state of Nevada who had the most experience dealing with the litigation of the constitutional issues regarding the three-judge panel and issues of mental retardation. He did not oppose legislation in those areas. His practical experiences showed some pitfalls that might not be obvious when considering the bill. This bill presented a rebuttable presumption of mental retardation that was problematic; it did not apply just to capital cases, but to all first-degree murder cases, and was slightly different than what the United States Supreme Court had ruled in Atkins. The current bill invented new procedures, and he would rather use procedures that had already been legislated. His proposal tracked very closely the competence procedures already in place and added a safeguard that went beyond A.B. 15. The problem with the rebuttable presumption could be found in Section 1, subsection 6(c). If the defendant had an IQ of 70, that was a rebuttable presumption that he was mentally retarded. Mr. Peterson said that was an incredible pitfall because a defendant could knowingly use the active test to get that score of 70, even though not retarded, and then not cooperate with other doctors who wanted to examine him. As a practical matter, it was now an irrebuttable presumption; the state had no real opportunity to litigate this. Mr. Peterson did not want to pass a loophole for malingering; he wanted to find a fair and constitutional provision that allowed for the appropriate determination of mental retardation. Mr. Peterson recommended that the statute deal only with capital murder cases. The triggering event was when the state filed notice of intent to seek the death penalty. He felt that there needed to be a safety net, which A.B. 15 proposed be done pre-trial; his amendment gave the defense the option to handle the matter pre-trial or at the end of the case, and in the event of a capital conviction and a sentence of death, the court could make sure people who were mentally retarded were not executed. In Clark County over the last five years, only 5 people had been sentenced to death. What should happen, according to his proposal, was that if the matter of mental retardation was not raised pre-trial, the court could appoint doctors to review the case. The proposal did not leave that determination up to advocates and that was important because of the masking effect. The safeguard Mr. Peterson had proposed allowed the defense to make a strategic choice.
Vice Chairman Oceguera asked if Mr. Peterson had talked to the proponents of A.B. 15 about the amendment and why he had not proposed the change in bill language during the interim study. Mr. Peterson replied he had only been the capital case coordinator for Clark County less than a year, so he had not been involved with the hearings. A person who was not competent could not be tried, much less executed. He was only talking about those competent to stand trial and who were mentally retarded. Previously, the law said that if a person was competent to stand trial, he could receive the “ultimate punishment.” Mr. Peterson apologized for the lateness of his submission of the amendment language. He had sought input from the defense community in southern Nevada; the defense attorneys did not have strong opposition to the vast majority of the provisions he suggested. He had tried to be fair and constitutional with the language and had provided his amendment to Assemblywoman Leslie’s office as well.
Mr. Carpenter referred to Section 2, subsection 1, of the proposed amendment where it stated, “a defendant may, no later than ten days prior to trial, file a motion to declare that he was mentally retarded.” He was concerned about the trial being delayed; he would want to have the diagnosis of mental retardation done before the trial was set to begin.
Mr. Peterson said that was a concession for the defense. His clear preference would be to handle the issue well in advance of trial, but certain issues might not be presented until the eve of trial, and it would not be appropriate to disallow defense attorneys and their clients to raise the issue prior to trial. District court allowed ten days for the filing of pre-trial motions.
Mr. Mortenson asked for clarification of the comment made by Mr. Peterson about how a person who was competent to stand trial might avoid the death penalty because of incompetence. Mr. Peterson answered that, in a preliminary procedure called a competence determination, if defendants did not understand the charges against them and could not assist their counsel, which would make them incompetent to stand trial. That person would receive psychological care and not go to trial; some of those people might be mentally retarded. He was talking about the set of persons found competent to stand trial, but who had mental retardation. Mr. Mortenson said that sounded like an oxymoron; Mr. Peterson said he had struggled with that distinction for a long time. In previous law, there was no distinction.
Mrs. Angle asked Mr. Peterson to address the penalties listed in Section 4, subsection 3, of A.B. 15, and if he thought they were something that should be addressed when a defendant was found guilty of a capital crime, and if one should one have the possibility of parole. Mr. Peterson answered that when the state filed the notice of intent to seek the death penalty, a case was considered to be a capital case. The defense bar would then raise the Atkins issue, the issue of mental retardation. He proposed that a hearing be held, similar to the competence hearing, wherein the court appointed doctors and made the determination to find a defendant mentally retarded. Once this was decided, the court would strike the notice of intent to seek the death penalty, making it no longer a capital case.
Assemblyman Brown asked how Mr. Peterson felt about the view Mr. Pescetta had expressed on the ex parte review in camera. Mr. Peterson responded that Mr. Pescetta wanted an adversarial hearing about the finding of competency; he felt it was more appropriately done openly and by the court. In an adversarial setting, experts were hired and proceedings were not generally very cooperative. It would be more impartial and fair for the court to appoint experts rather than to use state-appointed experts. He did not like the in camera proceedings because the court would determine what was and was not relevant; there could be positive evidence that showed a person was not mentally retarded if the matter would be litigated fairly. Another reason he would like the competence statutes tracked was because the existing ones had already been legislated and litigated. A.B. 15 would create new, untested procedures.
Assemblyman Horne asked for clarification about procedural grounds and defense attorneys that chose to wait until after the trial for the determination of mental retardation if the possibility of death could be disposed of at the beginning of the hearing. Mr. Peterson answered that was why he had chosen to testify today, to give the Committee practical insight to these rules. It appeared strange to him for someone not to litigate that up front. For example, if he as a defense attorney had a client who was borderline retarded and did not know if the client would be found legally mentally retarded or not, if the hearing occurred prior to trial, the state would have documents, a preview of what might come out later during a trial. If it was determined the client was not retarded, the state could still raise all of its arguments during the penalty phase of trial at mitigation. If they raised the issue of mental retardation prior to trial and the court found the defendant to not be mentally retarded, they had shown all their evidence. Mr. Peterson guessed that the pre-trial determinations would be done in the cases where it was clear that the defendant was mentally retarded. Thomas Nevius had been removed from death row because the court found him to be mentally retarded, as was James Hill. Both were clear cases; in borderline cases there might be a strategic decision. As a prosecutor, he proposed an alternative for the defense. He mentioned that the state of Georgia had five processes for a case to work through before the matter of a defendant being mentally retarded was considered. Mr. Peterson wanted to avoid constitutional challenges that alleged someone was forced to raise the matter pre-trial.
Mr. Horne questioned the previous testimony about the current standards for individuals on death row that might be lacking. Mr. Peterson clarified that Nevada currently had competency procedures that were clearly understood. A.B. 15 would invent an entire new set of procedures for mental retardation; rather than invent new procedures, he asked why not mirror the already familiar competence procedures that had already been legislated and tested on appeal.
Chairman Anderson asserted that Nevada might be better to base its definition of mental retardation on the newest agreed-upon standard, such as from the AAMR, and not rely on an older definition that might have a greater chance of being thrown out of court and risk any criticism that might ensue. Mr. Peterson expounded that out of the 38 states in the United States that had the death penalty, 18 of them had enacted legislation regarding Atkins procedures. Each state used a different definition of mental retardation, but most were close to the AAMR standard and the DSM-IV. He felt the standard currently reflected in NRS 433.174, though without specific details, utilized the three areas of assessment for mental retardation, and the AAMR and DSM‑IV standards.
Chairman Anderson restated that 50 percent of the United States had adopted a different standard than Nevada; this might be a good time to update. He wondered how long Mr. Peterson had worked for the Clark County District Attorney and if he practiced in the area of death penalties. Mr. Peterson replied he had been with the Clark County District Attorney since 1995 and that he had been in the sexual assault unit before he became the capital case coordinator. He had tried numerous murder cases with the major violators unit and had handled all pre-trial litigation for all capital cases for the 64 inmates on death row in Clark County, as well as for the cases that were currently pending. Chairman Anderson queried if Mr. Peterson had consulted with Ben Graham, since he had participated in the interim study hearings. Mr. Peterson replied that he had met with Mr. Graham about his amendment and that he had reviewed transcripts from many of the subcommittee hearings. Chairman Anderson wished Mr. Peterson had presented his proposed amendment language in advance of the hearing. Mr. Peterson replied that he had felt it appropriate to show the amendment to Assemblywoman Leslie first, since she was primary sponsor of A.B. 15. Chairman Anderson agreed; he quizzed Mr. Peterson on his knowledge of the latest definitions of mental retardation. Mr. Peterson pointed out that the Atkins case, although it cited a particular definition, did not say that that was the definition that had to be adopted. It left broad discretion to the states to decide what standard to apply. His concern was that Nevada not use one standard for mental retardation for a criminal determination and another in the health code. The health code could be amended to incorporate the same definition into the criminal statutes.
Assemblyman Carpenter said he had additional questions for Mr. Peterson but would ask them at a later time. Vice Chairman Oceguera asked if Mr. Peterson would be available and Mr. Peterson responded in the affirmative. Mr. Peterson apologized again for not sending the amendment language to the Committee earlier.
Chairman Anderson pointed out that Ms. Combs had obtained the definition of mental retardation from the AAMR and it would be distributed (Exhibit F).
Ms. Kristin Erickson, Washoe County District Attorney, who represented the Nevada District Attorney’s Association, gave her support to A.B. 15 with the amendment by Mr. Peterson.
Dr. Richard Siegel, Ph.D., Professor of Political Science, University of Nevada, Reno, and President, American Civil Liberties Union—Nevada, introduced Ms. Lara Mijanovich, coordinator, Northern Nevada ACLU, and Mr. James Jackson, representative for the Nevada Attorneys for Criminal Justice, who would be working with him this session. Dr. Siegel spoke as a political scientist, not a lawyer; he did not know a lot about criminal procedure but knew about civil liberties and human rights. He made two points: the fundamental issue of not having the death penalty for a mentally retarded person was now settled law; and support for this outcome was as high as 8:1 from the states that surrounded Nevada. Dr. Siegel had been studying the Atkins ruling where it stated that the IQ of a retarded person could be from 70‑75. He felt the United States Supreme Court was not looking for that absolute threshold. When a district attorney wanted to try someone who was on the margin of being mentally retarded, that meant he wanted to risk spending between $1.5 and $2.5 million of public money to try to sentence the defendant, who might have an IQ of 70, 75, or 80, to death, especially since that person would not be executed in this state. The Ninth Circuit Court of Appeals was slow and careful about death penalty cases. The process in Nevada was quicker because of the lack of an intermediate court and a because of a lower percentage of reversals by the Nevada Supreme Court than many other state courts. He opined that prosecutors should not have so much leeway to risk so much money for absolutely no purpose. Dr. Siegel mentioned that prosecutors in the hearing for Mr. Nevius had argued that he was not mentally retarded. He would like to use the definition from the AAMR and a judgment from a professional that a person was mentally retarded. The judgment would affect how the judge and others would interpret everything else in the trial, as it should. He referred to remarks made by Mr. Mortenson on competency; he felt the “M’Naghten Rule” was absurd. He supported A.B. 15, as it was soundly thought out.
Reverend Chuck Durante, co-chairman of the Life, Peace, and Justice Commission for the Diocese of Reno, Nevada, and former member of the state bar, verbalized that he and the Catholic Church opposed the death penalty in all cases. He affirmed that all human life was sacred and must be respected; the dignity of every human person was innate and could not be lost or taken away. No one was the sum total of any single act performed. As humankind was not the author of life, so it could not be the author of death. Reverend Durante said if A.B. 15 was passed, Nevada would be in line with the decision made by the United States Supreme Court, along with the majority of states in the Union, and would correct what he believed to be an unconstitutional exercise of the state’s rights. Reverend Durante urged the Committee to move forward on A.B. 15, as it would stop the use of the absolute worst punishment against those who had a less culpable mind due to mental retardation. He believed such a law would be an important step toward recognizing the dignity of every human life, even the less capable. Ending the possibility of executing the mentally retarded helped to uphold the consistent ethic of life in all its forms and stages. Reverend Durante restated that he was opposed to the death penalty in every case. He said Pope John Paul II had called upon our country on numerous occasions to abolish the death penalty, as it was something that diminished the community and destroyed respect for life; the United States Conference of Catholic Bishops also held this opinion. Reverend Durante submitted a memorandum (Exhibit G), which further clarified his testimony.
Mr. V. Robert Payant, Executive Director, Nevada Catholic Conference, Diocese of Reno, Nevada, former President and Dean of the National Judicial College, and former trial and appellate judge in Michigan, said that in Michigan there was no death penalty, never had been a death penalty, and that the state had a substantially lesser homicide rate than Nevada. He agreed with Reverend Durante that the Catholic Church in Nevada was against the death penalty in any shape, style, or form. As long as Nevada had the death penalty, it should be as fair and just as possible; that included doing away with executing people with mental retardation. Mr. Payant said the Catholic Conference was in favor of all five current bills that concerned the death penalty (Exhibit H). He felt that A.B. 15 was extraordinarily good; the in camera proceedings, while different, were not unique, and had a good place in this legislation. Reverend Durante clarified that his memo also addressed A.B. 13.
The Reverend Dr. Phil Hausknecht, President, Lutheran Advocacy Ministry in Nevada, summarized his written statement (Exhibit I). He said the Lutheran Advocacy Ministry was a member of the Religious Alliance in Nevada (RAIN). The Lutheran Church was concerned about the death penalty in all cases. Believing in the sanctity of life, he said the Church would definitely support A.B. 15 since it would abolish use of the death penalty for the mentally retarded. Reverend Hausknecht explained the Lutheran Church was in ministry with people affected by this violent crime and helped them to gain closure. They felt forgiveness was the answer and were opposed to the death penalty; A.B. 15 would be a step in the right direction. The death penalty argument had changed since Governor Ryan of Illinois said that the system was broken and not fair; the arguments this morning about how to determine whether a person was mentally retarded or not was an example of this. He did not know if that could ever be determined fairly. Reverend Hausknecht urged the Committee to pass A.B. 15.
Mr. Larry D. Struve, Legislative Advocate, Religious Alliance in Nevada (RAIN), Reno, Nevada, distributed a memo that outlined the five judicatories that comprised RAIN (Exhibit J) and their views. The coalition was in strong support to A.B. 15 as it was currently written. He wanted to make clear that the people the bill referred to committed horrible crimes, but as mentally retarded, they opened a new era in how to impose capital punishment. It appeared to be unjust to put people with mental retardation to death not withstanding the fact they had committed some horrible crimes. Justice and fairness with the most serious penalty that society could mete out was the heart of all the statements from the faith communities. The mentally retarded were as deserving of justice as the rest of society. RAIN stood in support of this bill as it was viewed as a limited abolition bill. Approximately thirty-two other major religious communities were in support of A.B. 15, such as Baptist, Jewish, and Latter Day Saints groups.
Howard Brooks, President, Nevada Attorneys for Criminal Justice (NACJ), said he was also a public defender for Clark County. He did not want to discuss the issues of competency, insanity, and mental retardation; he said he would send a short summary (Exhibit K) to the Committee that might eliminate the entire issue. Mr. Brooks said that he had worked with Mr. Peterson for many years and that Mr. Peterson was fair, honest, intelligent, and articulate, but he disagreed with him completely in his characterization of how the competency statute was used. NRS 178.415 defined the competency procedure. As a public defender for 12 years, Mr. Brooks had never seen a competency hearing. No one used the competency procedure because judges, prosecutors, and defense attorneys hated it. They always avoided using that procedure, and he would strongly recommend that the Committee avoid it as well. The procedure listed in the bill draft was good and fair, one that the state and defense would be very comfortable with.
Assemblywoman Buckley asked about the in camera provision in the bill. Mr. Brooks answered that he would have his client tested and would begin the proceedings to determine if he was mentally retarded. Then he would file a motion for the hearing, have an ex parte meeting with the judge, and tell the judge what was part of the case and what he would not want disclosed to the state. The ex parte hearing would determine what information would be given to the state. If the case was not strong, the judge would hand over to the prosecution all material pertinent to the issue of mental retardation. Ms. Buckley asked why not look at all the information, pick the best, file a motion, and let the prosecution make their case. Mr. Brooks felt that would be a better procedure.
Assemblyman Brown appreciated the candid response from Mr. Brooks, and asked how Mr. Brooks would get around NRS 178.415. Mr. Brooks explained that if a client was clearly psychotic, he would order a psychological report. If the report came back and stated the client was not competent to participate in the process, Mr. Brooks would order another psychological report. If he got two reports that stated the client was not competent to stand trial, the district attorneys and public defenders had an agreement whereby they would go to court, show the judge the two psychological tests, and refer the client to a psychological treatment center. Avoiding NRS 178.415 was done informally because nobody liked surrendering control to the court. Assemblyman Brown asked if Mr. Brooks would be satisfied with doing away with the entire ex parte in camera hearing. Mr. Brooks replied he would be satisfied without that provision.
Assemblyman Carpenter inquired if the person was diagnosed with mental retardation, would the situation be first-degree murder and life without parole, or life with parole. Mr. Carpenter had concerns about paroling a person who had had problems since childhood, but if he murdered someone, it would be taking a chance to let him out on parole. Mr. Brooks said that current law allowed a person convicted of first-degree murder to receive one of three sentences: life with parole, life without parole, or death. According to A.B. 15, a finding of mental retardation would remove the option of the death sentence. If the evidence presented at trial showed the client to be dangerous, the state could argue to the jury during the penalty phase that they should not consider parole. Most murder cases included an allegation of use of a deadly weapon, so the difference would be life without the possibility of parole, or life with parole after 40 years.
Chairman Anderson added that the language was typical for those types of offenses. Mr. Carpenter felt that if a person with mental retardation committed a heinous crime they should not be eligible for parole. Mr. Brooks replied that the jury had the discretion to give a person they believed to be dangerous life without parole. Chairman Anderson said that this issue could be discussed during the upcoming work session; the amendment submitted by Mr. Peterson would be considered, and anyone else who wanted to turn in additional amendments needed to submit them to Ms. Combs by February 20, 2003. Before he closed the hearing, Chairman Anderson asked Mr. Peterson if he had a point he felt needed to be considered for the record.
Mr. Peterson shared he did not want to accept the characterization of Mr. Brooks about competency hearings being disliked. Nevada was very unique with a small, professional, and cordial bar of criminal attorneys, both prosecutors and defense attorneys, who worked together daily. That camaraderie allowed them do to some things informally; because of the trust he had for defense attorneys and familiarity with the doctors, if he knew a client was not competent, Mr. Peterson would not demand a hearing from a judge. He could, but would not, and would focus on the end reports. The system was often bypassed because of the cordiality that existed between members of the bar.
Chairman Anderson closed the hearing on A.B. 15 and opened the hearing on A.B. 13.
Assembly Bill 13: Eliminates panel of judges in certain penalty hearings in which death penalty is sought and requires district attorneys and district courts to report certain information concerning certain homicides to Supreme Court. (BDR 14-197)
Chairman Anderson introduced the bill and provided background information for new Committee members. Chairman Anderson noted that the bill request had come about as a result of the Assembly Concurrent Resolution 3 of the Seventy-first Legislative Session death penalty interim study and had two major components, one related to three-judge panels and the other related to statistical reporting. Currently, three-judge panels were used during capital sentencing after a defendant had already been convicted of first-degree murder and entered a guilty plea, or if the sentencing jury was unable to reach a unanimous verdict. Section 1 of A.B. 13 proposed to eliminate three-judge panels only in cases where a jury was unable to reach a unanimous verdict; a trial judge would then sentence the defendant to life in prison without parole or impanel a new jury. The A.C.R. 3 subcommittee had adopted this recommendation prior to the Ring v. Arizona ruling of the United States Supreme Court. The interim subcommittee received substantial testimony that the use of three-judge panels might contribute to higher instances of racial bias in Nevada.
Chairman Anderson said the second component of A.B. 13 addressed whether the current death penalty system was prejudiced against certain defendants. Section 3 would require the district attorney to report to the Nevada Supreme Court statistical information on defendants and victims, such as age, sex, and race, along with aspects of charges brought against a defendant and his trial. Sections 4 through 6 required the district court to submit to the Nevada Supreme Court a report specific to the trial and procedural aspects for each conviction of first-degree murder. Section 7 of A.B. 13 required the Nevada Supreme Court to submit a biennial report that contained information gleaned from the district attorneys and district courts to the Legislature.
Chairman Anderson stressed that the requirements for reporting had been unanimously approved by the subcommittee and were a starting point for the collection and analysis of data since there was a substantial lack of statistical evidence and reporting in Nevada. These procedures would lay the foundation for closer examination of any potential bias in the way the death penalty was administered. The Administrative Office of the Court could also use the data to track the workload of the courts in Nevada and cite where additional judges needed to be hired.
Michael Pescetta, a Las Vegas-based attorney, testified on his own behalf and not on behalf of the Federal Public Defender. He restated that A.B. 13 was drafted before the United States Supreme Court ruled on Ring v. Arizona. Mr. Pescetta explained that the provision for three-judge panels was in current statute for situations where a jury was hung during a penalty phase. He explained a three-judge panel consisted of a trial judge and two judges from other districts in the state. This was a continuing problem with using three‑judge panels. For a case in Clark County, the three-judge panel consisted of the trial judge and perhaps a judge who was elected by the people in Elko County, or by the people in Lander County. It was often a problem using judges from other districts that had no ties to Clark County. There was a very high rate of imposition of the death penalty by a three-judge panel, between 75 percent and 80 percent.
Chairman Anderson interrupted Mr. Pescetta; Mr. Carpenter needed to make a comment.
Assemblyman Carpenter said that Mr. Pescetta did not need to pick on the judges in Elko; he thought that they were really fair.
Mr. Pescetta withdrew his remark and said Senator McGinness had the same concern. The difficulty with this bill, he continued, was that it changed the three-judge panel proceeding. Under Ring v. Arizona, a jury was required to find all of the elements of capital eligibility under the Sixth Amendment of the United States Constitution. In Nevada, those elements were the first-degree murder conviction, as stated in NRS 200.030(4); the existence of statutory aggravating factors; and that the aggravating factors outweighed the mitigating factors. In a case decided in December 2002, the Nevada Supreme Court held that those factors were elements of capital eligibility. Now the guilty plea cases had to be considered in the context of A.B. 13. If one pled guilty to first‑degree murder, one admitted to the elements of the charge and waived a first-degree murder jury trial. One was not, however, pleading guilty to or waiving the right to a jury trial in terms of capital eligibility under NRS 200.030(4). Mr. Pescetta believed that A.B. 13 needed amending in some form to take into account the guilty plea cases. The Nevada Supreme Court had uniformly rejected all of the constitutional objections to the use of the three-judge panel. No federal court had ever ruled on federal constitutional objections that had been raised about this procedure. Those claims had not been litigated to a decision in federal court. Mr. Pescetta felt the solution to the problem of the three-judge panel would be to eliminate it altogether and provide for a penalty jury. In the event the prosecution could not convince the trial jury that the death sentence should be imposed, there should be a default sentence of life without the possibility of parole.
Mr. Pescetta continued that Section 3 of A.B. 13 was the reporting provision that required the district attorney to file a report of statistical data with the Nevada Supreme Court to form a statistical picture of how the death penalty was imposed in Nevada and derive conclusions about its fairness. He said that Nevada could currently generate this type of information for the cases on death row, but it was time-consuming and difficult for cases that had already passed through the system. The question of fairness was how people on death row were selected from those convicted of first-degree murder and not sentenced to death. That lack of information made it difficult for anyone to account for the disparities seen on death row in Nevada. Forty percent of the population on death row was African-American; no one could explain that disparity. Prosecutors asserted that no racial discrimination was being practiced, but if the cases were examined, there had to be some effect that had resulted in that 40 percent (Exhibit L). The statistical data kept by the Federal Bureau of Investigation (FBI), by the United States Department of Justice, and by the Bureau of Justice Statistics, documented that the largest group of murder victims in Nevada was white males; the second largest group of murder victims was African-American males. On death row in Nevada, there were currently 83 people; of those, the number of people who had killed an African-American male was 5, and they were also African-American. He said that that kind of disparity would not able to be explained rationally to the citizens of the state without a statistical picture, so a rational assessment could be made why an individual like Mr. Strohmeyer in Clark County, who had four potential aggravating factors and killed a small African-American child in the course of a sexual assault had negotiated a plea of life without parole. Mr. Pescetta said that relatively routine felony murder cases were vigorously prosecuted and the death penalty was sought. There might be no conscious discrimination involved, but the lack of statistical data impaired the ability to make any rational arguments.
Mr. Pescetta said Section 6 of A.B. 13, where trial courts had to report on all murder cases, had originated from a suggestion that the trial court reenact proportionality reviews by the Nevada Supreme Court. He said the subcommittee had suggested the Nevada Supreme Court itself adopt proportionality review.
Chairman Anderson reminded the Committee that the United States Supreme Court ruled in Ring v. Arizona that a judge who presided without a jury might not determine the aggravating factors necessary to impose death penalties. The Nevada Supreme Court interpreted that ruling to mean that the three-judge panel may not determine aggravating factors, so that section of the law needed to be changed.
Assemblyman Horne asked Mr. Pescetta to explain how the three-judge panel was impaneled in Nevada. He understood that the judge who presided at the trial would be present, and the other two judges were from other districts.
Mr. Pescetta explained that when there was a hung jury or a plea of guilt, the presiding trial judge notified the Nevada Supreme Court of that situation, indicating the need for a three-judge panel. The Nevada Supreme Court, in a procedure that had not previously been open to inspection until recently, chose two judges from other districts in ways that were unknown, because it had never been disclosed. It was his theory that they relied on judges to volunteer, rather than rotate them, which might make those panels slightly more prone to seek a death penalty sentence. The judges sat as a body and heard the penalty hearing, then voted on what sentence to impose. A sentence of death could only be imposed by a unanimous vote of all three judges; a sentence of less than death could be imposed by a majority vote. One might assume that more sentences would be for less than death, rather than the current death penalty rate of 70-80 percent. Mr. Pescetta said it had been suggested that the composition of the three-judge panel made a significant difference in the penalty imposed. That panel would usually return death verdicts in about 75-80 percent of the cases when a three-judge panel was all white. In a rare case where the judge on the panel was African-American—there were only two such judges in Nevada—those panels imposed death only 20 percent of the time and sentences less than death 80 percent of the time.
The Nevada Supreme Court had now implemented a computerized program to select the other two judges at random, although the way the program was instituted, it included all the judges already chosen multiple times for previous panels. Some district judges might have participated on four three-judge panel proceedings and voted for death in every one. Mr. Horne asked if the two judges other than the one who presided over the trial were from other jurisdictions. Mr. Pescetta answered in the affirmative; if one was in Clark County and was not in front of one of the two judges that were African‑American, one could never have an African-American judge on the panel, because the selection of judges had to be from two other, different districts.
Vice Chairman Oceguera asked Mr. Pescetta to comment on the Dodson case, where at the guilt phase of the trial the defendant had entered a plea of guilt. Mr. Pescetta said during the penalty phase, the defendant claimed that he had the right to sentencing by a jury, and a three-judge panel was impaneled. This was after the recent ruling by the United States Supreme Court. Mr. Pescetta further explained that the difficulty in the Dodson case was at the point where Mr. Dodson pled guilty; the only statutory mechanism for imposing sentence was the three-judge panel provision. As he understood it, Mr. Dodson asked to be sentenced by a three-judge panel, but the three-judge panel could not impose a sentence of death under Ring v. Arizona. Neither the court nor the panel could devise a procedure for sentencing Mr. Dodson that was authorized by current statute; therefore, a jury could not sentence him. The three-judge panel faced the prospect of not being able to sentence Mr. Dodson to death and, rather than give up the opportunity to execute him, refused to accept his guilty plea. Mr. Pescetta said Mr. Dodson had entered a plea of guilt and asked to be sentenced by the only sentencing body that was currently recognized under Nevada law, but now, under Ring v. Arizona, they could not impose the death penalty. Solely in order to preserve the death penalty, the three-judge panel had rejected the guilty plea. The case was in limbo at this point.
Vice Chairman Oceguera asserted that ultimately Mr. Dodson had to go back to a jury trial for the guilt phase; Mr. Pescetta said that the proceedings had yet to go forward. The case was pending until attorneys knew what occurred with A.B. 13 this session.
Chairman Anderson asked Mr. Pescetta to comment about procedures in other states that used a separate penalty jury compared with the unique three-judge panel in Nevada. Mr. Pescetta agreed; other states had other panel proceedings, but Nevada was the only state with provision for the three-judge panel reserved for hung juries and pleas of guilt. When other states had a non‑jury sentencing mechanism, it was for all types of crimes. Chairman Anderson asked if the composition of a hung jury made a difference during a capital murder case. Mr. Pescetta said that there was no difference if one or more jurors were not in agreement. The uniqueness of Nevada was illustrated by a case that was now pending in the Nevada Supreme Court, wherein it was alleged that the jury had hung between life with parole and life without parole; a three-judge panel had been impaneled and they imposed death. A.B. 13 would address this feature, but the terms of the pleas of guilt would have to be addressed. Chairman Anderson voiced that this was just the penalty phase; the innocence or guilt of a defendant was not in question. Mr. Pescetta said that the situation only arose after a jury had rendered a guilty verdict, or plea of guilt entered. Chairman Anderson qualified that pending appeal of the first jury trial, which might bring forth additional factors, the court no longer said that the defendant was innocent, because he had had a jury trial in which he was deemed guilty. Mr. Pescetta reiterated it was either by plea of guilt or by jury verdict the defendant had been found guilty of first-degree murder; the question now was how to proceed.
JoNell Thomas, American Civil Liberties Union, and Nevada Attorneys for Criminal Justice, Las Vegas, Nevada, had many concerns about the three-judge panel system. She mentioned she had represented Dorian Daniel at trial, a case Mr. Pescetta had made reference to in his testimony. It was her belief, although never firmly established on the record, that that jury had been split between granting life with parole and life without parole. The judge had declared the jury hung and a three-judge panel had been impaneled. The defense team raised a host of challenges to the three-judge panel, one being the constitutional issue from the United States Supreme Court. The three-judge panel in that case had returned the death penalty, which sentence was now being challenged on appeal. Ms. Thomas wished that there were such a thing as a negative fiscal note indication, a place where money could be saved for both county and state. She believed that in the example suggested by Mr. Pescetta if a jury was hung, the state would have had a full and fair opportunity to try someone, obtain the death penalty, and had a jury that was willing and able to impose the death penalty, but was unable to do so, the fiscally responsible solution would have been to impose a sentence less than death. On a plea of guilt, she said it made no sense to make a defendant go through a two-or three-week trial to establish guilt when they were willing to plead guilty, simply for the purpose of giving that person a jury trial on the penalty issue. Ms. Thomas felt that there should be a mechanism that allowed a person to take responsibility for what had happened if that was his desire to do so, and to still be given a jury of peers to make this most important decision. She supported the statistical data provision of A.B. 13.
Dr. Siegel spoke about Section 6 of A.B. 13 and said what was learned most convincingly from three studies done in Illinois, Connecticut, and Maryland was the significance of the race of the victim. Historically in the South, neither a white person nor a black person was ever convicted for killing a black person. He said it was the race of the victim that was at the heart of racial discrimination in cases of capital punishment. Nevada probably did not have as bad a pattern as in Southern states; Maryland had an egregious pattern. The ACLU wanted that data, and needed it to check the patterns to determine whether prosecutors chose the penalty of death based on the race of the victim. He said he liked to say that there were two myths in Nevada: the judicial system was not political, and the judicial system was not racially biased.
Elmer R. Rusco, Nevada Coalition Against the Death Penalty, Reno, Nevada, said he had spent several decades studying race and law in Nevada, and he was convinced that one of the major objections to the death penalty was that it was biased against people of color, primarily black people everywhere, including in Nevada, but the resistance to accept that fact was great. He noted how Mr. Pescetta said 40 percent of death row inmates were black, seven times the proportion of the state’s black population. He said that while it could be that black people committed seven times as many heinous crimes, he did not believe it. Mr. Rusco referred to the article “Racial Disparities in the American Criminal Justice System” (Exhibit M). There was resistance to interpreting statistics that would indicate racial bias. The prosecutors before the interim committee routinely said that there was no racial discrimination because there was no conscious decision to treat black defendants or victims separately than anyone else.
Mr. Rusco said that racial prejudice was not an “either/or” thing; it was not a case of a few people who were perfectly racially prejudiced and every one else was not prejudiced. Instead, he believed there were complexes of ideas along a continuum that had implications, either consciously or unconsciously, in the area of race. The worst problems came from those complexes of ideas, which people believed to be true and which had racial implications, such as the idea that black men were more dangerous and more likely to be violent than white men. There was experimental evidence that attitudes like this had an impact. Mr. Rusco made reference to a recent study profiled in the New York Times (Exhibit N), in which people were asked to play a video game and make split‑second decisions about whether black or white male figures were holding guns. The study showed that people were more than likely to conclude mistakenly that the black men were armed and shoot them. It was not a conscious, deliberate decision, but came from the stereotype that black males were dangerous. Mr. Rusco said that A.B. 13 was one of the most important bills that had come out of the interim subcommittee because it would provide statistical information. He was confident that information gathered would show racial disparities; it only needed to be interpreted and understood.
Chairman Anderson informed the Committee about a landmark study Mr. Rusco had done on voting profiles, and how Mr. Rusco had raised his level of understanding beyond measure. Assemblyman Geddes asked if the pattern included other racial classes on death row. Mr. Rusco answered that it showed up to some extent; over 50 percent of the people on death row were from racial minorities. The United States Census Bureau did not consider Hispanics to be a racial category; they were included with Caucasians.
Mr. Clark Peterson, on behalf of the Clark County District Attorney, provided amendment language (Exhibit O) that he felt was more constitutional than the abolition of the three-judge panel. Prosecutors currently had to give statistics on all capital convictions. A.B. 13 contained language that concerned keeping statistics from all murder cases. He would support keeping records if it helped to sort out problems in the administration of justice regarding the “ultimate sanction.” He commended the Illinois commission that had spent two years studying the death penalty.
Rather than doing away with the three-judge panel entirely, Mr. Peterson proposed to give the defendant the choice between going before a jury or a three-judge panel at all occasions: after a jury trial for first-degree murder; after a plea of guilt; if the sentence was overturned on appeal; and if the sentencing jury was hung. In his mind, there was nothing more constitutional than choice. Mr. Peterson was concerned that if the three-judge panel was completely abolished, defendants would probably file a challenge that that option was no longer available. A three-judge panel consisted of judges who had seen a large number of murder trials and had an idea about proportionality. A jury might only see one murder trial in their lives; they had no concept of the comparative nature of cases. A prosecutor should allow the defendant to “forum shop” because, he quoted Stewart Bell, former Clark County District Attorney, “If our case is a death case, it is a death case no matter who we bring it in front of.” It was not up to district attorneys to decide where a hearing should be held. However, if a defendant felt he would be treated more fairly in front of one body instead of another, Mr. Peterson thought the law should let him choose it.
Mr. Peterson submitted an amendment to A.B. 13 because he felt that what was often referred to as the “one and done” provision was disturbing. “One and done” meant the sentencing jury heard the case, and if they hung, the sentence defaulted to life without the possibility of parole. That change was substantial from the way the current law read. He recalled the case of Dante Johnson, a defendant charged with a triple homicide who was convicted beyond a reasonable doubt at trial by DNA evidence. At the penalty phase of the trial, the jury could not reach an agreement in favor of the death penalty; one juror changed the entire view. The state would not be able to seek the death penalty again against Dante Johnson if A.B. 13 passed in its current form. Mr. Peterson said the “one and done” provision was dangerous, something prosecutors already took into account. He was handling the case on appeal that Ms. Thomas had mentioned earlier, and the jury was split three ways: some wanted death, some wanted life without parole, one person wanted life with the possibility of parole. He found the record did not support Ms. Thomas’ notion of a split decision where death was not an option. Eliminating the “one and done” provision was problematic; the majority of states that had the death penalty did not have the “one and done” provision. Mr. Peterson was in opposition to A.B. 13 as drafted and said it was a more constitutional solution to allow the choice between those two measures.
Assemblyman Horne said it seemed to be a very small exception, over the course of many types of capital offenses, when a defendant wanted a three-judge panel. For example, a jury of peers convicted a defendant and that same jury found him guilty. Mr. Horne wondered why, if one person could not make the determination that death was an appropriate sentence, a three-judge panel would be brought in to make that decision for that one juror. Mr. Horne did not see the need for the three-judge panel in that context for that very small percentage.
Mr. Peterson agreed to an extent; the three-judge panel should not be the tiebreaker solution. Under his proposed amendment, if a defendant had a hung jury, he did not have to go to a three-judge panel; he could make the choice to go to another jury. A small number of people might want that choice. Mr. Horne brought up statistics mentioned by Mr. Pescetta that showed a clear disparity for the racial composition of the three-judge panel; it was an enormous flaw. Mr. Peterson agreed. The death sentence rate of three-judge panels was something that needed to be kept in context. Currently, the only time the three-judge panel was to arise was during the sentencing phase when the jury was hung, or at a plea of guilt. Mr. Peterson said if the case was hung during the penalty phase in favor of death, the case was so close to death sentence already before a three-judge panel heard it no one should be surprised that the panel did find for death. Many defendants who went to trial, were convicted of first-degree murder, and received the death penalty were offered life without the possibility of parole and did not want to accept it. Zane Floyd, who had gunned down four victims in an Albertsons, was not offered that choice.
Mr. Horne questioned giving the defendant a choice for another sentencing jury. As he read the statute, he wondered that that choice was necessarily that of the defendant. It seemed costly and inefficient if one jury could not make a determination to allow for another trial. It seemed unfair to use a second jury, one that had possibly been exposed to specifics of the trial from the media.
Mr. Peterson said it was like a trial, where hypothetical jury after jury could hang; theoretically, that situation did not happen. If a trial jury hung at the first trial and again at the second, then a deal would be cut. For sentencing, he thought the same dynamic would occur. The capital system was costly; he would not be comfortable having it any other way. He asked were it cheaper to execute people, should cost control the participants in a death penalty situation. He would say no; if it cost a little more money to ensure the rights of the defendants, he was all for it.
Chairman Anderson remarked that Mr. Peterson should have been in front of the Committee on a prior occasion when testimony had been heard for another piece of legislation when that very question arose. Mr. Peterson apologized that he had not been present on that occasion; he had recently been arguing in front of the Nevada Supreme Court.
Chairman Anderson announced that momentarily he would surrender the chair to Vice Chairman Oceguera, as he needed to attend another meeting. He cautioned everyone to be brief with their statements in order to hear A.B. 17 before the meeting was over.
Assemblyman Conklin had concerns about the “one and done” provision. If a person was convicted at trial of first-degree murder in a capital case, and the jury was hung, what they were discussing was that it became life without the possibility of parole. If the jury was hung, what Mr. Peterson wanted was a retrial, and the person had the option of a trial by jury or a three-judge panel. Mr. Conklin asked what reasonable individual and defense team would want a three-judge panel, and for hung juries, how many retrials would a defendant be allowed. If there was any reason for doubt for a death sentence, he said that person should not have death for the sentence.
Mr. Peterson understood his concern. In cases like that of Dante Johnson, a “rogue juror” hung up the sentence for the death penalty. The people of the state of Nevada had an interest in the penalty hearings being appropriate; if the jury was hung, another function should be utilized. He said if a “one and done” provision was enacted, people like Dante Johnson, who should have received the death penalty, might escape it.
Assemblyman Brown wondered if Mr. Peterson had any statistics to share with the Committee on the number of capital cases that went to trial that ended up being hung, and of those that had a second penalty phase with a jury, if they were typically resolved at that point. Mr. Peterson began to answer that there were hundreds of first-degree murder cases. Chairman Anderson interjected that Mr. Peterson was new to his position, so any information he provided would be anecdotal, and that was the purpose for Sections 3-7 of A.B. 13: to gather that type of data. Mr. Peterson said he could provide what he had; Clark County had only recently begun keeping records on a few criteria. Right now there was a death penalty review committee; on potential death penalty cases, that information was presented to the committee and they would file the notice of intent to seek death. He believed that 152 cases in the last two years had been presented to the review committee and about half of those had been approved as death penalty cases. In the past five years, there had only been five capital sentences in Clark County. Mr. Brown asked about the size of the review committee; Mr. Peterson answered it was reasonably small, consisting of the elected District Attorney, the chief criminal deputy, the head of the appellate department, the capital case coordinator, the assistant chief, and two or more senior trial deputies.
Chairman Anderson said that he had a great deal of information about this topic if Mr. Brown was interested. He distributed a memo (Exhibit P) from Amy Coffee, a Clark County Deputy Public Defender, who represented herself in opposition to A.B. 13 as it was written.
Launa Hall, Student, Department of Social Work, University of Nevada, Las Vegas, testified that she was in support of the bill, specifically Sections 3‑7, which required statistical reporting. She said it was very important to gather information to determine whether or not the system was broken. Chairman Anderson thanked Ms. Hall for her written (Exhibit Q) and verbal testimony.
Benjamin Blinn, Citizen, said the right of a trial before a jury of peers was a constitutional right; usurping that would volunteer a committee of judges to take away the right of the people to decide. The sentence of death was continually referred to as the worst sentence. As an ex‑felon, he said the flaw of a sentence of death vs. life without parole was if an inmate was wrongfully convicted and DNA evidence proved his innocence, the court could give his life back to him, but could not if it had killed him. There was a higher rate of suicides in prison than of execution. Mr. Blinn said all of the ministers, or “moral men,” who had testified earlier could not serve on a jury since they did not believe in the death penalty; that made the jury skewed. He said Americans of African, Hispanic, or Native American descent, or WASPS (White Anglo-Saxon Protestants), could not be on that jury of peers. Mr. Blinn felt that because a juror was persuaded there was a reasonable doubt, he should not be called a rogue. Chairman Anderson admonished Mr. Blinn to please keep his voice down. Mr. Blinn apologized; he said he was just excited to speak to these issues in front of the Committee when the jurors were called rogues because they voted against the wishes of the prosecution. He wondered where all the victims, like Chairman Anderson, who had a death in the family, were. The hardest sentence in prison meant that there was no hope of getting out. The courts should save the state some money and use it for education, instead of the $2 billion and rising prison budget. Since the courts would not be executing people with mental retardation, maybe that would cut the budget a bit.
Howard Brooks cited an article from the Las Vegas Review Journal (Exhibit R) in which Clark County District Attorney Stewart Bell had said he sought the death penalty where it was appropriate and where he believed he could get it. He said it was easier to get the death sentence against a black defendant than against a white defendant; it was even easier if there was an all-white jury. Out of the 65 murder cases he had handled, he had taken 12 to trial: 2 were death penalty cases, both against black men, and in both cases the state had disallowed every black candidate from the jury. He was strongly in favor of statistical reporting. He acknowledged the powerful presentation of Mr. Peterson, but still disagreed about three-judge panels. Three-judge panels returned death penalty sentences 75-80 percent of the time. For a longer exposition on the topic, he referred the Committee to read the dissent by Justice Young in the case of Beets v. State. The Legislature should make capital cases simpler for the future and do away with three-judge panels altogether. Mr. Brooks perceived that Mr. Peterson misstated the default provision in A.B. 13. There was no mandatory default provision in the bill; the bill said that the judge had the discretion to either enter a sentence of life without parole or impanel a new jury. With this bill, he pointed out the likelihood of impaneling a new jury in most cases. He said he would like to see a default provision included in the language.
Mr. Brooks recalled that when the sentence of death came back for Dante Johnson, the jury listed as a mitigator the fact that they had residual doubt that he was the actual shooter. All three of his co-defendants, one of whom could have been the actual shooter, received sentences of life without the possibility of parole. While Mr. Peterson said there had been five people over the last five years that got sentences of death, Mr. Brooks clarified that in 1996, six people in Clark County had received the death sentence. From 1995‑1998 “they were really putting them away.” He urged the Committee to pass A.B. 13 without amendments. Chairman Anderson asked if Mr. Brooks would consider supporting any amendments; Mr. Brooks admitted there were some he would not oppose. Chairman Anderson asked Mr. Pescetta to return to the witness table; Mr. Pescetta said that something had to be done to the bill to account for the guilty plea cases, and that would have to be an amendment because of Ring v. Arizona and the Dante Johnson case.
Chairman Anderson closed the hearing on A.B. 13. He indicated to Mr. Brooks to provide the material relative to his testimony on both A.B. 15 as well as A.B. 13, to be included in the record.
Chairman Anderson introduced two bill draft requests:
· BDR 3-267 - Makes various changes to provision governing electronic mail that includes advertisement. (A.B. 93)
· BDR 8-271 - Makes various changes to requirements governing filing and form of certain documents. (A.B. 92)
ASSEMBLYWOMAN OHRENSCHALL MOVED FOR INTRODUCTION OF BDR 3-267 AND BDR 8-271.
ASSEMBLYMAN CONKLIN SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Buckley and Mr. Mortenson were not present for the vote.)
Chairman Anderson left the Committee room to attend another hearing. Vice Chairman Oceguera opened the hearing on A.B. 17.
Assembly Bill 17: Makes various changes concerning defense in cases involving first degree murder. (BDR 1-201)
Ms. JoNell Thomas appeared as attorney in private practice who handled capital cases and did a great deal of post-conviction work; as a representative of the ACLU; and as a member of the Nevada Attorneys for Criminal Justice. She stated that she supported A.B. 17 in almost its entirety; she urged the Committee to amend it by providing for a fee to lawyers in capital cases of $125 an hour instead of $75 an hour. From her testimony that had been heard two days prior, it appeared that the last time the hourly rate had been changed was 1991; in her previous testimony, she misstated that it was 1987. In 1991, the equivalent of $75 would now be around $55. It was a decent amount to be paid if one did not take into account paying for a legal secretary, office rent, supplies, computer access, legal books, business taxes, and a host of other expenses that attorneys in private practice incurred. She believed that $125 was a fair amount to request; federal court-appointed attorneys in capital cases were paid that amount. It was far less than what attorneys in private practice would charge to other clients, far less than what counties paid civil attorneys, and would be an amount that would attract the best of criminal defense attorneys so there could be good, strong representation, and some incentive to take capital public defender cases. Right now it was a hardship to take capital cases; attorneys took them because of their commitment to the clients because of their opposition to the death penalty, and because of their desire for their clients to receive a fair trial. It became more and more difficult, and quality attorneys might drop off the court-appointed list.
Vice Chairman Oceguera asked Ms. Thomas if her suggestion was a recent development or had she suggested it during the interim subcommittee hearings. She apologized that she did not remember, but did not think that she had. Vice Chairman Oceguera closed the hearing on A.B. 17, and adjourned the meeting at 12:26 p.m.
Carrie Lee
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: