MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
March 17, 2003
The Committee on Judiciarywas called to order at 9:08 a.m., on Monday, March 17, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. 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.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
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
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department, Nevada Sheriff’s and Chief’s Association, Las Vegas, Nevada
Don L. Means, Assistant Sheriff, Washoe County Sheriff’s Office, Reno, Nevada
Ben Blinn, Citizen, Carson City, Nevada
Michael Pescetta, Attorney at Law, Las Vegas, Nevada
Glen Whorton, Assistant Director of Operations, Nevada Department of Corrections, Carson City, Nevada
Kim Blandino, Citizen, Las Vegas, Nevada
[Said “Good Morning” in Gaelic in commemoration of St. Patrick’s Day.]
[The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette. Roll called.]
There is a quorum present; 13 members are present, two are absent.
Assembly Bill 16: Provides for genetic marker analysis of certain evidence related to conviction of certain offenders sentenced to death. (BDR 14‑200)
As a member of the Death Penalty and Related DNA Testing
(A.C.R. 3 of the 17th Special Session) Interim Study and being that the
she, the Chair [of that study], has prior obligations in the Assembly Committee
on Ways and Means, Chairwoman Leslie has asked me to provide an introduction to
the topic of DNA evidence.
This Committee has already heard four bills from the A.C.R. 3 Death Penalty Study, with A.B. 16 being the fifth and final bill before us to study.
As you are aware, the topic of genetic marking analysis, or DNA evidence, has recently received national attention due to the advancements in technology and the growing number of innocent persons who have been released, according to the “Innocence Project” at the Cardozo School of Law in New York, which was founded by Barry Scheck. There have been 124 exonerations to date from the use of DNA evidence. These exonerations include persons who are on death row and those who are serving lesser sentences.
The bill before us relates to post-conviction relief, which is a request for a hearing on new evidence after a person has been convicted. Nevada currently does not have a procedure for post-conviction relief based upon DNA evidence.
Last session, this issue was before this Committee as Assembly Bill 354 of the 71st Legislative Session. The bill was heard in the Assembly Committee on Judiciary, but the topic was ultimately combined into the A.C.R. 3 Death Penalty Interim Study so the issue could be more thoroughly examined. During the work session the subcommittee unanimously voted to redraft A.B. 354 of the 71st Legislative Session, but included a slight modification to Section 4 of the bill providing for an arrest of judgment if the results of a genetic marker analysis are favorable to the petitioner.
Moving to the bill generally as whole, A.B. 16 allows for persons who have been convicted and sentenced to death to file a post-conviction petition requesting genetic marking analysis of evidence within the possession of the state. The court, at its discretion, may then order a hearing on the petition. The court must order a genetic marker analysis if the court finds that:
§ A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained.
§ The evidence is in a condition that allows it to be tested.
§ The evidence was not previously subjected to genetic marker analysis involving the petitioner or the method of additional analysis may resolve an issue not previously resolved.
If the results of the petition are favorable to the petitioner, the court shall restore the petitioner to his pretrial status.
According to the “2001 National Conference of State Legislatures Survey of Other States’ Laws,” at least 26 other states now have laws that provide a window for offenders with claims of innocence to petition for post-conviction relief. Fifteen of the 26 states passed this type of legislation in 2001, when we were looking at it, and have already taken advantage of this new science.
I would like to turn it over to the experts to more fully discuss DNA evidence and why this legislation is needed for our state. I would particularly like Mr. Means, the Assistant Sheriff in Washoe County, and Stan Olsen to come forward.
Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department (Metro), and Nevada Sheriff’s and Chief’s Association:
[Introduced himself.] With me today is the Assistant Sheriff, Don Means, with the Washoe County Sheriff’s Department. He has some information and some suggested amendments (Exhibit C) and is speaking for the Metro lab and the Washoe County lab, the only two labs in the state.
Chairman Anderson:
Assistant Sheriff Means, have you shown the amendments to A.B. 16 to Ms. Leslie?
Don L. Means, Assistant Sheriff, Washoe County Sheriff’s Office:
Yes. We met with her before we came in here.
We have a couple of points of clarification that I’d like to bring to the Committee.
In Section 2, subsection 4, when we’re talking about the inventory of the evidence, I would like the Committee to be aware that there may be more than one inventory. There is the district court inventory and there is the individual department, the original jurisdiction’s inventory of evidence. There may be, depending on the severity of the crime—if it was a task-force type situation—there may be four or five different inventories. So there might be some wording put in there to say “all inventories” or “all evidence” regarding the case, which may be in three or four different locations. I know there would be at least two locations, because you all know the vast majority of evidence never makes it into district court. Depending on when this happened, it may have happened to a point where some of the evidence was not actually analyzed at the time, to the degree of the technology that we have.
Are there any questions on that point? Or do you want to wait until the end?
Chairman Anderson:
Do you think a phrase like “all known evidence” would be sufficient to cover?
Don Means:
I would say “all available evidence” in any of the investigating agencies and the district court.
In Section 2, subsection 6(b), whether or not the evidence is in a condition that allows genetic analysis to be conducted will be unknown until it reaches the laboratory. There are cases where some evidence was stored improperly; it could have not been dried, it could have been contaminated with fluids from the body or things like feces, which would destroy DNA. We would not be able to tell if it was actually anything that could be tested until we got it into the laboratory.
There have also been unfortunate incidents where freezers have actually broken down in some jurisdictions and the samples were contaminated with black mold. We would not be able to tell what the condition of that evidence was until it actually made it into the laboratory.
We are thinking about all 17 counties. A lot of things can happen and a lot of things have happened over the course of time.
Chairman Anderson:
You don’t think it’s covered by [Section 2, subsection 4(a)] “the inventory of all evidence within the possession or custody . . .” because if the evidence was destroyed by some methodology or some . . .
Don Means:
I think the concern was that we wouldn’t know if there was DNA or not until we looked at the item of evidence. I think that was a concern.
In Section 2, subsection 7(a), the word “promptly,” given the caseload of Las Vegas and Washoe County . . .
Chairman Anderson:
I’m sorry; I was under the impression you were speaking in support of the legislation.
Don Means:
We are. We just wanted to get some clarification for some of the issues. We are in support, but we wanted to make the Chair aware that there are some concerns.
Chairman Anderson:
Are these the issues that you brought up before? Let me go back and start again. I was under the impression that you were—are these issues that you brought, again, to Ms. Leslie’s attention this morning?
Don Means:
That’s correct.
Chairman Anderson:
This legislation has been out since January. This is a pre-filed piece of legislation and you brought it to her attention this morning?
Lt. Stan Olsen:
Jim Nadeau couldn’t be here this morning. Apparently the amendments were submitted to Mr. Nadeau and Mr. Nadeau didn’t recall getting them. It was apparently done electronically, and that’s what caused the delay. As soon as I realized this, Mr. Means and I immediately got hold of Ms. Leslie.
Chairman Anderson:
This is the same piece of legislation that came out two years ago.
Don Means:
Mr. Chairman, I would like to apologize. I was contacted yesterday to come and speak today. I have actually been out of the laboratory business for the last six weeks. I was just here to voice some clarification.
Chairman Anderson:
I will allow you to proceed, but I was under the impression that you had already reviewed the material. In fact, this particular material is identical to another piece of legislation, which I just got through sending back per your request because it was word-for-word identical in format.
Don Means:
Mr. Chairman, again, I want to apologize; I’ve been out of the loop. I’ve been dealing with jail issues for the last six weeks. I would like to just basically show that there are different types of testing. I don’t think that anybody’s arguing that the bill shouldn’t be passed. I think it is a very good bill. I just think that the real challenge is the condition of the evidence and the type of analysis that is going to be done.
Chairman Anderson:
Continue on, then, with “promptly.”
Don Means:
[Referring to A.B. 16, Section 2, subsection 7(a)] “Promptly” would be because of the caseloads. I think that was a concern to both laboratories, as far as what “promptly” means; we didn’t want to be in violation.
The other part would be if it had to go out for mitochondrial testing, which is extremely expensive. Neither laboratory has the capability to do mitochondrial testing, which could be valuable in these types of cases. It was something that was not foreseen 20 years ago. The testing of hair and bone fragments would be of value to the spirit of this bill.
Chairman Anderson:
Don’t you think that the state would have taken that precaution if it was about to take somebody’s life?
Don Means:
I just wanted to make sure. I think what they were concerned about was a cap and if they would actually be able to bill the state or have a laboratory, other than the in-house laboratory, be able to bill the state. I think that is what they were looking at. I have been involved in two cases where they sent out for mitochondrial testing.
In Section 2, subsection 11(a), we wanted to get rid of the words “blood sample” because basically, it is a biological sample. I know it has changed back and forth; it’s been frustrating for me because I’ve got to come in here and change it back and forth. I think we went to the term “biological specimen” so if it does need blood or saliva . . .
Chairman Anderson:
You want the words “biological specimen.”
Don Means:
Yes, “biological specimen,” and that’s basically it. [Mr. Means said he would be glad to answer any questions.]
Chairman Anderson:
We will ask you to stay in the area since you are our one resident expert on DNA that we have with us.
Assemblywoman Ohrenschall:
I am confused about two things. What was it in subsection 11 that you want to eliminate?
Chairman Anderson:
I believe it is at line 37 on page 3 of the bill. Assistant Sheriff Means was indicating in (a) that “Extraction of biological specimen” rather than just “a specimen” would be helpful to the bill, which is an issue that the Assistant Sheriff has raised in the past. The preferred language is “biological specimen” and he would like to try to make that consistent throughout the statutes.
Assemblywoman Ohrenschall:
I must be looking at a different section; I don’t see the word “biological.”
Chairman Anderson:
He wants to add that in after the “Extraction of a specimen”; he wanted it to be specifically “biological” specimen. Is that correct?
Don Means:
Yes. “Sample of blood” was what we asked for in the past; however, the new current STR (Standard Tandem Repeat) testing is just a swab on the inside of the cheek.
Assemblywoman Ohrenschall:
What about the mitochondrial?
Don Means:
Mitochondrial DNA would be the same as far as the standards go. The testing is vastly different. You only get the maternal link; so you only get half of the information.
Assemblywoman Ohrenschall:
So do you want that included in or taken out?
Don Means:
No, we wouldn’t need that. What we’re bringing up is that the mitochondrial DNA would be testing that would exceed the capabilities of the Las Vegas and Washoe County laboratories.
Ben Blinn, Citizen:
I am definitely for this bill. Anything that would exonerate an innocent man or give him mercy, I think we need to address. In some cases where the appeals have been used up—this DNA is a recent thing—these people wouldn’t have any recourse that I can see; this provides it. In that way I think it’s a good bill.
There are a couple ideas I’d like to put before you. One of those, I think all the evidence, known or new—because sometimes you learn something that’s new that you didn’t know how to do before—I saw them doing DNA [testing] on plants that were in an area; they proved that people were there by the plants that were in the back of a truck. So new evidence could sometimes be considered with the DNA.
I think that all the evidence in all jurisdictions pertaining to a case should be at the disposal of the lab and if anything has been destroyed or is missing, to give that information to the court. Primarily, to spell it out, as we know from the O.J. Simpson case, they found blood with markers in it in places that they couldn’t explain. So I think that counting for the evidence, if there’s an amount of evidence that’s missing when it’s inventoried, that fact should be noted to the court.
The other thing, if our lab here in Nevada is not quite up to the task of finding out what’s happened and we have a better lab that can free any innocent person, a provision should be made for that. I definitely approve of your action.
Michael Pescetta, Attorney at Law, Las Vegas, Nevada:
I am testifying as an attorney who practices in the area of capital defense work and as a member of Nevada Attorneys for Criminal Justice (NACJ), not as a representative of the Federal Public Defender’s Office.
Assembly Bill 16 is going to be a useful bill. It is very narrow at this point; it applies only to capital cases, a very narrow class of cases. I’ve submitted a brief memo (Exhibit D) and some proposed alterations to the Chair because I’m a lawyer, and, therefore, paranoid about leaving anything unclear. I do suggest that in Section 2, subsection 1, that it might be useful to insert language indicating that the remedy provided by this petition procedure is in addition to any other remedy that may be available by law.
Currently, when there is DNA testing it’s normally done in the context of a state habeas proceeding; Nevada Revised Statutes (NRS) 34.780, sub 2, allows discovery in such proceedings. I think the advantage of having this bill will be to ensure that, for an individual who may no longer have access to the state habeas remedy, that this petition procedure would be available for that inmate.
Also in Section 2, subsection 5 of the bill, the current language provides the court, in its sole discretion, to determine whether there will be a hearing on the petition; once the court makes a decision under Section 2, subsection 10, that decision is immune from appellate review. I’ve suggested that whenever a petition of this sort is filed that the court should be required to have a hearing, at least, to bring the parties into court and find out whether there is evidence that would support an analysis for DNA and genetic markers. I think a decision whether a test should not be conducted should be subject to appellate review since that’s basically outcome-determinative. If the testing were done and it proved to be exculpatory, but there were no mechanisms for taking an appeal from the denial of a test, then you would have somebody who might well be exonerated but has no remedy beyond the district court.
The only other thing that I wanted to mention was that in Section 2, subsection 6(a), the testing is required if the court finds a “reasonable probability” that the results would be exculpatory. I suggest the wording be changed to a “reasonable possibility.” I think we have to look at the context in which these kinds of petitions will arise. Everyone who asks for one of these tests will have been convicted beyond a reasonable doubt; so there is always going to be a good deal of evidence that he or she is, in fact, guilty of the crime. One of the documents that was presented to the A.C.R. 3 Committee was the Department of Justice’s report on DNA exonerations, which had numerous cases in which there where many positive eye-witness identifications, strong circumstantial evidence, and sometimes even confessions. The point of DNA analysis is to cut through that and show scientifically that this individual is, in fact, innocent. What I would suggest by changing “reasonable probability” to “reasonable possibility” is to make this testing available to the broadest class of people because, ultimately, the question with DNA testing is whether there is an enormous amount of evidence against the defendant. DNA evidence may show that all that evidence is mistaken whether there was one eyewitness or ten. That’s why I think that the lower standard of “reasonable possibility” would be appropriate for this testing procedure. But with those minor suggestions, I do think we support having a DNA bill for a specific petition procedure to obtain this sort of testing in capital cases.
Chairman Anderson:
Did you hear the suggestions made by Assistant Sheriff Means to the bill? I’m sure you don’t have an objection to the “biological specimen” discussion or the qualifying statement relative to the inventory. Isn’t that already done?
Michael Pescetta:
I would be happy to agree with everything that Mr. Means brought up. Certainly, the changes in the language are unexceptionable; I agree that there are going to be instances where you just don’t know whether there is testable material in some of the evidence that comes up on this inventory until it is actually tested. I would guess that is something that would be worked out in practice. The short answer is yes; I would support what Mr. Means said.
Chairman Anderson:
Did you have an opportunity to share your suggestions with the interim committee chair, Assemblywoman Leslie?
Michael Pescetta:
I submitted an alternate version to the interim subcommittee that was tabbed “AA” of the appendix to the session document; the subcommittee decided to go ahead with the previous version of A.B. 354 of the 71st Legislative Session. I have communicated my suggestions to Ms. Leslie; I haven’t talk to her about it, but she received them last week.
Chairman Anderson:
Do these suggestions conform to what you had suggested to the interim study or are they new, original thoughts?
Michael Pescetta:
They are actually a little milder. The version that we proposed to the interim subcommittee also included proposed a provision for a disputable presumption if genetic evidence was collected and lost by the state. If, in fact, such evidence was lost or destroyed while it was in the state’s possession, a rebuttable presumption would arise and would be favorable to the defendant if it had existed and had been able to be tested. There was not much enthusiasm for that. I think these other changes are fairly modest changes to the bill that was already drafted before we got into discussion.
Chairman Anderson:
We have the memorandum now from the Washoe County Sheriff’s Office and the Las Vegas Metropolitan Police Department (Exhibit C); we have Mr. Pescetta’s memorandum (Exhibit D).
[The Chair asked if there was anyone else who wised to testify on A.B. 16.]
Let me close the hearing on A.B. 16. I suggest we bring it back to Committee to take a look at the two amendments and hold it over for the work session where we can have some discussion relative to how these amendments play out. I want to make sure that I have sufficient time to review them before I make recommendations on them.
Let’s open the hearing on A.B. 103, a piece of legislation we have heard in the past.
Assembly Bill 103: Requires Director of Department to submit list to each county clerk providing certain information concerning offenders who were released from prison or discharged from parole during previous month. (BDR 14-532)
Glen Whorton, Assistant Director of Operations, Nevada Department of Corrections:
[Introduced himself.] We appreciate your courtesy in hearing this bill. Assembly Bill 103 is a proposal from the Department of Corrections to change NRS 176.335 to delete a requirement for the Department of Corrections to return a Judgment of Conviction to the County Clerk.
We believe this is an archaic component of the Nevada Revised Statutes; it dates back to 1967. Our corporate memory on this issue runs back about 28 years. We do not recollect any instance in which the Department of Corrections has engaged in this particular process per the statute. This law was put forward prior to technological advances that provided the facts by e-mail, Internet, and easy telephone access to officials who might have this type of information for individuals who are interested.
We believe that it is counter-intuitive for an individual to seek information from a county clerk regarding the status of an inmate’s or former inmate’s sentence and, in that regard, we believe it should be taken out of statute.
You may recall that last session there were two county clerks here who indicated they were opposed to this bill. One of those individuals called me that same afternoon and apologized, indicating that she had checked with her staff, and indeed, they had not received any calls regarding this kind of issue and did acknowledge the fact the Nevada Department of Corrections sends a list of discharged inmates to every county clerk in the state each month. Therefore, in that regard, we do try to provide that information in a convenient form to county clerks.
We now also provide a Web page that indicates the status of individuals who are currently incarcerated. We receive scores of calls and e-mails every day from individuals. We have retrievable information regarding the status of inmates’ sentences. In fact, this information is very much retrievable. We have discharge listings for all inmates back to the beginning of statehood in our computer system. We have made the effort to go back that far and make that information available to people who are looking for relatives or who are interested in their genealogy or those kinds of issues.
If the interest in this law was to track the status of felons within the state, then it was flawed from the beginning. By focusing on the Department of Corrections it excludes approximately three-quarters of the individuals who are convicted of felonies within this state from a return. More than half of the people convicted of felonies in this state are placed on probation and there is no provision for return on those documents. Half of the people who are released from the Department of Corrections discharge their sentences while under parole and not under the jurisdiction of the Nevada Department of Corrections.
We can provide information if an individual calls about whether an individual is incarcerated or is on parole or whether inmates have discharged their paroles or their prison sentences. In fact, the Nevada Department of Corrections is the only law enforcement agency in the state that consistently reports dispositions on felony cases in the state. It is not done by the police; it is not done by the courts; it is not done by the Division of Parole and Probation. It is done on every individual who is entered into the Department of Corrections. We provide that information to the Nevada Criminal History Repository.
The primary document for identifying an individual who has discharged his sentence from the Department of Corrections is not the “Judgment of Conviction.” The “Judgment of Conviction” places the individual into the department. The document that supports the release and discharge is the “Certificate of Discharge” issued by the Department for every individual who discharges from this Department.
We appreciate your consideration on A.B. 103. I am available to answer any questions you might have.
Chairman Anderson:
The Chair has one question. Are the reports that you generate based upon some statutory obligation or is it just good practice of the prison?
Glen Whorton:
I don’t know that, given our history, any consideration was given to the statute. When we started doing it, we thought it was a good practice. We believe in providing information to individuals who are interested. Frankly, we receive no requests from individuals regarding copies of their judgments of convictions with a single exception. However, we do receive many requests daily from law enforcement agencies for that kind of information and documentation. We believe it to be a good practice and will continue to do it.
Chairman Anderson:
Would you have any idea when that began? Did it begin around 1967 or 1965, some strange coincidence like that?
Glen Whorton:
I’m not familiar with the full history of this component of the NRS, but I would assume that this was a function of informing the communities where the individuals came from of the disposition of their incarceration, when there was no technology that gave access to that information. I would assume it was done early in the century, or even prior to that, so that the community would know. Mail was difficult; it wasn’t solid; telegraphs were not suitable for that kind of information for transmittal, so I assume that was their formalized way of doing it.
Again, we’ve received no complaints from the county clerks regarding this issue and I must assume, in that regard, it’s not an issue for them.
Chairman Anderson:
So you are not doing it on a case-by-case basis, but you are still doing it on a monthly basis in that you make the information available to the agencies.
Assemblywoman Buckley:
How do you decide which laws you are going to follow and which laws you are not going to follow?
Glen Whorton:
That is a good question and in that regard I can only state that in the past, the Department of Corrections, when it was the Department of Prisons, did not engage in this process. I am responsible for it now; in the past they did not have the resources to engage in this process. Currently, if we were to engage in this process we would have to hire additional staff to carry it out. This is a paper process that would be labor-intensive; it would have to be tracked and we would have to hire people to do it.
Frankly, given the status of our economy at this time, we don’t see that as practical. The practicality of the issue is that we have engaged the spirit of the law by providing the information when requested and doing that in a timely fashion.
Primarily, this service is provided to other law enforcement agencies. It’s extremely rare that an individual wants an actual Judgment of Conviction with a discharge endorsement on it. What they want is a Discharge Certificate that we provide. They are interested in simply the information such as when the person was there, are they still there, and do we know where they are. We still provide that information to anyone who calls; that is public information. We provide it on the Web site and we make it as accessible as possible. So, in regards to that we are responding to the spirit of the law.
Assemblywoman Buckley:
I wasn’t here when this law was enacted in 1967. I think we are struggling to find a good reason why it should still be on the books. The bottom line is that it is the law until it is changed. Maybe the reason why it ran into trouble last time was that the administration shouldn’t pick and choose which laws they want to follow regardless of whether it’s outlived its time or not. It just causes me some concern.
Assemblyman Carpenter:
Why shouldn’t we put in to law what you are actually doing in practice?
Glen Whorton:
That’s perfectly suitable to the Department of Corrections. We would have no objection to that at all. We believe in open government; we believe in providing this kind of information. We provide this information on the Internet, on our Web page; it’s available to you. If a person called the Department of Corrections after his hearing and asked for this information, he would be connected to our records department and they would provide the information very quickly. This is not a problem for us. Our issue is having the resources. It’s easy enough to pass a law; sometimes it’s hard enough to implement, given appropriate resources; however, with the resources that we have, technologically speaking, we are more than happy to respond.
Chairman Anderson:
Are there any questions from the Committee? Ms. Lang, is there a possibility that we could change this over to reflect what the practice of the agency is, as Mr. Carpenter suggested, rather than entirely remove it?
Risa Lang:
We can put in, “with our current practices,” if that’s the Committee’s desire. It sounds like they’re doing it without any statutory authority right now. If you want to put it in statute so that it’s required statutorily, we can do that.
Ben Blinn, Citizen:
I graduated from the University of Nevada in 1966. In response to Assemblywoman Buckley, I believe that the public can go to the county where a person is convicted and find the record complete. Notice, that on the first part of this, two certified copies were given to the Department of Corrections. At the end of the time served, they [Department of Corrections] are supposed to return the copy with the disposition of the case. That’s called communication.
It’s very important—in two or three things that I’ll tell you—why that needs to be done. When I was a prisoner we had trouble with the Department of Corrections with finding out how much good time we had toward our sentences. If we were in riot status, did we get any? If we worked and behaved ourselves, and were on an NDF (Nevada Department of Forestry) crew did we get the time? You guys have graciously offered that to the people on the street to keep them from coming back to finish their time quicker at a cost to the state.
The authorized person to maintain the prison system is the warden. If you don’t have any way to check on what’s been done at the Parole Board or whatever has been held incommunicado, a person sometimes is noticed and sometimes he’s not noticed. On certain occasions that might pertain to [victims] in loss of a family loved one or a sex crime case. It’s very important—with the laws that have been strengthened on registering people that are doing a “life until death” parole, which means if they are caught in violation for any infraction they are brought right back—to know their immediate disposition so that the neighborhood knows what’s going on.
When you can call your county clerk and say, “Oh yeah, one of those two papers that we hooked up, the guy with that went up there to Carson City, yes, it’s been returned and this is the further disposition of the case.” Yes, it’s nice that you may believe that the Department of Corrections will immediately give you a fax, but that paper of commitment has a number of things on it that this doesn’t cover.
One of those is, sometimes on the sentence of your conviction, they’ll give you time served. Maybe a guy didn’t bail and did two years in Clark County before he got convicted. Sometimes the judge, even with a post-conviction release, will allow the county time to be attached to the state time. In [Section 1, subsection 3 of A.B. 103], it says the judgment of the conviction must begin on the date of the sentence of the prisoner. Sometimes a judge affects that sentence and that paperwork says they give him his county time in addition, or it can start from the date he sentences. It’s generally the judge’s feeling toward the case if that gets done.
But if you’re in the law library in max (maximum security) and they have allowed you out to use the legal books—they don’t always do that—they have sole control of you in there. You need the information and you can’t get it from the very busy institution that needs to hire another person to know how to keep time of the people that we’re supposed to have incarcerated.
One would think that this would be one the most important issues for them as it would be for the prisoners, rather than keeping people around. They have made mistakes in time that were corrected by judges, “Yeah, I need to give that guy so many days off his sentence; his time began with his county time.” That’s important to establish when his time began, to figure his good time. Did he get any county time for that two years he laid up, or was that all dead time? Those questions arise when an inmate is contesting his sentence—whether he got all his good days for giving up his blood in a blood-bank draw or he went to his Alcoholics Anonymous meetings, or whatever—he took treatment while in there—the record is held within the prison.
The prison should give an accounting of what’s been done with this and a justification back to the county so that it’s exposed to the community who may be concerned that a child molester is about ready to be cut loose—maybe he went to Lincoln County instead of Clark County—still, Clark may want that information so they can track that individual.
So I believe the system is in place, if handled correctly. We don’t get out of it because now we’ve got a computer. A lot of us don’t have computers because we’re locked in a cell, but we could figure our good days and our bad days and figure when we should get out. But if you don’t know when you get out until they cut you loose . . .There’s no rational way to compute that with the County Clerk when he sent those two certified copies up to the warden and all of a sudden the warden doesn’t have one to return—why did he get two copies? The disposition of the case by the Parole Board—maybe the person working on the street in Carson City, maybe they overlooked his case and don’t know that he’s down there for a sex crime or whatever—then the people who know the prisoner—that’s the victims and so on—sometimes they’ll notify the Governor, “This guy is a sexual threat to the children in the community and you’ve got him out there on the street.”
Why not put somebody out there who wrote bad checks? He’s less of a risk to the community. Actually, when you break down the communication between the warden and the County Clerk, it limits what the convicted person can do. It eliminates the victim’s notification on these high-profile cases. And the reason that the “tire rolls all the way around” is, it has to be a round tire.
I would say in answer to the stateswoman, Ms. Buckley, that the complete information to the community should—if it’s going to be an open book—let the warden do his part too, and that is to notify the community where the conviction took place. I’m through. Thank you.
Kim Blandino, Citizen:
[Introduced himself.] Mr. Whorton did testify falsely. He says there’s not one instance that the statute has been complied with. That’s not true. I did submit a package (Exhibit E); I hope that all the Committee members got it.
I did testify against this bill in 1999. I traveled at my own expense up to Carson City because you didn’t have this wonderful videoconferencing situation.
Here’s my Judgment of Conviction [he held up a paper to the video camera]; the back of it is endorsed. I didn’t attach a copy of this, just my cover letter and the exhibits in the package I submitted for your review (Exhibit E). What was significant is that I got my Judgment of Conviction after trying for several months to receive it from the Department of Corrections in 1999.
The testimony, you recall, on A.B. 78 of the Seventieth Legislative Session, the precursor to this bill, the 1999 version of it is—the Committee meetings were on February 18, 1999, and you’ll see that this letter is dated February 19, 1999. That’s “Exhibit A” of the package I presented to you. It references a conversation on February 18, 1999, the very day that hearing was set on the previous bill—that from the Department of Prisons. It says to the Clark County Clerk that they were going to be enclosing the Judgment of Conviction for Mr. Blandino—they cite the wrong statute number there—but that it would be sent down the next day. The letter is dated February 19, 1999.
I did, in fact, receive this from the County Clerk only after I had to argue with Shirley Parraguirre, the current County Clerk then, that it was mandatory for her to file this when they got it back with Director Bayer’s endorsement on the back. I told her that she had better go to the District Attorney and seek some legal advice because it was a mandatory duty to file this, so that I could get a certified copy. I was not able to get a certified copy until March 3, 1999, due to the delay.
The thing about this is and what my concern was—and I represented it to the Committee in 1999—was that since that I was sentenced to six years with good time computation, I wanted to make sure that I had a certified document that proved, according to the best evidence rules in court via the certified document, that I, in fact, had done all my time and was legally discharged.
Mr. Whorton—this is the “Certificate of Discharge” of the issue, and he held up one, this was mine [he held up a piece of paper]—he says that this is what controls the discharge. Well, I contend that this certificate discharge has all the legal significance of Dan Rather’s comment that Al Gore won the 2000 presidential election. It’s virtually worthless. In fact, this statute came to my attention because when I was transferred to Carson City, NNCC (Northern Nevada Correctional Center), during my stay with the Department of Prisons, I met an inmate named James Lomas who was released pursuant to a certificate of discharge indicating that he had, in fact, completed his term of imprisonment. The only problem was that he was released on parole. It was discovered that they gave an erroneous certificate of discharge after he committed a misdemeanor violation and was returned back to prison on parole violation.
You on the Committee all know about accountability. When there’s accountability and double- or triple-checking, and certain tasks that need to be performed, oftentimes mistakes are caught. Perhaps if they would comply with NRS 176.335, they would not have erroneously released Mr. Lomas; they would have caught it when the director went to endorse the certificate and said, “Wait a minute; this guy isn’t supposed to be released because he completed his imprisonment; he’s being released on parole,” which is quite different than serving out the entire sentence. So clearly, Mr. Whorton was wrong when he said this has never been complied with. It has been complied with in my case; I have the certified document to prove it.
Mr. Whorton does not care about the ramifications of failure to act upon this. In my letter you’ll notice that I cite certain cases. There’s a case called Jackson v. State in which the district court had to make a finding of fact that inmate Jackson had been released on, I believe, March 10, 1982. The reason they had to do that was because the prison was not complying with the statute. Had they done that, the courts would not have had to make this finding of fact because the record would have been there before them in the courts saying, “Oh, yeah, this guy served his sentence.” The same was true in Arterburn v. State and in Washington v. State; in those cases the Nevada Supreme Court merely presumed that they’d been released. So it does have a ramification as far as the court processes are concerned. As you well know, not all cases are published. Those are just three published cases that I can point to. This does cause a concern for the district courts. We have that aspect of it.
You probably received a letter (Exhibit F) from a friend of mine, Cindy Calles. Her mother was killed by a present inmate who comes up for parole in 2004. She periodically checks, and I periodically check for her, because I’m always going on to the local court Web site, to see if the Judgment of Conviction on this man comes up. If this statute was complied with, and he was to die in prison, the Judgment of Conviction would come and she could go to the County and determine what happened with this guy. Did he die prematurely before he could get parole or release? That, as cold as it may sound, would be a happy result for her because it would be complete closure; this man couldn’t be a threat to her. That is another aspect of this particular bill that needs to be complied with, one which the Department of Corrections does not concern itself with or care about.
Ms. Buckley makes a very good point and one I give a solid “thumbs up” to. Why is the Department of Corrections in a position to where they can decide which laws they will obey and which they will not? We all know about children that are raised in homes where parents are hypocritical and they preach one thing and practice another. Here we have, ironically enough, the Department of Prisons changed to the Department of Corrections. They are going to correct inmates from illegal behavior by, [saying], “We’re not obeying the law because we don’t want to and it’s more expensive, but you have to. If you don’t we’ll throw you into solitary confinement; we’ll take privileges; we’ll fine you money and take it out of your account.” That is hardly a correcting attitude and it is most inappropriate in this context.
I believe that another aspect has been overlooked. I have before me here—I couldn’t transmit this—the “Audit Report of the State of Nevada: Judicial Branch of Government, 1995.” I received these from the Legislative Counsel Bureau. The audit report, “State of Nevada, Judicial Branch of Government, Administrative Oversight of the State Court System 2002,” specifically references the idea of restitution. Barbara Reed, Douglas County Clerk, was one of the women who testified against this bill. She receives those lists because they do pursue restitution. I’ve talked with the Clerk, Shirley Parraguirre, very recently as to this bill and they’re not receiving any of this information as to the releases. There is no possible way—in these reports, just to summarize and encapsulate what’s said in there—they talk about the dismal record of restitution, justice courts, municipal courts, and district courts getting restitution or administrative assessment fees. If the clerks don’t get the information that an inmate has been released or died while in confinement, they can be chasing wild gooses. In the case in which they have been discharged, they won’t be pursuing restitution that they could garner.
Chairman Anderson:
Mr. Blandino, would you please summarize.
Kim Blandino:
This is a very important part.
Chairman Anderson:
Of course it is, but we also need to move on.
Kim Blandino:
This is just why it is not well thought out. Nevada Revised Statutes 176.325 requires the Judgments of Convictions to go up in triplicate certified copies. To show you why this is poorly thought out, if, in fact, they want to do away with NRS 176.335 subsection 4, then why send the extra copy up there to the Department of Corrections? [Is it] to keep it in their files so it goes to the state archive one year after the guy’s been released? That puts an extra burden on the County Clerk, who has to send up an unnecessary copy to reduce the time for the certified copies. I know that takes time and effort. The Department of Corrections isn’t even concerned about that aspect; otherwise, they would have asked for an amendment to change that from three certified copies to two.
So this legislation is not well thought out; there are many ramifications beyond which they even want to consider because—let’s call a spade a spade here—they are law breakers and they’re lazy in terms of what they do or don’t want to do. To claim that the present economics is a bar to doing this belies the fact that in 1999, when they said they couldn’t do it, the economy was doing well. I don’t think cost should be a consideration in this. I think it is poorly thought out. The Committee took no action back in 1999 and let this bill lay. And I think that they should do exactly the same thing now or at least vote this thing down as soon as possible because there is a good valid purpose for this. In the court system, as I said, it is very important to know whether an inmate has been released.
Chairman Anderson:
Thank you, sir. If we were to move with the bill, we’ll see if we can straighten up some of the language of it to reflect what the practice really is.
Kim Blandino:
One thing I forget to mention and Glen Whorton didn’t mention, I have filed suit that is pending in federal court to enjoin the Department of Corrections to abide by the law as it is. If one was to just change it as it is, that would still not alleviate them from the responsibility to retroactively do this. I believe the attempt of this legislation is to try and bury this and it’s inappropriate. For Glen Whorton not to mention this suit in his presentation or to mention that I received mine, I think is disingenuous at best.
Chairman Anderson:
Are there questions from members of the Committee? Thank you very much, sir. [Asked if there was anyone else in Las Vegas wising to speak in opposition to A.B. 103.]
Let me close the hearing on Assembly Bill 103. We will bring it back to Committee. It would be the intent of the Chair that if we are going to move with A.B. 103 that we look at the practices and see whether we need to amend the bill in such a way that it reflects practice so that we could more accurately reflect the new electronic age. Perhaps we should do that so that we’re not taking this state off its responsibility or lessening the Department of Correction’s responsibility to communicate with various agencies in an accurate manner the condition of people sent to them and being held by them.
Is there anything else?
I will remind everyone that today is the magic day when we are going to see a hundred bills drop. The swelling of our caseload is going to be rather dramatic, but maybe not too much; we might only pick up 15 or 20 bills.
I am scheduling today, for those of you who are concerned about some materials; you might want to check. We’re going to try to pick up—see what happens today on the Floor; we have two sessions, so that’s double the possibility. With that, we are adjourned [at 10:19 a.m.]
RESPECTFULLY SUBMITTED:
Sabina Bye
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: