MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 14, 1995 The Committee on Judiciary was called to order at 8:18 a.m., on Wednesday, June 14, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS EXCUSED: Ms. Barbara E. Buckley, Vice Chairman GUEST LEGISLATORS PRESENT: Senator Alice Constandina Titus, District No. 7 Senator Mark A. James, District No. 8 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Carlos Brandenburg, Ph.D., Nevada Division of Mental Hygiene and Mental Retardation Ben Graham, Esq., Clark County District Attorney/Nevada District Attorneys Association David Barker, Esq., Deputy District Attorney, Clark County James Jackson, Esq., Nevada Public Defender Ms. Suzanne Ramos, Executive Director, Nevada Hispanic Services, Inc. Ms. Paula Berkley, Lobbyist, Alliance for Latinos in Action and Solidarity The Honorable Michael E. Fondi, District Court Mr. John Sande, Lobbyist, Airport Authority of Washoe County Ms. Christina Chandler, Eighth Judicial District Court Ms. Paula Treat, Lobbyist, Nevada Judges Association Mr. Robert Bayer, Director, Department of Prisons SENATE BILL NO. 329 - Provides for certification of court interpreters for Spanish-speaking persons involved in judicial proceedings. Ms. Paula Berkley, Lobbyist, Alliance for Latinos in Action and Solidarity, testified in support of S.B. 329. Ms. Berkley advised the concept has come before two sessions of legislature and died because of lack of funds. Ms. Berkley advised the fiscal note was eliminated in order to get a positive reaction. Chairman Anderson recognized Senator Alice Constandina Titus, District No. 7, sponsor. Due to the Governor's crime bill discussion in Senate Judiciary Senator Titus apologized for her late arrival. Senator Titus informed there are two people who can speak to this bill and deferred to Ms. Berkley and Judge Fondi. Ms. Berkley informed the need for certification of interpreters in the courts was researched by Judge Vega, who was given the assignment from the bar association a few years back. From Judge Vega's summary Ms. Berkley read the Nevada Legislature has recognized the need for interpreters for the language handicapped. NRCP 43B provided the court may appoint an interpreter of its own selection and may fix reasonable compensation. NRS 50.051 provides that an interpreter must be appointed at public expense for a handicapped person who is a party or witness in a criminal proceeding. Additionally, NRS 50.052 provides that the court must appoint another interpreter if the interpreter present is not accurately communicated. Unfortunately the competence of the interpreter is ordinarily something that the court is neither skilled nor trained to assess. It is clear from the statutory language that the Nevada Legislature has overlooked requiring that the interpreter providing these services be qualified by certification. There is a landmark case which basically the decision turned on the due process grounds. The supreme court declared that the defendant was entitled to hear more than the battle of voices at the trial. Basically, the deficiencies that were found in the case were the basic considerations of fairness were not met and justice forbids persecuting a defendant who is not present at the trial. The essential right to confront and cross-examine witnesses was not provided and the right of the effective assistance of counsel was lost as he and his counsel could not consult with one another. Ms. Berkley informed Judge Vega has an on-going program in the Eighth Judicial District Court with a court administrator and interpreter who are very competent in this area. Ms. Berkley advised a certification program has commenced which is growing, but it is not statewide. Ms. Berkley informed this bill would basically make this requirement to have certified court interpreters at the courts throughout the state of Nevada. Again, Ms. Berkley stated the challenge was to institute the development of the program. Ms. Berkley called attention to Section 4 where the chief justice would appoint a committee to develop this program and regulations thereto through a group effort of a district judge, justice of peace/municipal judge, court administrator, university representative, non-profit organization Nevada Hispanic Services and interpreter. Ms. Berkley advised these groups will put together a plan for the state of Nevada based upon the successful program in Las Vegas and the attributes in consideration for Reno-Sparks and rural areas. Ms. Berkley advised one of the considerations discussed on the Senate side was the rural areas will have a difficult time securing certified court interpreters. Ms. Berkley stated 95% of the minorities are in the urban areas. Ms. Berkley informed Judge Fondi would explain his program for the rural areas. Upon conferring with the rural areas, Ms. Berkley stated they call the urban areas for a good interpreter. Hopefully, Ms. Berkley said this program will develop a large pool where referrals can be made statewide. Ms. Steel remarked it sounds like a good program. Ms. Steel questioned if this certified interpreter is an entitlement; if you do not have the certified interpreter, is it an appealable error. The Honorable Michael E. Fondi, District Court, Carson City, responded the Nevada District Judges Association has not taken a position on this bill as a group, but he was in favor of it. Judge Fondi watched this bill for the past two sessions and wondered why it did not get approved because the bill has merit. Judge Fondi advised it started out as a bill only to certify interpreters for Spanish and was broadened to its present form. In direct response to Ms. Steel's question, Judge Fondi replied not necessarily would this be an appealable issue, depending upon the stage of the proceeding. Obviously, Judge Fondi advised in a felony proceeding where the person's liberty was substantially at stake and you did not have a certified interpreter, all stages of the proceedings might be an appealable issue. Judge Fondi noted the amendments to this bill establishes the certification process and a committee to establish rules and regulations to apply statewide. Judge Fondi remarked the rural judge who has someone who had too much to drink on a Saturday night and was coming in on a Monday morning on disturbing of the peace charge, is not necessarily going to have to get an interpreter from Reno or Las Vegas or somewhere else who is certified at substantial expense to the county to come in and take care of this problem. Judge Fondi advised it allows for that particular problem and recognizes that they exist. Mr. Sandoval commented in 1992 he provided assistance on this issue for approval in 1993 legislature. Mr. Sandoval noted nationally there has been due process and equal protection challenges of convictions because they did not adequately interpret within the courtroom. Mr. Sandoval advised the purpose of this bill was to avoid this and ensure that those persons who cannot speak English understand fully what the consequences and courtroom proceedings are. Not only is the interpretation important but the interpreter must understand the legal terminology and Mr. Sandoval stressed the importance of certification. The Honorable Michael E. Fondi, District Court, in addition, testified it was broadened because of concerns expressed in Senate Judiciary primarily by Chairman James as a result of correspondence received from Judge Mosely in Las Vegas. Judge Fondi informed the concern was an equal protection argument, and he did not recognize there being one to require certification for all interpreters. Judge Fondi drew attention that Nevada was once included as a part of Mexico and in 1848 the Treaty of Guadalupe Hildalgo made it a part of the United States. Judge Fondi stated Spanish was the predominant language and it is still predominant other than English in this area of the country. Judge Fondi stressed the need to recognize and establish a certification process as soon as possible. Judge Fondi cautioned a trial can be set aside because proper precautions were not followed. Judge Fondi stated the format established was designed specifically to avoid the fiscal impact, and volunteers are eager to establish the certification process. Judge Fondi advised his interpreter is certified in the federal system in Spanish and there is no certification process in German. Judge Fondi pointed out the federal system does not recognize an equal protection argument and he did not anticipate any significant problem. Judge Fondi advised other concerns addressed by the amendments are very good taking into consideration privileged communication to the interpreter and to the defendant, established the committee and provides for adoption of regulations. Last weekend this matter was briefly discussed at the Nevada District Judges Association conference in Minden where one of the district judges from Las Vegas expressed strong interest in the bill. Judge Fondi encouraged favorable consideration of this legislation as it was well thought out and drafted. Ms. Steel appreciated Judge Fondi's comments and had no problem with the certification program. Ms. Steel asked after a good faith effort has been made a certified interpreter is not available and a qualified interpreter does help in the courtroom, would it still be an appealable error. Judge Fondi replied it probably is an appealable error, but whether it be successful, is the other side of that question because defense counsel are very innovative in finding grounds for appeal. Judge Fondi did not think it would be an appealable error which would be sustained. Ms. Berkley added how would one know they were qualified unless they are certified which has been the difficult part to know who is that fluent. Chairman Anderson requested Ms. Berkley to please wait and not to just jump like that in order to expedite what little bit of time remaining. Ms. Steel commented a defendant is allowed to have any right that they want to help with the case. If one chooses a relative instead of a certified interpreter, is it permissible. Judge Fondi responded it was one of the main problems encountered which this bill addresses. In reference to Section 2, explanation of regulations Judge Fondi read except as otherwise provided by specific regulation of the court administrator, it is grounds for disciplinary action for certified court interpreter to act as an interpreter in any action which espouses a party, etc. Judge Fondi related one of the problems he encountered in the courtroom has been a friend or a family member comes with a defendant and it is very clear to him when he is addressing the defendant that what he is saying is not what is being interpreted. Judge Fondi stated when a canvas is made particularly when the defendant enters a guilty plea to a particular offense, he has to be very well satisfied that they are understanding what was said and verbatim translation and responses. Generally, Judge Fondi noted with a family member a discussion transpires rather than an interpretation which justifies the importance of certification in this part of the process. Chairman Anderson requested Judge Fondi to provide an explanation of the term canvassing. Judge Fondi defined canvas as meaning when a defendant enters a guilty plea to a criminal offense in district court, a requirement that the plea is entered voluntarily must be established. In order to do that a number of questions have to be answered with regard to that particular plea to assure that the defendant understands what he is doing. Judge Fondi stated the elements of the offense that the defendant is pleading guilty to and what the state's burden is as proof beyond a reasonable doubt. Judge Fondi said he has to make sure the defendant understands what the penalty is and what the court's function is in the sentencing process and what rights the defendant is giving up by entering the plea. Mr. Sandoval asked what the certification process was in southern Nevada. Ms. Berkley advised a written test is given three times a year to volunteers based on California and federal tests. Upon passage of the written test, the volunteers are given an oral test to make sure the interpreter can interpret and speak at the same time. After this process Ms. Berkley advised the interpreters become certified and Las Vegas has approximately 300 certified interpreters in different languages. Mr. Sandoval asked if she envisioned bringing the Eighth Judicial District Court interpreter to northern Nevada. Ms. Berkley confirmed. Senator Titus emphasized an interpreter is not the same as a translator and is a person who has to speak two languages at the same time. Because of this difficulty Senator Titus advised this is a problem when bringing in a family member or a friend. Secondly, Senator Titus stated this person not only has to know two languages, but needs to know how the court works. Senator Titus stated a person who speaks English who goes into a courtroom just like the explanation of canvassing, it is an alien world and very intimidating. Senator Titus stressed court procedures must be understood. Senator Titus urged passage of S.B. 329 to pull together the crime and victim bills in this session and it is important for all aspects of the process. Mr. Carpenter requested explanation of how it would work in the rural areas. Senator Titus stated it was a concern of the Senate Judiciary Committee. Senator Titus advised the committee that will develop the procedure and regulations for certification, leeway was given to the committee to develop regulations to allow for exceptions in rural areas, provided on l. 18. Senator Titus advised this will allow the determination when a certified interpreter is needed. Senator Titus informed if it is a disturbing the peace or trespassing, an interpreter is not needed. However, Senator Titus advised if it was a capital case in the rural area, it would be important to have a certified interpreter and they would be able to draw from the pool of interpreters provided in Clark or Washoe Counties. From the rural areas, Mr. Carpenter stated there would be people interested in getting certified; but, the person conducting the certification class should travel to the rural area. Mr. Carpenter asked if the county will have to pay for the expense of travel. Judge Fondi responded the cost of interpreters is budgeted item in district court's budget and commensurate budget item in the justice court for the same type of services. Judge Fondi stated it would be ideal to establish the fees for interpreting services. For interpreters to make it worth their while to go through the process of certification, Judge Fondi stated will depend upon how much activity there is in that particular area where the certification is being sought. Generally, Judge Fondi stated it does not make a lot of sense to have a lot of interpreters in Elko, Ely, or counties without a need for translation services, as opposed to Las Vegas, Reno, Carson City, where there are substantial suspects. Judge Fondi informed his interpreter charges $35 per hour and this is small in terms of the case being overturned and the expense involved to redo the process again. Mr. Carpenter remarked there is a great need in the rural areas due to the large Spanish population in Elko, White Pine, and Humboldt. Mr. Carpenter stated consideration of the cost of getting interpreters certified needs to be investigated. Chairman Anderson declared the judiciary committee has just gone to a subcommittee. Senator Titus responded the certification process does not involve a program and is only an examination. Senator Titus advised when the advisory committee establishes statewide program, provisions will be made to test throughout the state. Senator Titus advised the course is not long and involves a day or two. Ms. Ohrenschall applauded the excellent idea and program. Ms. Ohrenschall commented the element of trust is sometimes as important as the accuracy of the interpretation. When Ms. Ohrenschall first passed the Nevada bar, she was appointed to a federal case to represent an indigent who was from a small village in Mexico. Being fluent in Spanish and also fresh out of law school, Ms. Ohrenschall conferred with her client in jail and advised him of his constitutional rights and what a great country this was to give him a public defender. Ms. Ohrenschall informed her client refused to discuss the case with her and told her she was a government stoolie, that is the way it is done in Mexico and that is how it is done here. Ms. Ohrenschall assumed if a certified interpreter were there to fulfill all the needs and asked if it would preclude an unofficial interpreter also being in attendance that the defendant may have more trust in and be more inclined to put a question to. Judge Fondi stated no because the essential part of the process that is concerned is the actual court proceedings. Judge Fondi noted the trust could be established in the non-court environment, like visiting in jail, prison or community. Judge Fondi stated there is nothing being sought to prevent discussion with the accused by family members and the certified interpreter if necessary outside the courtroom environment. Judge Fondi stated what is desired is a certification process in order to protect the courtroom environment and everyone understands the proceedings. Recognizing the problem in the rural areas, Judge Fondi illustrated ranchers appearing in justice court to interpret for their ranch hands. Mr. Manendo expressed his concern was if for some reason they are not receiving correct interpretation, he wondered how many instances it has occurred where they convicted themselves without knowing it. Mr. Manendo said how many could possibly be in prison wrongly. With this great program, Mr. Manendo remarked was a responsible approach to ensure that innocent people are not taking up prison space. As far as costs are concerned, Mr. Manendo stated it is a beneficial program and commended the sponsor. As Judge Fondi mentioned, Senator Titus advised Judge Vega and Judge Porter of Las Vegas are very supportive of this legislation also. Ms. Paula Treat, Lobbyist, Nevada Judges Association, testified in support of S.B. 329. Ms. Treat advised the rural amendments answered the concerns of a few judges and urged passage. Ms. Suzanne Ramos, Executive Director, Nevada Hispanic Services, Inc., testified in support of S.B. 329 and stated it is crucial to have certified interpreters. Ms. Ramos advised that sometimes family members are unable to adequately interpret court proceedings. SENATE BILL NO. 436 - Revises provisions governing reports required of state public defender. Nevada Public Defender James Jackson apologized to the committee as settlement of two trials caused his delay. Mr. Jackson testified S.B. 436 is a clean up measure. In 1991 Chapter 260 of NRS was amended to place requirements on the State Public Defender. Mr. Jackson advised Chapter 260 relates to county public defenders and this bill moves that provision out of Chapter 260 into Chapter 180 which deals with the public defender's office. Mr. Jackson informed none of the requirements and law is changed with respect to what he has to report to the counties. SENATE BILL NO. 314 - Abolishes criminal defense of insanity. David Barker, Esq., Deputy District Attorney, Clark County, testified in support of S.B. 314. Mr. Barker presented the facts based upon a prior Senate Judiciary hearing. In essence Mr. Barker advised the not guilty by reason of insanity plea would be eliminated. Since the 1860's the M'Naghten standard for criminal defendants, a defendant can be found not guilty by a jury or judge if it is determined that he does understand the nature or quality of acts or wrongs. Ultimately, an individual can basically for purposes of criminal responsibility walk free of the charge if a jury determines that mental state. Mr. Barker advised it was a context with the legal system that deals in absolutes and does not recognize there are varying degrees of mental illness. It requires a jury to interpret significant mental diagnosis in terms of an individual in make the ultimate finding and Mr. Barker stated in many cases these findings most generally occur in cases that have very egregious facts, such as attempted assassination of President Reagan by John Hinckley. This defendant was found not guilty by reason of insanity, Mr. Barker informed. Since the initial bill draft, the amendments involve the further finding of guilty but mentally ill that address potential treatment of a defendant upon a finding of guilt. Mr. Barker stressed it was important to recognize that the abolition of not guilty by reason of insanity allows a judge or a jury to look at the futility of the circumstances involving a defendant's actions and allows the judge or jury to make a finding on what an individual did, then take into consideration what his mental state was at the time. Mr. Barker stated this does not preclude which was an argument that the prior hearing of a defense attorney aggressively arguing mental state as affecting someone to perform specific intent. If the defense attorney determines it is the best course of action, Mr. Barker advised they can still do that if they feel it is in their client's best interest. Mr. Barker was not aware of interest in constitutionality of this, but based upon their research, this abolition is constitutional and was recognized by the U. S. Supreme Court in Powell v. U.S.. Mr. Barker advised Nevada would be one that has had the wherewith all to abolish insanity as a potential defense. Mr. Barker informed its history goes back to the 1860's in English common law where applications were made in a different time and are not relevant to our modern, more dangerous times. Mr. Schneider inquired how many insanity pleas are made. Mr. Barker advised in Clark County there are approximately 15 insanity pleas per year. Based upon the number of cases filed, Mr. Barker informed it is insignificant. Mr. Barker advised they occur in egregious cases, such as a violator who walked into a Henderson casino and shot a patron point blank in the head with a .38 in front of the victim's family and 10 other patrons. Mr. Sandoval asked if a person was found not guilty by reason of insanity, are they sent to a mental institute. Mr. Barker informed they are turned over to the department of mental health and hygiene for treatment. Mr. Barker stated they can be maintained in the facility depending on the diagnosis there for up to ten years; but, in no event longer than that. Mr. Sandoval inquired after the ten years, if they become sane in that ten year period, what occurs. Carlos Brandenburg, Ph.D., Acting Administrator, Nevada Division of Mental Hygiene and Mental Retardation, previously the Director of Lake's Crossing, Director of Forensic Services for Nevada, stated most of the individuals adjudicated are incompetent to stand trial or not guilty by insanity are sent to the division. Dr. Brandenburg advised the division is in support of this bill with certain minor amendments. Dr. Brandenburg stated his concern is in Section 14, subsection 3.b., of the bill which states that a judge may impose a sentence and order treatment provided by the department of prisons or by mental hygiene and mental retardation division. Dr. Brandenburg would prefer that the treatment be provided by the department of prisons. Basically, if this provision is approved, Dr. Brandenburg stated they would be put into the position of providing treatment to pretrial offenders, individuals who are trying to regain competency in mixing them with individuals who have already been adjudicated, guilty. In the past Dr. Brandenburg advised it created a great deal of turmoil, as well imagined whenever there are inmates in the facility who are looking forward to a day in court with the possibilities with some type of relief to inmates that have already been found guilty and adjudicated as guilty and basically are not seeking any type of treatment. Dr. Brandenburg's concern is one of separating the two, having them sent to department of prisons for treatment. Once department of prisons determines the inmate could be paroled, then the department of prisons could contact the division on hygiene and retardation and they could follow that treatment. The issue in terms of not guilty by reason of insanity aside from the fact there may not be a lot of cases, Dr. Brandenburg stated was one of jurisdiction. When a person is found not guilty by reason of insanity, Dr. Brandenburg advised the issue is one of jurisdiction. Basically, when a person is found not guilty by reason of insanity, they are sent to the division of mental hygiene and mental retardation under NRS 175.521. Dr. Brandenburg called attention to that statute and pointed out the person is committed to the division of administration under section NRS 433 which means they are basically sent to him as an involuntary civil commitment. Dr. Brandenburg stated that does not necessarily mean they will be in their facility for ten years, but they will be institutionalized for as long as they are deemed to be a danger to self and others. In other words, if a person is not guilty by reason of insanity, gets on medication, stabilized and the doctors feel that they are no longer a danger to self and others, they can be released. Dr. Brandenburg advised the release can come within two months to six months. The issue raised by district judges and district attorneys to Dr. Brandenburg is one of jurisdiction. Once that person is released from his facility, the psychiatrists, the division of mental hygiene and mental retardation, Dr. Brandenburg contended the criminal justice system does not have any jurisdiction over this person. Dr. Brandenburg stated the guilt for mentally ill statute basically imposes one of jurisdiction. Dr. Brandenburg said in other words if a person is released from the department of prisons, and they are sent to an outpatient program run by the division of mental hygiene and mental retardation and the condition of parole is one of medication compliance, and if the person fails compliance, there still is the jurisdiction where department of prisons and parole and probation can bring that person back before a judge to determine why he is not taking medication. With the Not guilty by reason of insanity that particular jurisdiction does not exist, Dr. Brandenburg noted. Roughly in Nevada there have been 21 not guilty by reason of insanity verdicts. Whenever there is a notorious landmark case, when it is used that offender is committed to the division of mental hygiene and mental retardation and once they are released, no one has jurisdiction over these cases. Chairman Anderson requested Dr. Brandenburg to point out the line in the bill he has concern with. Section 14, subsection 3.b., p. 6, ll. 6-7, last sentence, Dr. Brandenburg informed was of concern. Chairman Anderson asked if Dr. Brandenburg wished these lines moved or modified. Dr. Brandenburg replied he would prefer a provision where the offender would be sent to the department of prisons. Dr. Brandenburg informed department of prisons has their own psychiatric facility, treatment programming and his division could be used as consultants or as primary treatment facility once they do leave the department of prisons. Chairman Anderson asked Dr. Brandenburg if he perceived at l. 5, treatment shall be provided by the department, rather than may be. Dr. Brandenburg concurred. Chairman Anderson inquired of Dr. Brandenburg if he conferred with department of prisons regarding his recommendations. Dr. Brandenburg replied written testimony was provided to the chair about this issue and it was presented to the Senate Judiciary previously. Mr. Barker advised his recollection was that no one from the department of prisons testified at the Senate hearing; however, they do a classification process as part of every sentence. Chairman Anderson stated he wished to ascertain why the line was not removed upon request by the Senate. Mr. Barker clarified this recommendation was not part of the hearing at that time, as Dr. Brandenburg did not participate in the Senate hearings. Mr. Humke questioned in Section 14, subsection 3.b., if it sets up a strange standard for treatment where it is presumed that a reasonable person would accept treatment and asked if this was a type of guardianship arrangement that is set up for the offender. Dr. Brandenburg understood if the person is found to be guilty of the crime and at a subsequent hearing, the person is found to be mentally ill and the judge imposes treatment in the department of prisons, that person would be conveyed to the drug department of prisons to be housed in their mental health facility with treatment imposed. Dr. Brandenburg stated in terms of guardianship it would be just like committing that person and they would have to undergo psychiatric treatment. Mr. Humke commented it is a sanity hearing by the judge in that treatment was prescribed. Dr. Brandenburg understood it to be a bifurcation of the process where the guilt or innocence being determined and the issue of mental illness being determined. Dr. Brandenburg stated the person is sent to the department of prisons for treatment. If it is determined by a court that a person needs treatment more than incarceration, Mr. Humke requested to know what happens. Dr. Brandenburg advised currently if a person pleads or by a jury verdict is found Not guilty by reason of insanity, the person is evaluated by mental health professionals appointed by the court. From past experience, Dr. Brandenburg advised they have been sending these individuals to his division for evaluation. The question of the evaluation is whether or not they are mentally ill at this moment in time. If the person is not mentally ill, the report is made to the judge and the judge has no recourse but to release the person who has been found Not guilty by reason of insanity. Dr. Brandenburg stated the Not guilty by reason of insanity is the M'Naghten rule at the time of the offense. If the person is not mentally ill now, they are basically released. If the person is mentally ill, Dr. Brandenburg advised they are sent to the division of mental hygiene and mental retardation pursuant to the NRS 433 of being a danger to self and others as a result of mental illness. Dr. Brandenburg stated they are to be kept in his facility until they feel they are no longer a danger to self and others. As a practical matter, Mr. Humke asked how long a person is detained in Lake's Crossing facility. Dr. Brandenburg advised the average length of stay is approximately 96 days. Mr. Humke asked if it is all pre-conviction time. Dr. Brandenburg affirmed. Based on Dr. Brandenburg's request for this amendment, Mr. Humke inquired if Dr. Brandenburg had any desire for convicted persons to be incarcerated at the Lake's Crossing facility. Dr. Brandenburg advised it was exactly what he was trying to avoid. Mr. Humke stated he was disappointed department of prison's officials were not present, as it makes it very difficult. Chairman Anderson commented the purpose of Lake's Crossing was for prisoners who had mental problems in part. Dr. Brandenburg advised this was not correct, as ten or twelve years ago when department of prisons did not have a mental health facility, his division developed into a cooperative relationship between the prisons and the division where they would take their inmates for short periods of stabilization and they would be returned. Dr. Brandenburg recalled the notorious case of an inmate who walked away from Lake's Crossing and proceeded to rape two women. Subsequent to that incident, Dr. Brandenburg said it was bad policy for Lake's Crossing Center which was mandated by the legislature to provide treatment for incompetent offenders to provide on-going treatment to incarcerated inmates. Shortly thereafter, Dr. Brandenburg advised the department of prisons built their own mental health facility and they have their own psychiatric unit within the department of prisons. Mr. Barker commented the confusion may be competency with the finding of not guilty by reason of insanity. Mr. Barker stated many defendants are sent to Lake's Crossing pre-adjudication because they are unable to communicate with their lawyer about the facts of the case or their mental state was such that a judge determines they are unable to proceed in a criminal process. Mr. Barker advised the statutes mandate the offenders go to Lake's Crossing to receive treatment and it is only after a panel determines the offender is competent, then the criminal process is resumed ultimately to an adjudication of guilty or not guilty by reason of insanity. Senator Mark A. James, District No. 8, sponsor, testified in support of S.B. 314 and advised this bill would abolish the defense of insanity in criminal prosecutions. Senator James stated it is a defense that flies in the face of personal responsibility in the criminal justice system which undermines the public confidence in cases of heinous crimes. Senator James advised the elimination of the defense does not eliminate the constitutional necessity that a person be able to understand the charges against them, nor does it prevent them from preventing evidence of their mental capacity to defeat an element necessary for the mens rea for the crime with which they are charged. Senator James stated it does prevent them from saying they were crazy so I did not understand the difference between right and wrong after a person was killed or whatever wrongful act. Senator James proposed this bill to address the problems identified and it is wholly inconsistent with what was set in the criminal code as the basis of the person's responsibility. Senator James stated this is the defense that Mr. Hinckley who shot President Reagan was able to successfully engineer. In a recent television interview, Senator James understood if Mr. Hinckley had not had wealthy parents who requested that he be sent off and kept confined, he would have been a free person after committing that crime of shooting the President of the United States and severely wounding Mr. Brady and others. Recently, on television Senator James noted Mark David Chapman, who shot John Lennon was featured and got off on the same kind of M'Naghten defense that Hinckley did. Senator James commented there are people who are acquitted by reason of insanity and the fiscal note of the bill lists people over the years who have been assigned to civil confinement after successfully avoiding criminal responsibility with this defense. Secondly, Senator James advised it is a defense often raised in criminal prosecutions and one that has to be sorted through and creates great fiscal impact to those who prosecute crimes in our state. Senator James advised this bill does recognizes there are offenders who do need mental health treatment but should not be absolved of criminal responsibility for the crime. In Section 5, Senator James stated a plea of guilty but mentally ill can be entered but it is not a defense. Senator James explained there are two hearings held: one to determine if the person is mentally ill at the time of the crime and the second hearing to determine if the person is still mentally ill. If it is found they are mentally ill, then the judge is required as part of the sentence to order the defendant be given such treatment in the system as is available, assuming a reasonable man would consent to treatment. Senator James clarified the bill replaces the plea of guilty but mentally ill with the plea of not guilty by reason of insanity and repeals the provision that recognized the plea of not guilty by reason of insanity. Senator James advised other states following the abolition of this defense are: ID, UT, MT. Chairman Anderson drew attention to p. 6, Section 14, ll. 6-7, and advised Senator James of Dr. Brandenburg's concerns and recommended amendment to change the language in the bill that "the treatment shall be provided by the department of prisons;" and to delete "mental hygiene and mental retardation division of department of human resources pursuant to NRS 433A.450." Chairman Anderson advised Mr. Barker from the Clark County District Attorney's Office had somewhat agreed with this proposed change. Chairman Anderson inquired if Senator James had an opportunity to examine this proposal. Senator James was not aware of this proposal. Chairman Anderson inquired if the department of prisons testified at the Senate Judiciary hearing. Senator James stated he thought they did but maybe they did not. Mr. Ben Graham advised the prisons department was contacted and were in on the formation. Mr. Graham stated what was not brought out, if it mandates placing people into Dr. Brandenburg's unit, the not guilty offenders in with those people who are there for evaluation, apparently the prison does contract now with Dr. Brandenburg's division. It is redundant as they would be taking part in the treatment process even if they were removed. Chairman Anderson stated that was the essence of Mr. Barker's presentation and Dr. Brandenburg's testimony. Chairman Anderson inquired during their testimony whether they had an opportunity to present to Senator James their desire to have that language removed. Mr. Goldwater asked if the only time the defense is used is in the violent heinous incidents or is it used at other times. Senator James advised it is used in other cases as well, and this bill provides it would not be a defense in any crime. Mr. Ben Graham commented on involvement on the bill from the district attorney's standpoint not so much that the insanity defense is successful, as it is very seldom successful. Mr. Graham reviewed a proposed amendment, attached as (Exhibit C). Mr. Graham stated the M'Naghten rule worked well for 50-70 years and over the time period it was diluted and is always confusing. Mr. Graham advised for this reason they are supporting this bill. Mr. Graham advised if one is found not guilty by insanity, it is complete defense and one essentially walks away from committing the crime. If one is still in danger and in need of supervision, Mr. Graham advised they can be civilly committed but after they are well, they can be released. Mr. Graham informed insanity defense can still be used to show specific intent. Mr. Humke commented the fiscal note is not a fiscal note as to the state of Nevada. Mr. Humke noted the prison has a fine medical and mental health facility. Mr. Humke requested clarification about the local fiscal impact. Mr. Graham was not positive where the local impact was derived from and commented it may be less. Mr. Graham advised if there are any insanity pleas with diminished capacity argument, the psychiatrists and psychologists are consulted and the hearings outside the presence of the jury are conducted. Mr. Graham's analysis of the bill did not see that it will be anything more fiscal impact than what is doing today, and possibly less. In some cases Mr. Graham informed it will result in a plea as opposed to going through a lengthy jury trial where the defense has to call experts in and likewise the state would have to call experts in to rebut the defense. Additionally, Mr. Graham stated it would eliminate the appeals which have a significant fiscal impact on re-trials. As a practical matter, Mr. Humke inquired in non-infamous cases, smaller cases, are those cases pled if the defendant promises to obtain treatment. Mr. Graham replied that this does not happen on any significant occasion. Mr. Graham stated 95-97% of the cases are plea bargained. Nevada Public Defender James Jackson testified in opposition to S.B. 314. Mr. Jackson remarked clarification about the insanity defense is warranted as there has been indication that it is abused by the defense bar. Mr. Jackson advised in his four years as a public defender, they have asserted this defense one time in an infamous case. One of the things that must be recognized, Mr. Jackson stressed, it is one of the extremely few situations in criminal law where the burden shifts to the defendant, typically the state bears the whole burden. In this situation before this defense can be asserted, Mr. Jackson advised there has to be some determination that there issue and the jury must be shown by a preponderance of the evidence that it is, in fact, the defendant was insane. Mr. Jackson stated he was not here to advocate that people should escape personal responsibility. Mr. Jackson pointed out this is a rule that has been in place for well over 100 years in the United States and Nevada since its statehood. Mr. Jackson advised it is not a defense that is used often and it is certainly a defense that is rarely successful because juries in this state clearly recognize the need for personal responsibility. Mr. Jackson stated juries recognize the burden placed on a defendant in proving this defense and they typically reject it. Mr. Jackson indicated in mental health cases, it is typically on the front end, it is recognized by not only the defense but by the prosecution of a person's mental state and their possible incompetence. Mr. Jackson advised this is quite different from insanity. In 1991 Mr. Jackson advised legislation was passed with the support of Nevada Judges Association in working with Dr. Brandenburg to extend competency treatment in determination to misdemeanors. Mr. Jackson noted these people are being front-ended and does enter into the negotiations which occur in probably 98% of the cases in some areas. Mr. Jackson did not receive a copy of the fiscal note, but he knew from personal experience that the true number of successful insanity defenses are quite small. Mr. Jackson stated the number of times that it is pled in terms of the thousands and thousands of cases filed in this state is relatively small. Mr. Jackson remarked it cannot be fairly said that the defense bar truly abuses this defense. Recognizing that the trend seems to be that this is going to be abolished, Mr. Jackson has on many occasions spoken with Mr. Graham about S.B. 314. Mr. Jackson stated there is no way to truly eliminate the defendant's ability to place into evidence conditions of his mental health and this bill will continue to allow it. With respect to local fiscal impact, Mr. Jackson remarked at best it will remain the same. Mr. Jackson advised the person's ability to establish that mens rea, intent to commit the crime, will have to be brought forward. Mr. Humke questioned Mr. Jackson if he was fully in opposition to the bill. Mr. Jackson replied he felt strongly both ways. Mr. Jackson said if the bill is going to pass and abolish the insanity defense which he does not think is necessary, then he would rather see it come out in this form. Mr. Jackson said the reason it is not necessary is that it is not something that is being abused in his estimation and is not something that when used is all that successful because it places the burden on the defendant. Mr. Humke commented the defense bar is duty bound to use a defense only when they feel it is justified and can be proven. Mr. Humke advised the courts have to instruct the jury and surmised there is conceivably a defendant who could benefit from the defense as it exists now. Mr. Humke asked Mr. Jackson if he agreed the defendant could go free if the jury agreed. Mr. Jackson replied it was a difficult question to answer because he is not real sure how it operates. The one time it was tried it did not work. Mr. Jackson stated his understanding of the statutes is if a person is found not guilty by reason of insanity, they can be detained up to the same amount of time that they would have otherwise been found guilty and sentenced. Mr. Jackson stated it involved continued treatment at Lake's Crossing or at the mental health institute and hearings before the judge who tried the case to determine if the judge is in agreement. Mr. Jackson did not go so far as Dr. Brandenburg in saying the judge has no choice and deferred to his judgement because he is an expert in this field. The result is, Mr. Jackson stated he supposed it could happen, a short term stay in a mental health facility, treatment rising to the level the offender is not a danger to himself and the community, then he supposed they would be released. Mr. Jackson understood the discomfort with this. In looking at the M'Naghten rule and insanity defense in this state, Mr. Jackson stated it is achieving what it was intended to do. Mr. Goldwater inquired if a violator was off his rocker in the commission of an act, how would he be defended. Mr. Jackson responded it allows a plea to be entered of guilty but mentally ill and did not see where the tact changes in terms of strategy because the mental health experts will be called to testify. Mr. Jackson stated the determination must be made if the person was competent. Mr. Jackson stated it will avoid the discomfort that could happen if the person is found not guilty by reason of insanity and in a short term is released. Chairman Anderson explained to Mr. Robert Bayer, Director, Department of Prisons, there was a proposed amendment in recognition the prison system has ultimate control of a prisoner once he has been adjudicated. In reference to p. 6, l. 5, Section 14, subsection 3, Chairman Anderson advised it was proposed to amend to read: "the treatment shall be provided by the department of prisons;" eliminating whereby the mental hygiene and mental retardation division, department of human resources pursuant to NRS 434A.450. By the elimination of this portion, Chairman Anderson reiterated it would mean the Lake's Crossing would be able to continue to provide treatment prior to final adjudication as preparation for trial. Occasionally, Chairman Anderson stated the division of mental hygiene and mental retardation takes inmates that may need specialized treatment on a contractual basis. Mr. Robert Bayer, Director, Department of Prisons, advised he was caught off guard; but his initial reaction is Lake's Crossing does handle some of the inmates in prison at some point where they need a certain type of therapy or removed from the prison environment. Mr. Bayer advised they also have their own mental health program which is capable of dealing with a wide range of mental health problems. Mr. Bayer stated there would be no fiscal impact if it was changed and would not change their operation. Mr. Bayer was unsure if an inmate was sent for therapy to Lake's Crossing, if a cost would be incurred that they are not now paying for. Otherwise, Mr. Bayer was confident they were capable of handling it. Chairman Anderson asked if Mr. Bayer testified to this bill on the Senate side. Mr. Bayer was not aware of anyone testifying on this bill at the Senate Judiciary hearing. Mr. Humke advised Dr. Brandenburg offered the amendment the Chairman spoke to which sets out that once a person has a conviction of guilty but mentally ill, it is clear that the prison would provide for all needs of that prisoner and not the mental health system. Mr. Humke asked if Mr. Bayer could make such a commitment. Mr. Bayer advised Dr. Brandenburg has been working with the prison for many years and he knows more about the mental health system than he does. Mr. Bayer remarked if Dr. Brandenburg thinks the amendment will work, he will commit to it. Chairman Anderson asked if it was conditional. Mr. Bayer said he did not put any conditions on it. Based upon the fact it was an amendment from Dr. Brandenburg, Chairman Anderson surmised Mr. Bayer is comfortable with the amendment. Mr. Bayer affirmed. Mr. Humke questioned Mr. Bayer if he felt his present mental health facilities are capable of caring for the needs of prisoners who may one day carry the sentence of guilty by insanity. Mr. Bayer replied they are searching for the mental health director and hoped the position will be filled with someone possessing the skills needed and this input is helpful to Mr. Bayer in terms of who he selects. Mr. Bayer observed the prison system can handle anything. SENATE BILL NO. 415 - Revises general procedure for entry upon property subject to acquisition by eminent domain. Mr. John Sande, Lobbyist, Airport Authority of Washoe County, testified in support of S.B. 415. Mr. Sande advised this bill involves precondemnation of inspection of property. With today's environmental laws, Mr. Sande noted if one takes title to property you may be responsible for cleanup if it is polluted. Obviously, any government entity or airport authority Mr. Sande stated is concerned about whether or not there is any pollution on the property. Mr. Sande advised this bill is to clarify that when inspection of prospective condemned property should include soil investigation, test borings, appraisals, evaluation and any improvements thereon to make sure it is clear an investigation can be conducted for environmental problems. Mr. Sande said many years ago this initial law was passed when it was not a concern and was mainly to go and see if the land was there and surveyed. Under NRS 37.050 Mr. Sande advised one has a right as a local government or an airport authority to go onto property to make an examination; but what is the procedure if the owner does not consent. In subsection 2 of Section 2, ll. 17-25, Mr. Sande recited it provides in the event the owner does not consent, then one has a right to petition the court on affidavit or testimony. The court will order you to go onto the property only during reasonable times and to cause the least inconvenience to the owners and occupants of the land. Mr. Sande advised the first bill draft was patterned after California which was more complex. In conferring with Mr. Brian Hutchins of Department of Transportation, Mr. Sande was apprised of DOT's statute which would meet the concerns. In the event of passage of this bill and an owner refuses to comply with the soil inspection, Mr. Sandoval asked if the contamination report must be given to the EPA. Under present statutes Mr. Sande advised if pollution is discovered it must be reported to the EPA. If the property owner knew about the pollution, Mr. Sande advised they would be duty bound to report it under the law. In this condemnation area, unless it is really bad pollution, Mr. Sande advised if there is some contamination on the property, one would decide the fair market value of the property considering the fact that some entity will have to clean it up. Mr. Sande stated this has occurred in the experience of his client. They have identified property and it affects the ultimate fair market value the property owner can receive for the property. Mr. Humke inquired if the airport authority were able to do the soil testing would they rather reduce the offer under eminent domain or pre-eminent domain action or would they just abandon the property and not purchase it. In most cases, Mr. Sande advised they would have no choice but to acquire the property because usually when the decision is made to acquire the property for eminent domain purposes, it is part of their master plan. Mr. Sande remarked they do not have the luxury of leaving one little site in private ownership surrounded by public ownership. Mr. Sande speculated they would negotiate with the property owner which are negotiated before they go to condemnation. Mr. Sande said they negotiate and maybe they ask that the property be cleaned up and agree to deduct the expense from the fair market value. Mr. Humke hypothetically posed a fifteenth owner of a piece of property worth $100,000 and the airport authority is nearby and negotiates a purchase. If the cleanup costs would cost $95,000, is the offer then $5,000. Mr. Sande replied it depends on who is cleaning it up. If the owner cleans it up, obviously, it would be $100,000. Mr. Sande remarked this is a hypothetical example but is not too unusual and is similar to Stead with substantial pollution left behind by the military. One local developer was an intermediary, Mr. Dermoddy, and ultimately in this circumstance, Mr. Sande suggested the source who was the cause of the contamination, federal government, should do the cleanup. Because of federal and state law, Mr. Sande advised if you are an owner of property you are liable for cleanup even though someone else may have caused the contamination. Mr. Humke questioned what recourse do property owners have who bear the cleanup costs and goes down the line and there is no one home. Mr. Sande responded they ultimately take the burden. Mr. Humke recognized this legislation is designed to eliminate unfairness to a government entity in a condemnation and discovering they bought a pig in a poke, but it is not necessarily fair to unwitting property owners. Mr. Sande replied this bill does not impact them in any sense. In the private area, Mr. Sande advised if he were to negotiate for the purchase of property, environmental assessments are routinely done before purchase. In all areas not only condemnation but also in the private area, Mr. Sande advised malpractice is committed if a lawyer does not recommend some type of environmental assessment made to see if any pollution exists on the property which is standard nowadays. Mr. Sande stated they want it clarified those inspections include doing test borings, etc.; and also sets forth the procedure to go to court and get authority if someone denies access. As far as environmental problems, Mr. Sande advised there are federal and state laws that address this issue. Mr. Sande noted legislation was passed regarding underground storage tanks with leaks. Mr. Sande stated the scale is balanced in order to have a clean environment. If there is pollution, Mr. Sande remarked someone will be required to pay and usually it is the deep pocket. Mr. Carpenter noted soil investigations, test borings, etc., were in the amendment, but examinations, surveys, archeology and other preparation of environmental impact were not and asked if the language covers all of those areas by the elimination of the other wording. Mr. Sande replied the legislative intent is very clear and soil investigations and test boring are what is done in the environmental area to achieve environmental assessments. Mr. Sande reassured it is the same as what the DOT's statute provides. Mr. Carpenter informed of a recent ruling by a Las Vegas judge ruling the City of Las Vegas went too far in condemning land on the premise it was for public use, but it was turned over to private enterprise. Mr. Carpenter asked for Mr. Sande's response to if the airport authority has done similar acts. Mr. Sande replied the airport authority does condemn land and obviously they have people who will lease it strictly for airport use, i.e., rental cars, concessions. Airports try to gain revenue from the use of the airport but it is all related to the operation of the airport. Mr. Sande advised they have very strict plans they have to follow and the funding comes from the federal government for acquiring these properties, so they must comply with the federal rules and regulations in condemnation. Mr. Carpenter asked if there was a piece of land the airport authority wishes to purchase that is polluted. Mr. Sande advised he was not aware of any and he knows there are a couple of properties where they have found pollution resulting in litigation as to who is responsible for the pollution at Stead. There being no further business to come before the committee, Chairman Anderson adjourned the meeting at 10:25 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 14, 1995 Page