Assembly Bill No. 16–Committee on Judiciary

 

(On Behalf of Legislative Committee to Study
Death Penalty and Related DNA Testing
(A.C.R. 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.

 

~

 

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; providing that a petitioner may file a motion for a new trial if the analysis is favorable to the petitioner; 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  determine which person or agency has possession or custody of

2-12  the evidence and shall immediately issue an order requiring,

2-13  during the pendency of the proceeding, each person or agency in

2-14  possession or custody of the evidence to:

2-15      (a) Preserve all evidence within the possession or custody of

2-16  the person or agency that may be subjected to genetic marker

2-17  analysis pursuant to this section;

2-18      (b) Within 30 days, prepare an inventory of all evidence within

2-19  the possession or custody of the person or agency that may be

2-20  subjected to genetic marker analysis pursuant to this section; and

2-21      (c) Within 30 days, submit a copy of the inventory to the

2-22  petitioner, the prosecuting attorney and the court.

2-23      4.  Within 30 days after the inventory of all evidence is

2-24  prepared pursuant to subsection 3, the prosecuting attorney may

2-25  file a written response to the petition with the court.

2-26      5.  The court shall hold a hearing on a petition filed pursuant

2-27  to this section.

2-28      6.  The court shall order a genetic marker analysis if the court

2-29  finds that:

2-30      (a) A reasonable possibility exists that the petitioner would not

2-31  have been prosecuted or convicted if exculpatory results had been

2-32  obtained through a genetic marker analysis of the evidence

2-33  identified in the petition;

2-34      (b) The evidence to be analyzed exists; and

2-35      (c) The evidence was not previously subjected to:

2-36          (1) A genetic marker analysis involving the petitioner; or

2-37          (2) The method of analysis requested in the petition, and

2-38  the method of additional analysis may resolve an issue not

2-39  resolved by a previous analysis.

2-40      7.  If the court orders a genetic marker analysis pursuant to

2-41  subsection 6, the court shall:

2-42      (a) Order the analysis to be conducted promptly under

2-43  reasonable conditions designed to protect the interest of the State

2-44  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, when possible; and

3-5       (2) Satisfy the standards for quality assurance that are

3-6  established for forensic laboratories by the Federal Bureau of

3-7  Investigation.

3-8  (c) Order the forensic laboratory selected pursuant to

3-9  paragraph (b) to perform a genetic marker analysis of evidence.

3-10  The analysis to be performed and evidence to be analyzed must:

3-11          (1) Be specified in the order; and

3-12          (2) Include such analysis, testing and comparison of

3-13  genetic marker information contained in the evidence and the

3-14  genetic marker information of the petitioner as the court

3-15  determines appropriate under the circumstances.

3-16      (d) Order the production of any reports that are prepared by a

3-17  forensic laboratory in connection with the analysis and any data

3-18  and notes upon which the report is based.

3-19      (e) Order the preservation of evidence used in a genetic

3-20  marker analysis performed pursuant to this section for purposes of

3-21  a subsequent proceeding or analysis, if any.

3-22      8.  If the results of a genetic marker analysis performed

3-23  pursuant to this section are favorable to the petitioner:

3-24      (a) The petitioner may bring a motion for a new trial based on

3-25  the ground of newly discovered evidence pursuant to NRS

3-26  176.515; and

3-27      (b) The restriction on the time for filing the motion set forth in

3-28  subsection 3 of NRS 176.515 is not applicable.

3-29      9.  The court shall dismiss a petition filed pursuant to this

3-30  section if:

3-31      (a) The requirements for ordering a genetic marker analysis

3-32  pursuant to this section are not satisfied; or

3-33      (b) The results of a genetic marker analysis performed

3-34  pursuant to this section are not favorable to the petitioner.

3-35      10.  For the purposes of a genetic marker analysis pursuant to

3-36  this section, a person under sentence of death who files a petition

3-37  pursuant to this section shall be deemed to consent to the:

3-38      (a) Submission of a biological specimen by him to determine

3-39  his genetic marker information; and

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

3-41  the petitioner.

3-42      11.  The expense of an analysis ordered pursuant to this

3-43  section is a charge against the Department of Corrections and

3-44  must be paid upon approval by the Board of State Prison

3-45  Commissioners as other claims against the State are paid.

4-1  12.  The remedy provided by this section is in addition to, is

4-2  not a substitute for and is not exclusive of any other remedy, right

4-3  of action or proceeding available to a person convicted of a crime

4-4  and under sentence of death.

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 176.515 is hereby amended to read as follows:

4-25      176.515  1.  The court may grant a new trial to a defendant if

4-26  required as a matter of law or on the ground of newly discovered

4-27  evidence.

4-28      2.  If trial was by the court without a jury the court may vacate

4-29  the judgment if entered, take additional testimony and direct the

4-30  entry of a new judgment.

4-31      3.  [A] Except as otherwise provided in section 2 of this act, a

4-32  motion for a new trial based on the ground of newly discovered

4-33  evidence may be made only within 2 years after the verdict or

4-34  finding of guilt.

4-35      4.  A motion for a new trial based on any other grounds must be

4-36  made within 7 days after the verdict or finding of guilt or within

4-37  such further time as the court may fix during the 7-day period.

4-38      Sec. 5.  The Department of Corrections, in consultation with

4-39  the Attorney General, shall, on or before August 1, 2003:

4-40      1.  Prescribe the form for a petition requesting the genetic

4-41  marker analysis of evidence pursuant to section 2 of this act; and

4-42      2.  Provide a copy of the form and a copy of the provisions of

4-43  section 2 of this act to each person in the custody of the Department

4-44  who is under a sentence of death.

 

5-1  Sec. 6.  This act becomes effective upon passage and approval.

 

5-2  H