The following work session document was prepared by staff of the Legislative Commission's Subcommittee to Study the Death Penalty and Related DNA Testing in Nevada (Assembly Concurrent Resolution No. 3 [File No. 7, Statutes of Nevada 2001 Special Session]). The document contains a compilation of recommendations within the scope of the study that were presented in hearings and submitted in writing during the course of the study for the Subcommittee's consideration.

 

The possible actions listed in the document do not necessarily have the support or opposition of the Subcommittee. Rather, these possible actions simply are compiled and organized so the members may review them to decide if they should be adopted, changed, rejected, or further considered. Sponsors of recommendations may be referenced in parentheses. Please note that specific sponsors of the recommendations may not be provided if the proposals were raised and discussed by numerous individuals and entities during the course of the study.

 

In addition, under Nevada Revised Statutes (NRS) 218.2429, interim committees conducting a study or investigation are limited to no more than five legislative measures (bill draft requests). However, committees may request the preparation of additional legislative measures if the Legislative Commission approves each additional request by a majority vote. Finally, A.C.R. 3 specifies that any recommended legislation proposed by the Subcommittee must be approved by a majority of the members of the Senate and a majority of the members of the Assembly appointed to the Subcommittee.

RECOMMENDATIONS RELATING TO

THE DEATH PENALTY AND DNA TESTING IN NEVADA

 

 

GENERAL RECOMMENDATIONS

 

Recommendation No. 1 - Draft legislation to abolish the death penalty in Nevada. (Comprehensive recommendation proposed by numerous individuals and groups throughout the course of the study)

 

Recommendation No. 2 - Draft legislation to impose a moratorium on all executions and to allocate resources to further study the capital punishment system in Nevada. (Proposed by the Nevada Coalition Against the Death Penalty)

 

 

RACIAL/BIAS/GENDER/ECONOMIC DISCRIMINATION

 

Recommendation No. 3 - Adopt a "Racial Justice Act" (modeled after Kentucky law) to prohibit a death sentence being sought or given on the basis of race.

 

OPTION A - Draft legislation to enact the Kentucky racial justice act [Kentucky Revised Statutes (KRS) 532.300]. (Proposed by Bryan Stevenson, Professor of Law, New York University School of Law)

 

OPTION B - Draft legislation to adopt a racial justice act modeled after Kentucky law (KRS 532.300) but strengthening the statutory requirement to add if "race was any factor" in the decision to seek the sentence of death. (Proposed by Michael Pescetta, Assistant Federal Public Defender, Office of the Federal Public Defender, District of Nevada, testifying as a private citizen)

 

Background Information for Recommendation No. 3   Tab A - Kentucky Revised Statutes 532.300.   Tab B - Draft language submitted by Michael Pescetta on creating a racial justice act.   Tab C - Memorandum by Michael Pescetta on racial and economic bias in the imposition of the death penalty.

 

Recommendation No. 4 - Draft legislation to strengthen the mandatory review by the Nevada Supreme Court of capital sentences for the influence of prejudice and to impose a proportionality review of similar cases in which the death penalty was and was not sought. (Proposed by Michael Pescetta and The Constitution Project)

 

 

Background Information for Recommendation No. 4   This proposal would strengthen the mandatory review by the Nevada Supreme Court and would also require a "proportionality review" by the Court to determine specifically whether the death sentence is proportional in light of similar cases in which the death penalty was not sought or was not imposed. According to The Constitution Project, "Every state should adopt procedures for ensuring that death sentences are meted out in a proportionate manner to make sure that the death penalty is being administered in a rational, non-arbitrary, and even-handed manner, to provide a check on broad prosecutorial discretion, and to prevent discrimination from playing a role in the capital decision making process."   Testimony further indicated the mandatory review should include an evaluation of statistical information. See Recommendation No. 5 for further discussion of statistical reporting.   See Tab C -Memorandum by Michael Pescetta on racial and economic bias in the imposition of the death penalty.   Tab D - Draft language submitted by Michael Pescetta on adequate mandatory review (including proportionality review). See also Recommendation No. 19 (elimination of waiver of appeals under NRS 177.055).

 

Recommendation No. 5 - Draft legislation to require reporting of statistical information in all death penalty and homicide cases. (Proposed by Michael Pescetta and The Constitution Project)

 

Background Information for Recommendation No. 5   This recommendation contains two parts: (1) the first proposal requires that the trial court submit a report in all first-degree murder cases where a penalty hearing is conducted; and (2) the second proposal requires an annual reporting by the district attorney for all non‑negligent homicides. The reporting required by the trial court is modeled after the Revised Code of Washington Annotated 10.95.120, and the reporting for homicide cases is similar to the reporting suggested by the Fondi Commission and briefly adopted by the Nevada Supreme Court in Rule 250.   Under the reporting required by the trial court, the trial court would be required to report within 60 days to the Nevada Supreme Court, the defendant and his attorney, and the prosecuting attorney specific information about the defendant, the trial, the sentencing proceeding, the victim, the representation of the defendant, general background information, and the chronology of the case.   Under the homicide reporting requirement, the district attorney in each county would be required to submit to the Nevada Supreme Court on April 1 of each year a report identifying: the age, sex, and race of the defendant, the victim, and any other codefendants or coparticipants; the date of the homicide and of the filing of the complaint or indictment; the courts in which the case was prosecuted, whether a notice to seek the death penalty was filed, and the final disposition of the case; the racial and gender composition of the jury; and the identity of any individuals involved in making the capital charging decision (including any law enforcement officers, victim's family members, or others consulted by prosecutors in making that decision).   Fiscal Note- It can be presumed that the proposed recommendation will have a fiscal impact, which has not been determined. If the bill is introduced, a fiscal note will be requested.   Tab E - Draft language submitted by Michael Pescetta on reporting of statistical information in death penalty cases (identified as new section NRS 177.0551) and in all homicide cases (identified as new section NRS 177.0552).   Tab F - Revised Code of Washington Annotated 10.95.120.

 

 

AGGRAVATING AND MITIGATING CIRCUMSTANCES

 

Recommendation No. 6 - Draft legislation to amend Nevada's list of 14 aggravating circumstances for first-degree murder under NRS 200.033.

 

OPTION A - Draft legislation to replace the current list of 14 aggravating circumstances under NRS 200.033 with the five aggravating circumstances recommended by the Illinois Report of the Governor's Commission on Capital Punishment. (Proposed by JoNell Thomas, private attorney, and Michael Pescetta)

 

Background Information for Recommendation No. 6 (OPTION A)   Tab G - Draft language (entitled "Proposal 1") submitted by JoNell Thomas and Michael Pescetta specifically listing the five proposed new aggravating circumstances recommended by the Illinois Commission on Capital Punishment.   Tab H -Memorandum by JoNell Thomas providing additional information on aggravating and mitigating circumstances.   Tab I - NRS 200.033 (current Nevada law on circumstances aggravating first-degree murder).

 

OPTION B - Draft legislation to narrow the scope of the current aggravating circumstances under NRS 200.033. (Proposed by JoNell Thomas and Michael Pescetta)

 

Background Information for Recommendation No. 6 (OPTION B)   OPTION B suggests limiting language and the deletion of certain aggravators (including the deletion of the following aggravators: more than one person, felony murder, avoiding arrest, random and without motive, and nonconsensual sexual penetration) but does not rise to the level of the suggested changes under OPTION A.   Tab J - Draft language (entitled "Proposal 2") submitted by JoNell Thomas and Michael Pescetta proposing limiting language under NRS 200.033.

 

OPTION C - Draft legislation to delete the aggravating circumstances identified as the most deficient during testimony. (Proposed by JoNell Thomas and Michael Pescetta)

 

Background Information for Recommendation No. 6 (OPTION C)   OPTION C is a modification to remove some of the aggravating factors identified as the most deficient including: the deletion of the "at random and without apparent motive" circumstance; limiting the torture factor to instances in which actual torture has occurred in the course of an intentional killing; and limiting the scope of the felony-murder and other factors to apply only to actual killers who intended to kill the victim.   During testimony on the issue of Nevada's aggravating circumstances, much discussion centered on the deletion of the following two aggravators: murder committed by a person who knowingly created a great risk of death to more than one person [NRS 200.033(3)] and murder committed upon one or more persons at random and without apparent motive [NRS 200.033(9)].   Tab K -Draft language (entitled "Proposal 3") submitted by JoNell Thomas and Michael Pescetta proposing limiting language under NRS 200.033.

 

Recommendation No. 7 - Draft legislation to amend the current list of mitigating factors under NRS 200.035. (Proposed by Michael Pescetta)

 

§         By adding a specific mitigating factor to NRS 200.035 that the defendant suffers from mental illness or has a history of psychological disturbance.

 

§         By adding a specific mitigating factor to NRS 200.035 for the existence of lingering doubt by a juror as to the guilt of the criminal offender or of any aggravating factor. (Proposed by Michael Pescetta and The Constitution Project, which recommended a jury instruction on lingering doubt)

 

§         By adding a requirement that the court list all of the "other" mitigating factors under NRS 200.035(7) individually and submit them to the jury as part of the verdict forms.

 

Background Information for Recommendation No. 7 The mitigating factor for the existence of lingering doubt may state "If you have any lingering doubt as to the defendant's guilt of the crime or any element of the crime, even though that doubt did not rise to the level of a reasonable doubt when you found the defendant guilty, you may consider that doubt as a mitigating circumstance weighing against a death sentence for the defendant."   Tab L - NRS 200.035 (current Nevada law on circumstances mitigating first-degree murder).

 

Recommendation No. 8 - Draft legislation to amend NRS 200.030(4)(a) to provide that aggravating factors must outweigh mitigation in order for the jury to consider the death penalty as a sentencing option. (Proposed by Michael Pescetta)

 

Background Information for Recommendation No. 8   According to testimony, current Nevada law provides that the jury may find the defendant eligible to receive the death penalty if mitigating factors do not outweigh aggravating ones, and proponents of the recommendation argued that there may be constitutional problems with imposing a burden on the defense to avoid the death penalty.   Tab M -NRS 200.030 (current Nevada law on degrees of murder and penalties).

 

 

COMPETENCY AND FUNDING OF COUNSEL

 

Recommendation No. 9 - Draft legislation to create an independent authority to recruit, select, train, monitor, support, and assist attorneys who represent defendants charged with a capital crime. (Proposed by The Constitution Project and the Justice Project)

 

Background Information for Recommendation No. 9   The recommendation states that the independent authority should be composed of attorneys knowledgeable about criminal defense in capital cases and who will operate independent of conflicts of interest with judges, prosecutors, or any other parties. This authority should adopt and enforce minimum standards for appointed counsel at all stages of capital cases, including state or federal post-conviction and certiorari. An existing statewide public defender office or other assigned counsel program should meet the definition of a central appointing authority. Fiscal Note- It can be presumed that the proposed recommendation will have a fiscal impact, which has not been determined. If the bill is introduced, a fiscal note will be requested.   Tab N - The Constitution Project recommendation on the creation of an independent appointing authority.

 

Recommendation No. 10 - Adopt guidelines and minimum qualifications for counsel participating in capital cases. (Proposed by Willard Ewing, Deputy Public Defender, Office of the Clark County Public Defender)

 

OPTION A - Draft a resolution urging the Nevada Supreme Court to amend Supreme Court Rule 250 by adopting the recommended minimum qualifications of counsel in capital cases to:

 

§         Require that trial counsel meet the following minimum requirements: has (1) acted as defense counsel in no less than seven felony trials, at least two of which involved violent crimes and including one open murder case tried before a jury; (2) acted as defense cocounsel in at least two death penalty trials to verdict; (3) been licensed to practice law for at least three years and within the previous eighteen months; and (4) completed a minimum of eight hours of continuing legal education on the subject of defending capital cases.

 

§         Require that appellate counsel meet the following requirements: has (1) acted as defense counsel in no less than seven felony appeals, at least two of which involved violent crimes and including one murder case; (2) acted as defense counsel in at least one death penalty case; (3) been licensed to practice law for at least three years; and (4) completed a minimum of eight hours of continuing legal education on the subject of defending capital cases.

 

§         Require that post-conviction relief counsel meet the following requirements: has (1) acted as defense counsel in no less than seven post-conviction proceedings, at least two of which involved violent crimes and including one murder case; (2) previously acted as defense cocounsel in at least one death penalty trial, on appeal, or in post-conviction proceedings; (3) conducted at least two evidentiary hearings in post-conviction proceedings; (4) been licensed to practice law for at least three years; and (5) completed a minimum of eight hours of continuing legal education on the subject of defending capital cases.

 

OPTION B - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the Nevada Supreme Court requesting the Court to amend Supreme Court Rule 250 by adopting the recommended minimum qualifications of counsel (described under OPTION A) in capital cases.

 

Background Information for Recommendation No. 10   Tab O -Memorandum by Willard Ewing regarding recommendations on competency of counsel, funding of counsel, and adequacy of resources.   Tab P - Nevada Supreme Court Rule 250.

 

 

Recommendation No. 11 - Adopt changes to procedural default rules in capital cases. (Proposed by Willard Ewing)

 

OPTION A - Draft a resolution urging the Nevada Supreme Court to amend Supreme Court Rule 250 by adding "Due to the unique severity of capital sentences and the complexity of capital litigation, the Nevada Supreme Court shall not apply procedural default rules to bar consideration of constitutional issues on direct appeal or in collateral proceedings."

 

OPTION B- Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the Nevada Supreme Court requesting the Court to amend Supreme Court Rule 250 by adding "Due to the unique severity of capital sentences and the complexity of capital litigation, the Nevada Supreme Court shall not apply procedural default rules to bar consideration of constitutional issues on direct appeal or in collateral proceedings."

 

Background Information for Recommendation No. 11   See Tab O -Memorandum by Willard Ewing regarding recommendations on competency of counsel, funding of counsel, and adequacy of resources.

 

Recommendation No. 12 - Adopt a new standard for ineffective assistance of counsel at the trial level. (Proposed by Willard Ewing and The Constitution Project)

 

OPTION A - Draft legislation to adopt a new standard for ineffective assistance of counsel stating "Counsel should be required to perform at the level of an attorney reasonably skilled in the specialized practice of capital representation, be zealously committed to the capital case, and possess adequate time and resources to prepare." (Note: These are standards from the National Legal Aid and Defenders Association [NLADA].)

 

OPTION B - Draft a resolution urging the Nevada Supreme Court to appoint a committee to explore adopting a Supreme Court rule outlining the standard for ineffective assistance of counsel as defined by the NLADA (in OPTION A).

 

OPTION C - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the Nevada Supreme Court requesting the Court to appoint a committee to explore adopting a Supreme Court rule outlining the standard for ineffective assistance of counsel as defined by the NLADA (in OPTION A).

 

Background Information for Recommendation No. 12   The Constitution Project recommendation urges the replacement of the current Strickland v. Washington standard (which requires the defendant to show both that counsel's performance was deficient and that the deficient performance undermined the reliability of the conviction or sentence) for ineffective assistance of counsel with the NLADA standards (described above). The recommendation further states that "Once a defendant has demonstrated that his or her counsel fell below the minimum standard of professional competence in death penalty litigation, the burden should shift to the state to demonstrate that the outcome of the sentencing hearing was not affected by the attorney's incompetence."   See Tab O -Memorandum by Willard Ewing regarding recommendations on competency of counsel, funding of counsel, and adequacy of resources.   Tab Q - The Constitution Project recommendation to replace the Strickland v. Washington standard for ineffective assistance of counsel.

 

Recommendation No. 13 - Adopt requirements for a defense team for capital cases that are not handled by a public defender's office. (Proposed by Willard Ewing)

 

OPTION A - Draft legislation to require that a defense team on a capital case not handled by a public defender's office include: (1) two attorneys (in compliance with Nevada Supreme Court Rule 250); (2) an investigator; (3) a mitigation specialist or reasonable equivalent; (4) a forensic psychiatrist or forensic psychologist; and (5) other defense team members as deemed necessary, upon motion of defense counsel.

 

OPTION B - Draft a resolution urging the Nevada Supreme Court to adopt a Supreme Court rule to require that a defense team on a capital case not handled by a public defender's office include the above (OPTION A) requirements.

 

OPTION C - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the Nevada Supreme Court requesting the Court to adopt a Supreme Court rule to require that a defense team on a capital case not handled by a public defender's office include the above (OPTION A) requirements.

 

Background Information for Recommendation No. 13   Fiscal Note- It can be presumed that the proposed recommendation will have a fiscal impact, which has not been determined. If the bill is introduced, a fiscal note will be requested.

 

Recommendation No. 14 - Draft legislation to amend the presumptive limits on attorney fees and ancillary expenses prescribed by NRS 7.125 and 7.135 so that they do not apply to capital cases. (Proposed by Willard Ewing)

 

Background Information for Recommendation No. 14   Current Nevada law under NRS 7.125 limits the fees for appointed counsel in matters where the most serious crime is a felony punishable by death to $12,000. Similarly, compensation to any investigative expert or other provider of services for the defense is limited to $300 under NRS 7.135.   Fiscal Note- It can be presumed that the proposed recommendation will have a fiscal impact, which has not been determined. If the bill is introduced, a fiscal note will be requested.   Tab R - NRS 7.125 and 7.135.

 

Recommendation No. 15 - Adopt a recommendation requesting that payments for attorney fees and ancillary expenses be paid promptly. (Proposed by Michael Pescetta and members of the A.C.R. 3 Subcommittee)

OPTION A - Draft a resolution urging the appropriate state and local officials to ensure prompt payment of attorney fees and ancillary expenses.

 

OPTION B - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the appropriate state and local officials requesting that payments for attorney fees and ancillary expenses be paid promptly.

 

Recommendation No. 16 - Draft legislation to require that appointed counsel in capital cases be trained on the procedures for obtaining adequate funding in capital cases. (Proposed by Willard Ewing)

 

 

JURIES AND JURY INSTRUCTIONS

 

Recommendation No. 17 - Adopt a recommendation requiring individual voir dire and sequestering in capital cases. (Proposed by Michael Pescetta and Philip Kohn, Clark County Special Public Defender)

 

OPTION A - Draft legislation to require individual voir dire and sequestering in capital cases.

 

OPTION B - Draft a resolution urging the Nevada Supreme Court to adopt a rule requiring individual voir dire and sequestering in capital cases.

 

OPTION C - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the Nevada Supreme Court requesting the Court to adopt a rule requiring individual voir dire and sequestering in capital cases.

 

Recommendation No. 18 - Adopt a recommendation requiring written jury questionnaires in capital cases. (Proposed by Howard Brooks, Deputy Public Defender, Office of the Clark County Public Defender, and Maizie Pusich, Chief Deputy Public Defender, Office of the Washoe County Public Defender)

 

OPTION A - Draft legislation to require written jury questionnaires in capital cases.

 

OPTION B - Draft a resolution urging the Nevada Supreme Court to adopt a rule requiring written jury questionnaires in capital cases.

 

OPTION C - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the Nevada Supreme Court requesting the Court to adopt a rule requiring written jury questionnaires in capital cases.

 

Background Information for Recommendation No. 18   The recommendation stated that jury questionnaires are prepared and agreed upon by the prosecution and the defense and submitted to the judge for presentation to the jurors. The purpose of the questionnaires is to obtain information from the jurors regarding their qualifications to sit as jurors in a particular case. The questionnaires are also intended to shorten the process by eliminating certain issues before getting to voir dire. The information contained in the questionnaires becomes part of the court record but is not distributed to anyone other than the attorneys in the case and the judge.

 

 

APPEALS PROCESS

 

Recommendation No. 19 - Draft legislation to eliminate the waiver of appeals by defendants. (Proposed by JoNell Thomas, private attorney)

 

Background Information for Recommendation No. 19   See Tab D - Draft language submitted by Michael Pescetta proposes elimination of waiver of appeals under NRS 177.055.

 

Recommendation No. 20 - Draft legislation to provide for sufficient funding for state habeas proceedings, including prompt and adequate compensation for counsel and sufficient other resources. (Proposed by the Nevada Coalition Against the Death Penalty)

 

 

JUDICIAL FUNCTIONS AND THREE-JUDGE PANELS

 

Recommendation No. 21 - Draft legislation to eliminate three-judge panels in all capital sentencing decisions. (Proposed by Michael Pescetta, JoNell Thomas, and the Justice Project)

 

Background Information for Recommendation No. 21   Presented testimony recommended that in guilty plea cases, a jury should be impaneled to impose a sentence. In hung jury cases and in guilty plea cases, if the jury cannot reach a unanimous decision in favor of the death penalty, a sentence of life in prison with the possibility of parole or a sentence of life without the possibility of parole should be imposed. If a jury cannot reach a unanimous decision in a capital penalty phase, the parties shall have the right to poll the jurors to determine whether they are split between sentences less than death or a sentence of death and a sentence less than death.   Tab S - Draft language (entitled "Proposal 1") submitted by Michael Pescetta on the elimination of three-judge panels. This proposal repeals three-judge panels and suggests when a jury is unable to reach a unanimous verdict for a sentence of death, then the court shall impanel a new sentencing jury.   Tab T - Draft language (entitled "Proposal 2") submitted by Michael Pescetta on the elimination of three-judge panels. This proposal repeals three-judge panels and suggests as an alternative that when a jury is unable to reach a unanimous verdict for a sentence of death, the Court shall enter a sentence of life without the possibility of parole.   Tab U - Memorandum by Michael Pescetta on three-judge panel procedure.   Tab V - Memorandum by JoNell Thomas on three-judge panels in capital cases.

 

Recommendation No. 22 - Adopt a requirement on continuing legal education for judges presiding over capital cases. (Proposed by Willard Ewing)

 

OPTION A - Draft legislation to require all judges who are going to preside over a death penalty case to receive a minimum of eight hours of continuing legal education on the subject of presiding over death penalty litigation.

 

OPTION B - Draft a resolution urging the Nevada Supreme Court to adopt a rule requiring all judges who are going to preside over a death penalty case to receive a minimum of eight hours of continuing legal education on the subject of presiding over death penalty litigation.

 

OPTION C - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the Nevada Supreme Court requesting the Court to adopt a rule requiring all judges who are going to preside over a death penalty case to receive a minimum of eight hours of continuing legal education on the subject of presiding over death penalty litigation.

 

 

RULES OF PROCEDURE AND ARGUMENT

 

Recommendation No. 23 - Draft legislation to amend NRS 175.554 to revise the order in which arguments must be presented during the penalty hearing in capital cases. (Proposed by Philip Kohn)

 

Background Information for Recommendation No. 23   Testimony indicated that proposed legislation would require that the prosecutor open the argument, defense counsel may then respond, the state may then argue in rebuttal, and then defense counsel may conclude the argument in surrebuttal.   Tab W - Draft language submitted by Philip Kohn on rules of procedure.

 

 

DNA EVIDENCE

 

Recommendation No. 24 - Draft legislation to adopt the Uniform Statute for Obtaining

Post-Conviction DNA Testing. (Proposed by Barry Scheck, Professor of Law, Cardozo School of Law)

 

Background Information for Recommendation No. 24   Fiscal Note- It can be presumed that the proposed recommendation will have a fiscal impact, which has not been determined. If the bill is introduced, a fiscal note will be requested.   Tab X - Uniform Statute for Obtaining Post-Conviction DNA Testing as approved by the National Commission on the Future of DNA Evidence.   Tab Y - National Commission's Comments to the Uniform Statute.   Tab Z - National Conference of State Legislatures (NCSL) State Legislative Report of States That Have Post-Conviction DNA Statutes.

 

Recommendation No. 25 - Draft legislation to require the preservation of evidence and testing of biological evidence. (Proposed by Michael Pescetta) Additionally, the legislation may also include a requirement that biological samples be taken and preserved, with a requirement that the sample not be destroyed or completely consumed during testing so as to assure that future testing may be conducted. (Proposed by Maizie Pusich)

 

Background Information for Recommendation No. 25   Testimony indicated that preservation of evidence was the strongest area of concern during the hearing on DNA and its uses. The proposed recommendation requires the state to preserve biological evidence for independent testing by the defense. In order to provide a clear incentive to the state to preserve biological evidence adequately (and to gather evidence when it is available to the state but not to the defense, and the defense requests that the evidence be gathered), subsection 1 provides-prospectively only-for a jury instruction stating a rebuttable presumption at trial that the lost or otherwise unavailable evidence, if tested, would have been favorable to the defense.   Tab AA - Draft language by Michael Pescetta on preservation of evidence and DNA testing.

 

Recommendation No. 26 - Draft legislation to create and provide funding for a forensic science review board to regulate all crime laboratories and DNA databanks. The legislation should include funding to provide for oversight and training. (Proposed by Barry Scheck)

 

Background Information for Recommendation No. 26   Fiscal Note- It can be presumed that the proposed recommendation will have a fiscal impact, which has not been determined. If the bill is introduced, a fiscal note will be requested.

 

Recommendation No. 27 - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to all prosecuting agencies urging them to review older cases with the advancement of DNA technology and to seek funding and allocate resources for such endeavors. (Proposed by Barry Scheck)

 

Recommendation No. 28 - Draft legislation to provide funding (suggested $50,000 to $100,000) to establish law school innocence projects to research and review cases to determine the merits of post-conviction DNA requests. (Proposed by Barry Scheck)

 

 

DEFENDANTS WITH MENTAL RETARDATION

 

Recommendation No. 29 - Draft legislation to prohibit the imposition of a death sentence on individuals diagnosed with mental retardation. (Proposed by Dr. Brian Lahren, Executive Director, Washoe Association for Retarded Citizens; Dr. W. Larry Williams, Associate Professor, Behavior Analysis Program, University of Nevada, Reno; the Nevada Coalition Against the Death Penalty; The Constitution Project; and other individuals and groups during testimony on the issue)

 

OPTION A - Redraft Assembly Bill 353 from the 2001 Legislative Session. (Proposed by Michael Pescetta)

 

OPTION B - Draft legislation to adopt the Tennessee model (Tennessee Code Annotated 39-13-203) as recommended by the Illinois Report of the Governor's Commission on Capital Punishment. (Proposed by Dr. Richard Siegel, Professor of Political Science, University of Nevada, Reno)

 

Background Information for Recommendation No. 29   During testimony, Dr. Siegel suggested that Nevada follow the recommendation of the Illinois Report of the Governor's Commission on Capital Punishment to ban the execution of the mentally retarded. The Illinois recommendation was to adopt a statute modeled after Tennessee Code Annotated 39-13-203.   The statutory requirements and definitions of mental retardation in Nevada's Assembly Bill 353 (2001 Session) and the Tennessee statute are similar. The Subcommittee may wish to consider that the Nevada bill contains a rebuttable presumption of mental retardation if the person has an IQ of 70 or below; whereas, the Tennessee statute includes an IQ of 70 or below within the definition of mental retardation.   Tab BB - Assembly Bill 353, First Reprint (2001 Session).   Tab CC - Memorandum by Michael Pescetta on mental retardation.   Tab DD - Summary by Jim Ellis, Professor of Law, University of New Mexico.   Tab EE - Recommendation 68 of the Illinois Report of the Governor's Commission on Capital Punishment.   Tab FF - Tennessee Code Annotated 39-13-203.

 

 

COSTS OF THE CAPITAL PUNISHMENT SYSTEM

 

Recommendation No. 30 - Adopt a recommendation to investigate and report on the fiscal impact of Nevada's current death penalty system on state and local budgets. (Proposed by Larry Struve, Religious Alliance in Nevada)

 

option a - Draft legislation to appropriate funding for an independent study of the costs of the death penalty system in Nevada.

 

Background Information for Recommendation No. 30 (OPTION A)   This study may be undertaken by an independent criminal justice research and consulting firm (such as the Spangenberg Group) or through the University of Nevada system.   Tab GG - Memorandum by Larry Struve on the need for accurate assessment of costs to Nevada taxpayers related to death penalty cases.   Tab HH - Memorandum by Maizie Pusich on costs.

 

OPTION B - Draft legislation to require district attorneys, public defenders, private appointed counsel, and the Office of the Attorney General to record and report to the Administrative Office of the Courts (AOC) the costs of attorney and staff time, investigation, and other resources allocated to death penalty cases. The AOC shall then be required to report to the Nevada Legislature prior to the start of each legislative session on the total costs of the death penalty system.

 

Background Information for Recommendation No. 30 (OPTION B)   Fiscal Note- It can be presumed that the proposed recommendation will have a fiscal impact, which has not been determined. If the bill is introduced, a fiscal note will be requested.

 

OPTION C - Draft a resolution urging the AOC to seek a project grant (through the State Justice Institute or similar entity) and to contract with a consulting firm or a university for the study of the costs of processing murder cases and capital cases.

 

OPTION D - Draft a letter, on behalf of the A.C.R. 3 Subcommittee, to the AOC requesting the AOC to seek a project grant (through the State Justice Institute or similar entity) and to contract with a consulting firm or a university for the study of the costs of processing murder cases and capital cases.

 

Background Information for Recommendation No. 30 (OPTION C and OPTION D)   The North Carolina Administrative Office of the Courts received a grant from the State Justice Institute and then contracted with Duke University to prepare "The Costs of Processing Murder Cases in North Carolina" (May 1993). Tab II -Preface and Executive Summary of "The Costs of Processing Murder Cases in North Carolina" (May 1993).   Tab JJ - Information on State Justice Institute project grants.

 

 

JUVENILE DEFENDANTS

 

Recommendation No. 31 - Draft legislation to prohibit the imposition of a death sentence on individuals who were under the age of 18 at the time of commission of the crime. (Proposed by Mark Blaskey, Chief Deputy Public Defender, Clark County; Mary Berkheiser, Professor of Law, Boyd School of Law, University of Nevada, Las Vegas; and The Constitution Project)

 

Background Information for Recommendation No. 31   Tab KK -Memorandum by Mark Blaskey on juveniles.   Tab LL - Testimony of Mary Berkheiser.   Tab MM - "The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-December 31, 2001," by Victor L. Streib.

 

 

DISCOVERY IN CAPITAL CASES

 

Recommendation No. 32 - Draft legislation to require the prosecution to maintain "open file discovery" of all relevant evidence in capital cases. (Proposed by Michael Pescetta and The Constitution Project)

 

 

 

 

 

Background Information for Recommendation No. 32   Submitted draft language proposes to add a new NRS section 174.2955 to include: §         This legislation may define "relevant evidence" explicitly to include any information in the possession of police and investigative agencies and district attorneys, including all information related to other suspects, codefendants, witnesses, and informants;   §         A case cannot proceed as a capital prosecution until responsible parties in the district attorney's office and all law enforcement agencies involved have certified under oath that a diligent search has been conducted to identify all such information; and   §         Once a capital conviction and sentence are final on direct appeal, the entire prosecution file, including material otherwise subject to the work product doctrine, shall become public record.   In addition, there was a separate proposal to add a new subsection (4) to NRS 174.235 with the following language:  "Due diligence includes the affirmative duty of a prosecutor to learn of evidence favorable to the defense known to others acting on behalf of the state, including the police."   Tab NN - Draft language by Michael Pescetta on discovery to add NRS 174.2955.   Tab OO - Memorandum by Michael Pescetta on discovery issues.   Tab PP - The Constitution Project recommendation on open file discovery.