Assembly Bill No. 16–Committee on Judiciary

 

(On Behalf of Legislative Committee to Study
Death Penalty and Related DNA Testing
(ACR 3 of the 17th Special Session))

 

Prefiled January 27, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Provides for genetic marker analysis of certain evidence related to conviction of certain offenders sentenced to death. (BDR 14‑200)

 

FISCAL NOTE:  Effect on Local Government: No.

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

 

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

 

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

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 

1-2  Section 1. Chapter 176 of NRS is hereby amended by adding

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

1-4  Sec. 2.  1.  A person convicted of a crime and under

1-5  sentence of death who meets the requirements of this section may

1-6  file a postconviction petition requesting a genetic marker analysis

1-7  of evidence within the possession or custody of the State which

1-8  may contain genetic marker information relating to the

1-9  investigation or prosecution that resulted in the judgment of

1-10  conviction and sentence of death. The petition must include,

2-1  without limitation, the date scheduled for the execution, if it has

2-2  been scheduled.

2-3  2.  Such a petition must be filed with the clerk of the district

2-4  court for the county in which the petitioner was convicted on a

2-5  form prescribed by the Department of Corrections. A copy of the

2-6  petition must be served by registered mail upon:

2-7  (a) The Attorney General; and

2-8  (b) The district attorney in the county in which the petitioner

2-9  was convicted.

2-10      3.  If a petition is filed pursuant to this section, the court shall

2-11  immediately issue an order requiring, during the pendency of the

2-12  proceeding, the prosecuting attorney to preserve all evidence

2-13  within the possession or custody of the State that may be subjected

2-14  to genetic marker analysis pursuant to this section.

2-15      4.  Within 30 days after receiving notice of a petition pursuant

2-16  to this section, the prosecuting attorney:

2-17      (a) Shall prepare an inventory of the evidence within the

2-18  possession or custody of the State that may be subjected to analysis

2-19  pursuant to this section;

2-20      (b) Shall submit a copy of the inventory to the petitioner and

2-21  the court; and

2-22      (c) May file a written response to the petition with the court.

2-23      5.  The court, in its sole discretion, may order a hearing on

2-24  the petition.

2-25      6.  The court shall order a genetic marker analysis if the court

2-26  finds that:

2-27      (a) A reasonable probability exists that the petitioner would

2-28  not have been prosecuted or convicted if exculpatory results had

2-29  been obtained through a genetic marker analysis of the evidence

2-30  identified in the petition;

2-31      (b) The evidence to be analyzed exists and is in a condition

2-32  that allows genetic marker analysis to be conducted as requested

2-33  in the petition; and

2-34      (c) The evidence was not previously subjected to:

2-35          (1) A genetic marker analysis involving the petitioner; or

2-36          (2) The method of analysis requested in the petition, and

2-37  the method of additional analysis may resolve an issue not

2-38  resolved by a previous analysis.

2-39      7.  If the court orders a genetic marker analysis pursuant to

2-40  subsection 6, the court shall:

2-41      (a) Order the analysis to be conducted promptly under

2-42  reasonable conditions designed to protect the interest of the State

2-43  in the integrity of the evidence and the analysis process.

 

 

3-1  (b) Select a forensic laboratory to conduct or oversee the

3-2  analysis. The forensic laboratory selected by the court must:

3-3       (1) Be operated by this state or one of its political

3-4  subdivisions; and

3-5       (2) Satisfy or exceed the standards for quality assurance

3-6  that are established by the Federal Bureau of Investigation for

3-7  participation in CODIS. As used in this subparagraph, “CODIS”

3-8  has the meaning ascribed to it in NRS 176.0911.

3-9  (c) Order the forensic laboratory selected pursuant to

3-10  paragraph (b) to perform a genetic marker analysis of evidence.

3-11  The analysis to be performed and evidence to be analyzed must:

3-12          (1) Be specified in the order; and

3-13          (2) Include such analysis, testing and comparison of

3-14  genetic marker information contained in the evidence and the

3-15  genetic marker information of the petitioner as the court

3-16  determines appropriate under the circumstances.

3-17      (d) Order the production of any reports that are prepared by a

3-18  forensic laboratory in connection with the analysis and any data

3-19  and notes upon which the report is based.

3-20      (e) Order the preservation of evidence used in a genetic

3-21  marker analysis performed pursuant to this section for purposes of

3-22  a subsequent proceeding or analysis, if any.

3-23      8.  If the results of a genetic marker analysis performed

3-24  pursuant to this section are favorable to the petitioner, the court

3-25  shall arrest judgment as provided in NRS 176.525.

3-26      9.  The court shall dismiss a petition filed pursuant to this

3-27  section if:

3-28      (a) The requirements for ordering a genetic marker analysis

3-29  pursuant to this section are not satisfied; or

3-30      (b) The results of a genetic marker analysis performed

3-31  pursuant to this section are not favorable to the petitioner.

3-32      10.  An order of a court granting or dismissing a petition

3-33  pursuant to this section is final and not subject to judicial review.

3-34      11.  For the purposes of a genetic marker analysis pursuant to

3-35  this section, a person under sentence of death who files a petition

3-36  pursuant to this section shall be deemed to consent to the:

3-37      (a) Extraction of a specimen, including, without limitation, a

3-38  sample of blood, from him to determine his genetic marker

3-39  information; and

3-40      (b) Release and use of genetic marker information concerning

3-41  the petitioner.

 

 

 

 

4-1  12.  The expense of an analysis ordered pursuant to this

4-2  section is a charge against the Department of Corrections and

4-3  must be paid upon approval by the Board of State Prison

4-4  Commissioners as other claims against the State are paid.

4-5  Sec. 3. 1.  After a judge grants a petition requesting a

4-6  genetic marker analysis pursuant to section 2 of this act, if a judge

4-7  determines that the genetic marker analysis cannot be completed

4-8  before the date of the execution of the petitioner, the judge shall

4-9  stay the execution of the judgment of death pending the results of

4-10  the analysis.

4-11      2.  If the results of an analysis ordered and conducted

4-12  pursuant to section 2 of this act are not favorable to the petitioner:

4-13      (a) Except as otherwise provided in paragraph (b), the Director

4-14  of the Department of Corrections shall, in due course, execute the

4-15  judgment of death.

4-16      (b) If the judgment of death has been stayed pursuant to

4-17  subsection 1, the judge shall cause a certified copy of his order

4-18  staying the execution of the judgment and a certified copy of the

4-19  report of genetic marker analysis that indicates results which are

4-20  not favorable to the petitioner to be immediately forwarded by the

4-21  clerk of the court to the district attorney. Upon receipt, the district

4-22  attorney shall pursue the issuance of a new warrant of execution

4-23  of the judgment of death in the manner provided in NRS 176.495.

4-24      Sec. 4.  NRS 176.525 is hereby amended to read as follows:

4-25      176.525  The court shall arrest judgment if the indictment,

4-26  information or complaint does not charge an offense , [or] if the

4-27  court was without jurisdiction of the offense charged[. The] or if

4-28  the results of a genetic marker analysis performed pursuant to

4-29  section 2 of this act are favorable to the petitioner. Except when

4-30  the motion is based upon the results of a genetic marker analysis

4-31  performed pursuant to section 2 of this act, the motion in arrest of

4-32  judgment [shall] must be made within 7 days after determination of

4-33  guilt or within such further time as the court may fix during the

4-34  7‑day period.

4-35      Sec. 5.  1.  There is hereby appropriated from the State

4-36  General Fund to the Department of Corrections the sum of $6,250

4-37  for the expense of genetic marker analyses performed pursuant to

4-38  section 2 of this act.

4-39      2.  Any remaining balance of the appropriation made by

4-40  subsection 1 must not be committed for expenditure after June 30,

4-41  2005, and reverts to the State General Fund as soon as all payments

4-42  of money committed have been made.

 

 

5-1  Sec. 6.  The Department of Corrections, in consultation with

5-2  the Attorney General, shall, on or before August 1, 2003:

5-3  1.  Prescribe the form for a petition requesting the genetic

5-4  marker analysis of evidence pursuant to section 2 of this act; and

5-5  2.  Provide a copy of the form and a copy of the provisions of

5-6  section 2 of this act to each person in the custody of the Department

5-7  who is under a sentence of death.

5-8  Sec. 7.  This act becomes effective upon passage and approval.

 

5-9  H