MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session April 4, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, April 4, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee GUEST LEGISLATORS PRESENT: Senator Dean A. Rhoads STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Ben Graham, Chief Deputy, Clark County District Attorney, Legislative Representative, Nevada District Attorneys Association Paul Sawyer, Member, Oregon and California Trails Association Curtis Risley, Attorney, Sierra Pacific Power Company Eva Collenberger, State Representative, Families of Murder Victims Charles Thompson, Assistant District Attorney, Clark County David Barker, Chief Deputy District Attorney, Clark County James J. Jackson, State Public Defender John C. Morrow, Chief Administrative Deputy, Washoe County Public Defender Steven G. McGuire, Chief Deputy, State Public Defender SENATE BILL 61: Requires person in custody to sign waiver of extradition proceedings as condition of release. The first order of business before the committee is the return to the committee of Senate Bill (S.B.) 61 which was returned from the Assembly with proposed amendments. The chairman called Ben Graham, Chief Deputy, Clark County District Attorney, Legislative Representative, Nevada District Attorneys Association, to explain the changes. Mr. Graham reported the original draft of the bill was "selfish" because it addressed an issue unique to the job of extradition chief in connection to waivers signed by persons who bail out of jail. As the bill progressed through committee, it became apparent that people are released on parole, probation, and through the "209" program (drunk driver convictions). It was determined that all of these people, who might be subject to the temptation to "abscond" from the jurisdiction should be required to sign a waiver of extradition. Thus, the bill covers all the imaginable situations where a person might be released from direct custody, but is still under the jurisdiction of a court in the state. Mr. Graham requested the committee concur with the amendments. Senator James asked the witness to confirm all possible situations have now been included in the bill. Mr. Graham replied in the affirmative. The chairman called for questions from the committee. There were none. He then called for a motion for the committee to ask the Senate to concur in amendment No. 53 from the Assembly. SENATOR LEE MOVED TO CONCUR IN AMENDMENT No. 53 TO S.B. 61. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER, McGINNESS, AND TITUS WERE ABSENT FOR THE VOTE.) ***** The next order of business was introduction of bill draft requests (BDRs). BILL DRAFT REQUEST 7-264: Makes various changes concerning limited liability companies. Senator James called for a motion for committee introduction of the BDR. SENATOR WASHINGTON MOVED TO INTRODUCE BDR 7-264. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS ADLER, McGINNESS, AND TITUS WERE ABSENT FOR THE VOTE.) ***** SENATE BILL 327: Clarifies limitation of liability of owner, lessee or occupant of premises who allows persons to enter or use premises for recreational purpose. ASSEMBLY BILL 313: Revises limitation on liability for injuries to persons who enter or use premises of another to cross over to public land or for recreations purposes. Senate Bill (S.B.) 327 was introduced to the committee by Senator Dean A. Rhoads. Senator Rhoads told the committee the bill addresses liability of landowners or holders. A group of individuals in the Elko area who became interested in the California trail and the Hastings trail, he told, have uncovered many interesting historical facts about the area. These individuals wish to erect a kiosk which will house this historical information on private property in the area, he continued, and they seek this bill to ensure the property owner will not be liable for any harm or injury that may befall individuals who might visit the kiosk. Senator Rhoads said he asked the legal department of the Legislative Counsel Bureau (LCB) if there is a need for the bill. Initially they told him the current law is adequate, however, upon reexamination the LCB advised the senator language in a Utah statute might be more effective for the purpose. Also, the senator noted, the Assembly has entertained a similar bill, Assembly Bill (A.B.) 313, introduced by Assembly Speaker Dini. The senator introduced Paul Sawyer, Member, Oregon and California Trails Association. Mr. Sawyer, of Elko, stated his association is in the process of marking the historic Hastings cutoff, otherwise known as the Donner Trail, through the northern part of the state. He explained the group has located "a couple of" locations on private land that are valuable historical spots, and readily available to persons traveling the interstate highway. It is the desire of the group to mark the site where wagons crossing Nevada were first abandoned in 1841, at Johnson's Big Springs; and the second site at the terminus of the Hastings Cutoff, located where the South Fork joins the Humboldt River. Mr. Sawyer testified the only hindrance to erecting the desired kiosks on the desired sites is the landowners are concerned about possible liability. Senator Porter told the witnesses that ALEC (the American Legislative Exchange Commission) has presented a bill draft for this purpose in their recent publication. The chairman called for further testimony. Curtis Risley, Attorney, Sierra Pacific Power, took the floor in support of the bill. Mr. Risley noted there are many reasons, other than historical markers, that this bill is a good idea. He stated the power company is one of the largest landowners in Nevada, and as a policy has taken a position their land shall remain unposted and open to public use for recreational purposes. He explained the law in California is very similar to this bill, and the company has relied on it for liability protection. This bill encourages landowners to open their land to recreational use, as well as encouraging ranchers and others to allow people to come on their land without fearing repercussions. Mr. Risley noted his company has compared the Senate and Assembly bills and concludes that section 4 of S.B. 327 is more comprehensive in its "laundry list" of uses. The chairman stated the language in section 4 is the only change he found in the bill. Mr. Risley observed there is a change in section 2(a), but he prefers not to go into that subject, as it is more complex than time allows for discussion. Mr. Risley suggested the list be enlarged to include bicycling, rock climbing, and even swimming and diving. However, he feels "not limited to" language will be sufficient. Senator James noted the change to section 2(a) is simply LCB's attempt to exchange "modern language" in law when possible. There resulted some discussion between the committee and the witness as to the duty of the landowner, under supreme court interpretations. Mr. Risley suggested the new language is "probably not in line with the law in the state of Nevada as it stands today, under the common law, he opined it would still apply. He offered to provide the committee with a legal citation to clarify his point. The chairman replied the Legislature must rely on the bill drafters to provide legislation that accomplishes the goals of the Legislature. Senator James questioned whether, based on Mr. Risley's point, the bill would accomplish the goal of Senator Rhoads. Mr. Risley opined the court would examine the intent of the bill (not to create a duty) and base any rulings on that intent. The chairman stated his intention to ask the bill drafters to reexamine the bill to ensure it accomplishes the sponsor's purpose. Senator Adler queried what the change really is, since it is his opinion the courts already interpret the law to cover swimming, diving, and other recreational activities. Senator Adler stated his view that the bill really does not change the law. Senator Rhoads reiterated his opening remarks that LCB originally felt the law was alright as written, but upon reconsideration decided a change might be beneficial. The chairman called for further testimony; there was none. He closed the hearing on S.B. 327. SENATE BILL 314: Abolishes criminal defense of insanity. A group of Dayton high school students entered the hearing room just as the hearing on S.B. 314 was opened by Senator James, who explained he sponsored the bill with Senators Washington and Townsend. He offered the students a cursory overview of the bill and the insanity plea, in general. The reasoning behind the bill, he explained, is a prevalent perception that the criminal justice system does not effectively hold people responsible for their conduct. Specifically, defense claims of insanity, irresistible impulses, or temporary insanity call into question whether any excuse is allowable to avoid responsibility for criminal acts, he told the group. Nevada relies on the common law McNaughton rule, which originated in 1843, and inquires whether the defendant, at the time of the crime, understood the difference between right and wrong Senator James continued. It the person does not understand this difference, the deed is considered an insane act, and the person cannot be held criminally responsible. He added, there are alternative detention means used in dealing with criminally insane individuals, so they do not return directly to society. With this bill, the McNaughton rule would be repealed, which leaves in place a requirement that the defendant understand the charges against them, and an ability to effectively assist in their own defense, Senator James stated. Also, there would remain the question of the state of mind or mens rea, of the defendant (i.e., the ability to form the intent to commit the crime). The chairman confessed his own lack of understanding of some of the intricacies of the law, and said he would depend on the various witnesses to inform him. Another consideration in this bill the senator told the audience and committee, is the cost to society when such a defense is raised. An insanity defense requires the utilization of expensive expert witnesses including physicians and psychiatrists, who must testify as to the mental health of the defendant, representing either the prosecution or the defense, the senator continued. Further, he opined, most of the heinous crimes committed in society could conceivably be considered insane acts. He asked, "Can you commit the murder of a child and be sane?" With these introductory remarks, the floor was turned over to Mr. Graham. In a brief review of the progress of the legislative session and the issues addressed during its tenure, Mr. Graham, reminded the committee of previous discussions about who should be liable for criminal acts. He reminisced over discussions of juvenile offenders and when the law should consider them responsible and answerable for their deeds. The issue of insanity was also a subject of those discussions, with consideration of the evil intent of individuals. He spoke of the actus reus (the physical act) and the mens rea (the evil intent) which must be coupled together in a criminal act. Mr. Graham told the committee of the history of the insanity plea, which originated with the case of McNaughton and Peere, in England in 1843. The insanity defense has been a reality in the United States since that time, the witness noted, and it, or some variation of it, has been used successfully in courts. He told the committee an anecdote about the "twinkie defense" wherein a defendant had eaten many twinkies and drank many cokes and then gone and killed someone. He was convicted of a lesser crime because his state of mind was affected by the consumption of so many twinkies and cokes, Mr. Graham explained. This instance is an exception, however, and the insanity plea has not really been effective, but only confusing to the issues before the court and the jury, he added. Offering another anecdotal instance where the insanity plea becomes a factor in the case only on appeal and only because one witness, a former sister-in-law of the defendant opined the defendant was "acting kind of crazy" just before the murder. The Nevada Supreme Court found the defense is entitled to a jury instruction on "any theory of defense," reversed the case and sent it back for retrial, with an insanity instruction. The upshot of the case is the man was still found guilty, but the cost to the state, due to the insanity defense option, was very significant, Mr. Graham stated. The witness assured the committee the bill includes "a safety valve" which allows consideration of diminished capacity of the defendant; but it removes the the possibility of "an incongruous result where a case could be reversed or potentially ...found not guilty by reason of insanity, sent to an institution for a period of time, pronounced cured, and released." Mr. Graham answered questions for the committee members. Senator Washington asked if Priscilla Ford's murder trial would have been different, if the present bill had been in effect at that time. Mr. Graham replied he is not overly familiar with the Ford case, but speculated there would have been less evidence offered, and that she would still have been convicted, but not executed. Senator Washington additionally queried whether the hearings would still be going on, like they are today, if the bill had been in effect. Mr. Graham replied in the affirmative. Senator Adler asked if there is a constitutional or statutory prohibition to executing an insane person. Mr. Graham again replied in the affirmative. Senator James asked if McNaughton applies in federal court and whether it would be so because it is federally applicable or only because of the jurisdiction of our particular federal court. The witness replied he feels it would apply and only because of the state law in this jurisdiction. The chairman noted he would be entering into the record a letter from one of his constituents (Exhibit C). He said, he letter tells of a murder which took place at Lake Mead and the defendant was prosecuted in federal court (because the crime occurred on federal land), and was found not guilty by reason of insanity. The defendant in the case was only detained in a mental institution for 40 days before he was released, the senator added. Additionally, the senator offered a letter from Mrs. Ciaffone regarding the murder of her husband (Exhibit D). Senator Titus asked Mr. Graham to point out the safeguard for diminished capacity. Referring to a previous discussion of voluntary intoxication, the witness reminded the senator that voluntary intoxication is not a complete defense, but it can reduce the degree of mental intent. This same principle would apply to a person with a mental problem, he explained, not a complete defense, but a partial defense. Citing section 8 on page 4 of the bill, he read, "the fact of his insanity or intoxication may be taken into consideration in determining the purpose, motive or intent." Senator Titus clarified her question, stating her concern is with the competency issue in section 4. She then asked how many states have eliminated the insanity plea. Mr. Graham replied he did not have an exact number, but indicated there is a majority of states that have modified McNaughton to one degree or another: "guilty but insane" or the "but for" test. Senator Titus stated she has heard opinions that the bill will not make much difference because it has been so long since anyone used the defense successfully. Mr. Graham agreed the defense is not very effective, but reiterated the fact that it "muddies the water" and allows in facts, that under the new provision, would not be relevant. The chairman offered that Idaho, Montana and Utah have all abolished the insanity defense, with a recent case in Montana where the supreme court denied a motion for certiorari in an appeal. The next witness was Eva Collenberger, State Representative, Families of Murder Victims, who offered remarks from a prepared statement (Exhibit E). Following Ms. Collenberger's remarks, Senator Adler asked if the present bill provides for a guilty but insane verdict, as referred to by Ms. Collenberger. Mr. Graham stated his belief such a provision is not included in the bill. The senator suggested it might be a good idea to consider the alternative, considering the testimony offered by Ms. Collenberger. Mr. Graham opined the insanity defense has not been properly visited in Nevada for some time and agreed there might be changes needed in the bill, which will doubtlessly surface during the course of testimony. Senator Adler expressed his view that the Department of Prisons currently has a better facility for mentally ill convicts than Lake's Crossing Center for the Mentally Disordered Offender (Lake's Crossing) could offer. With a guilty, but insane conviction, he surmised, a person would be sent to the prison's mental health facility for incarceration, and thereby be better off than if they were sent to Lake's Crossing. Senator Washington stated it is the committee's intent, through the instant bill, to allow for a "guilty but insane" type of plea or conviction. This would allow the person to receive mental health treatment for his condition, the senator said, but still hold him from returning to society before he has paid a debt to society. Next to testify before the committee were Charles Thompson, Assistant District Attorney, Clark County, and David Barker, Chief Deputy District Attorney, Clark County. Mr. Thompson told the committee of his previous 20-year experience as a judge. He said he had only one defendant found not guilty by reason of insanity in his years on the bench. Mr. Thompson reported that today, when a person is found not guilty by reason of insanity they are then turned over to the Department of Human Resources "to be dealt with according to law," where they are kept for a period of time, after which the individual must be either civilly committed of released. The competency of a defendant in a case, the former judge explained, can arise as an issue in at least two ways: one, is the defendant competent now (i.e., can he assist in his defense?; can he understand the charges against him?). This first instance is much easier to determine, and is raised frequently and is dealt with rather effectively. He added, the bill does not attempt to change that issue or procedure. However, the bill does remove the defense of insanity (i.e., at the time of the commission of the offense, the defendant was not competent), the speaker said, noting this issue falls under the McNaughton rule. This rule says the defendant did not know the difference between right and wrong, or did not know that what he was doing was wrong, Mr. Thompson noted. In the McNaughton instance, a psychiatrist will examine the defendant, consider what he did, and then "speculate" as to the defendant's competency at the time of the act, the speaker continued, and because psychiatrists are highly trained professionals, juries tend to believe them. A defendant is even more likely to be found incompetent if they refuse to cooperate with the psychiatrist, Mr. Thompson averred. It is even more difficult to rebut such a defense if the defendant will not cooperate with a psychiatrist for the prosecution. The witness offered the shooting of President Ronald Reagan by John Hinkley as an illustration of the difficulty in proving competence. Hinkley was found not guilty by reason of insanity, he stated. The witness moved to discuss the constitutional requirements of proving the guilt of a defendant, noting there is not a constitutional requirement to allow a claim of insanity. Mr. Thompson introduced Mr. Barker, emphasizing Mr. Barker's broad experience in dealing with insanity pleas, and the concomitant costs of such defense offerings. Mr. Barker spoke of a particular case he handled, where the defendant pled not guilty by reason of insanity, and his psychiatrist offered a diagnosis of "organic aggressive syndrome." Following some research on the part of the prosecutor, himself, it was discovered that a diagnosis of "organic aggressive syndrome" is not one recognized in the DSMIIIR (Diagnostic and Statistical Manual of Mental Disorders, third edition, revised), but was only seen reported once in a magazine article published in the mid-1980s. This research provided a basis for some succinct cross-examination, Mr. Barker told, which eventually convinced the jury against the defense. This entire procedure was very expensive, costing $10,000 for the prosecution's psychiatric expert, the speaker said. The chairman interrupted in order to clearly outline the different burdens of proof involved in a criminal prosecution using an insanity defense. He noted the state must prove "beyond a reasonable doubt" the defendant did the act, the defense must prove "with a preponderance of the evidence" the defendant was incompetent at the time, or did not understand what he was doing was wrong. The state, upon the raising of the insanity defense, must rebut such an assertion or face the possibility the jury will believe the defense and find in their favor, Mr. Barker added. Mr. Barker observed using the DSMIIIR as a means to determine and diagnose mental illness could easily result in "every person who walks this earth [being found] mentally disabled in some respect." Everyone has their own "quirks or problems" he pointed out, but they are not all insane as a result of them. Through the use of the insanity defense, Mr. Barker continued, some of the disorders are turned into a "ticket to walk away from very serious criminal charges." The witness told the committee currently there are a number of cases set for trial where the insanity defense will likely surface. For example, a diagnosis of homophobic is expected to be used as a defense in a stabbing trial set to go in the very near future Mr. Barker testified, and the prosecution cannot find a psychiatrist in the community who is willing to provide information that will rebut this defense. Many times, it appears the defense is using the insanity defense as a "last resort" in cases where the crimes are particularly brutal, the facts of proof are strong and there is no other feasible defense to be offered, he added. Senator Adler clarified the bill would remove the insanity defense, but retain the protection for idiots (mental retardation) and for an unconscious act (someone completely delusional). This results in there still remaining a defense citing "state of mind" he reminded the committee. Mr. Thompson reiterated it would still be required that the state prove the intent to commit the crime and the actual commission of the crime. For the committee's information, Mr. Barker reviewed the status of mental state defenses, noting three western states have repealed the insanity defense and 20 states rely on the irresistible impulse theory. He stated there is authority under the case of Powell v. Texas, which allows states to decide whether this defense is allowable or not, assuring the committee there is no constitutional right to an insanity defense. Senator Porter inquired whether the case in Las Vegas where an individual drove a truck through a office building would be a possible insanity plea. Mr. Barker replied he had prosecuted the case the senator was talking about. He stated it is a good example of how a chilling effect is felt when there is a potential finding of not guilty by reason of insanity. Under circumstances like these, Mr. Barker told, plea negotiations are impacted because the potential defense becomes a factor in determining what kind of charge the defendant will be willing to plead to. Senator Titus recalled Mr. Thompson's testimony wherein he stated in his 20 years of experience he only remembers one case of insanity defense, and asked Mr. Barker how many cases were won with the insanity defense in his 9 years of experience. Mr. Barker replied there was one case in 1988 he could recall. He admitted the occurrence is infrequent, but Mr. Thompson added there is a lot of time and money spent when it does arise. The senator revisited the issue of burden of proof. She asked for assurance it is the defendant's duty to prove their insanity. Mr. Barker affirmed her understanding. She asked if the proof burden has always been this way. Mr. Barker responded it has been practiced this way as long as his memory, but added there had been some discussion as to whether it constitutes a "burden shifting" from prosecution to defense. Senator Porter asked if property crimes are answered with the insanity defense. Mr. Barker responded in the affirmative, as far as the issue of intent goes. He offered an example of burglary as a crime where the intent is hard to prove. If the prosecution cannot prove the individual's intent to commit larceny or assault at the time he entered the building, then burglary cannot be proven. Senator Porter inquired as to the success of the defense in such cases and the witness told it happens frequently in cases of burglary. Senator Lee brought up the issue of individuals who are under a doctor's care and are supposed to take psychotropic medication to stabilize their mental state. He asked, when such an individual fails or refuses to take the prescribed medication, is his circumstance similar to voluntary intoxication, where a drunk driver causes "substantial bodily harm to another individual." He also asked for clarification as to whether this failure to take medication is a defense and the voluntary intoxication is not a defense. Mr. Thompson replied this is the case, because the courts have "adopted the common law rule of not guilty by reason of insanity." Then Senator Lee asked if the passage of the instant bill will resolve the difference. Mr. Thompson stated the prosecution would still have to prove the intent to commit the offense. Senator Lee pointed out the individual has voluntarily refused the medication. The witness replied that by doing so, the individual has placed himself in a position to claim the insanity defense. The senator opined this situation "is terrible." The chairman interjected this bill will remove that defense. The senator was reassured and relinquished the floor. Here Senator Titus opined perhaps the defense would not be eliminated by the proposed bill. She wondered what differentiates an insane person from one who is mentally incompetent or an idiot. Mr. Barker stated the bill would remove the recognition of the "legal concept of insanity," but would retain the ability to argue mental disability or mental impairment. Senator Titus stated that is her point, observing her concern is the same as Senator Lee's. She asked, "If you don't take your medicine are you insane, or are you just whatever the term is...?" Again, the chairman interjected, asking the witnesses for a concise explanation of what the McNaughton rule means, with a specific outline of the requirements to show the inability to know right from wrong. Mr. Barker offered to read the committee a jury instruction as an explanation of the rule. He read: ...to establish a defense on the ground of insanity, the defendant must prove at the time of the committing of the act he was laboring under such a defect of reason from disease of the mind, as to not know the nature and quality of the act he was doing, or that he did not know what he was doing was wrong. He added the "bottom line" of McNaughton is to understand the nature and quality of the act and that the act is wrong. Senator James observed a person can have the requisite state of mind and still intend to do the act, which is the difference between insanity and mental impairment. Burglary is a good example, once again, the senator noted, stating, "if your mind is so defective or if you are in such a delusional state that you can't form the requisite intent for the burglary part, then you could get off, even though there is not a McNaughton rule." The witnesses agreed. As another example of what might happen if the McNaughton rule is eliminated, Mr. Barker offered first degree murder, which requires specific intent, premeditation, and deliberation. If there is information before the jury that attacks these specific elements, based on a mental state which renders the defendant incapable of premeditation or deliberation of the killing, the jury would have to "look to second degree murder" or they would have to look to the facts of the case to determine what the defendant may have done to lead a reasonable person to believe they intended the consequences of their actions, he explained. The Knapp case is an example (see Exhibits D and E) of deliberate acts which were observed by witnesses. Senator Titus interrupted to ask what if the jury found Mr. Knapp had not taken his medication that day. Mr. Barker stated, "he hadn't" and a member of the jury would have to examine whether his lack of medication would affect whether or not he knew what he was doing. The senator wondered if the law is passed and the jury finds he did not know what he was doing because he did not take his medicine, what would this do. Mr. Barker speculated the jury could find him guilty of second degree murder or they could find him not guilty. Senator Titus asked if there is a facility in the state where such an individual could be sent rather than prison, observing if the insanity defense is removed, so is the option to send a defendant to treatment. Mr. Thompson stated it is his belief that individuals in prison are routinely screened for mental health problems. Senator James took one final attempt at clearly explaining the issue. He stated: Second degree murder is a general intent crime ... the general intent to kill a human being..., but it lacks the deliberation. Now, if your defense is `I thought I was doing the right thing because voices were telling me, devil voices were telling me to kill the person,' that's a McNaughton defense. `I thought that was the right thing to do, I truly believed it because I was insane, voices were telling me to kill this person.' That would be a McNaughton defense. That would be eliminated by taking McNaughton away. Now, if you were in such a mental state that you thought the person was a peach pie, you didn't even think they were a person, you were totally delusional. You could not form the general intent to kill a human being, because in your mind, if you proved by a preponderance [of the evidence] to a jury that the person was an inanimate object or something else, then you could be acquitted by reason of the lack of the requisite element, that is, the intent to kill a human being, because you thought it was a peach pie. And that could be as a result of not taking your medicine, that you were in that delusional state, or you were so mentally retarded that you did not have any idea that it was a human being. The notion of not knowing right from wrong, voices told you that you should do this, that it was right, or that someone told you that you should take the law into your own hands....or the guy in the organic aggressive syndrome... that's a McNaughton defense that would be eliminated. But the thing that just totally bars your mind from understanding the nature of your act itself, or the nature of the victim, that would remain because it is an intent issue. Senator Lee queried if a person who has been diagnosed as "a little insane," but is okay if taking medication, is responsible for his failure to take his medication. How can this happen, he asked. Mr. Barker stated a close simile is the voluntary intoxication which would rest on a factual argument. The decision would lie with the jury who would have to listen to arguments presented by both sides as to the facts of the case, he stated. The chairman concurred, opining the bill would eliminate the creative defenses such as the organic aggressive syndrome, without eliminating any necessary elements of the crime. He also noted he had requested a fiscal note be prepared prior to the introduction of the bill. He said he has not yet received one, but noted the bill itself indicates an impact on local government. He queried the witnesses as to their opinion on a fiscal impact. Mr. Barker opined there would not be any increase in cost, as there is already a requirement to argue state of mind. Senator Washington asked if "it's self-induced by drugs, would that fall under the category of voluntary intoxication?" Mr. Thompson replied it would. There were no further questions for the witnesses and the chairman excused them. The next group of witnesses included James J. Jackson, State Public Defender, John C. Morrow, Chief Administrative Deputy, Washoe County Public Defender, and Steven G. McGuire, Chief Deputy, State Public Defender. Mr. Jackson was the initial speaker, and he distributed two cases to the committee for their perusal. Exhibit F is the case of Ford v. Wainwright, a finding by the Nevada State Supreme Court that it is unlawful to execute insane people. Exhibit G is the case of Drope v. Missouri, which upholds the principle that people who are mentally incompetent cannot be tried. The chairman observed these two findings would not be affected by the instant bill. Mr. Jackson concurred, but feels they apply to his preamble discussion. Mr. Jackson observed the discussion so far indicates how confusing the issue before the committee really is. Insanity and competency are concepts that are confusing to those who do not deal with them regularly, he noted, and even to those individuals who do. He stated his hope that adding the defense viewpoint would help to balance the understanding of the insanity defense. He underscored the importance of the infrequency of the successful use of the insanity plea. He opined the system works because "it goes to the jury of peers to decide whether or not ... insanity exists." Secondly, Mr. Jackson emphasized the importance of not confusing competency and insanity, stating they are two very distinct legal standards. Mr. Morrow took the floor as a public defender for Washoe County. He offered the committee an historical overview of the insanity defense, noting that executive clemency was the only means to make allowances for the criminal deeds of insane persons at that time. With the advance of science and medicine, legal concepts have also changed, with some jurisdictions allowing liberal construction of insanity, and others holding a very tough standard, Mr. Morrow explained, with the McNaughton rule being the most restrictive standard. The insanity defense is not a "trap door" through which the criminal can escape responsibility for his deeds, Mr. Morrow said. The breadth of use of the insanity defense is quite narrow, he opined, adding this bill is rather like "throwing out the baby with the bath water." There are legitimately insane people in our society who get into trouble, Mr. Morrow testified. The chairman asked for an example. Mr. Morrow spoke of people who are so mentally deranged that they simply wander. Some of the transients are extremely mentally ill, he stated. He told the committee of his dealing with these individuals, generally in the context of a civil commitment, or in a criminal context. He stated an example of this is when one of these individuals "wanders into a garage looking for a place to sleep." These people, in their wanderings do not realize it is wrong to enter someone else's property to find shelter, he opined. Further, he offered, it is these types of individuals who will be left with only the criminal system to deal with their problems. Senator James questioned the witness further, declaring his belief that such an individual could not be criminally responsible if they do not have the intent to commit a crime. Mr. Morrow replied they are a victim of mental illness, and the chairman countered the bill would not affect them anyway, because they would not have any intent, whether insane or not, since they were only seeking a place to sleep. Senator James asked Mr. Morrow to expand on his explanation of someone who is so insane they should not be held criminally responsible. He asked, "what about the person who says that voices are telling them to kill somebody?" Mr. Morrow agreed a person who acts on such a delusion is mentally ill, insane, and should probably be acquitted by reason of insanity. He emphasized this is the whole concept behind the insanity defense. Mr. Morrow opined that doing away with the insanity defense would have some constitutional repercussions. He stated he is not certain as to the issues involved in the Montana case but he said he feels it is clear that science and medicine have evolved to a point where mental illness is a viable medical condition. Denying a person the opportunity to offer a defense which calls attention to medical and scientific facts now accepted denies due process rights, he averred. The chairman pointed out it is not the opinion of the U.S. supreme court, telling the witness the appellate in the case raised the question of a constitutional basis for an insanity defense and the supreme court refused to review it. Another case, cited by Mr. Barker, holds that such defenses are a matter of states' rights, not a federal constitutional right, the chairman continued. Mr. Morrow held the finding would turn on the facts of individual cases. Senator Porter asked the witness to address an individual's constitutional right to be insane. Mr. Morrow opined there is no constitutional right to be insane, but it is a fact of the "persona of the individual, rather than anything to do with law or constitutional issues." Secondly, Senator Porter asked Mr. Morrow to address whether the level of mental illness of the individual and the potential danger imposed by that individual should be considered in criminal cases. Mr. Morrow spoke of the Steele case as an example of the current statutory scheme working as it should. Mr. Steele was accused of killing his parents while insane and was committed to Lake's Crossing, where he eventually died, the witness told, and this is an example of how people who are seriously mentally ill and commit crimes may never return to society. He opined it is the equivalent to a life sentence without the possibility of parole. Mr. Morrow admitted there are examples of cases where individuals are found insane and within 3 or 4 months they are "cured" and released. Lorena Bobbitt is an example of such an instance. Senator Porter wondered if the case of the Menendez brothers is an insanity plea. Mr. Morrow stated it is his belief the Menendez brothers were supposed to have been sexually abused by their parents and were justified in killing them. They were not found "not guilty," but must go back to face another trial, he reminded the committee. Senator Porter expressed his feeling that it is easy to blame society or the environment for the actions of an individual. Is this an example of the insanity defense, he queried. Mr. Morrow stated such a defense would not hold up in Nevada, with differences in cultures making a difference in jury findings. Senator Washington attempted to illustrate his understanding of the insanity plea by offering the example of a neighbor driven insane by the barking of a neighbor's dog, who then kills the dog. He questioned whether such a scenario would actually result in a not guilty by reason of insanity finding. Senator James stated his concern lies in the defense bar's offering that the defense rarely works. He opined it is not the only issue to be considered, and questioned why the law should legally recognize a defense that absolves a person of responsibility for criminal liability. Further he opined the argument offered, that the insanity defense should be retained because it is hardly ever successful, is a weak one. Mr. Morrow noted his main concern is that people who have extremely debilitating mental illnesses are "not treated as animals, that they are allowed to be treated by a humane system that recognizes the difficulties that they have." Senator James wondered how a person who commits crimes such as the murder of children could ever really be considered normal or sane. Mr. Morrow objected to the use of highly emotional terms such as child murder and killing of one's children. The senator responded such terms are those used by his constituents, and therefore, he must also look at it with them in mind. Mr. Morrow reiterated his concern about persons who are so mentally ill as to consider a human being to be something inanimate or nonhuman. He said he feels such individuals do fit the definition of someone who is insane, and he asked if we as a society want to hold that person responsible in a criminal sense, or do we want them to be treated as humanely as possible while being kept in an institutionalized setting. Mr. Jackson took the floor to support Mr. Morrow's point. He stated it is not the purpose or intent of the defense bar to come before the committee and suggest the victims of these criminal acts are not worthy of society's empathy. He offered his personal experiences as a defense attorney sitting "across the table and listen[ing] to the father of a slain trooper talk about his son" as a moving and life changing experience. He opined sitting in these hearings and trials exacts as much a toll on defense counsel as it does everyone else in the situation, perhaps even more so because they are charged with providing and effective and credible defense for that individual. Mr. Jackson pointed out there is a check and balance in the system as it now exists. The check, he said is that the defense can raise the defense of insanity, and the balance is the district attorney attempts to rebut that evidence, and finally the jury is left to decide based upon the evidence. He refuted statements that there is an abuse of the insanity defense, stating his belief it is not abused, while admitting some "creativity" exists with respect to the kind of insanity or the cause. The chairman asked what effect the removal of the McNaughton rule might have, wondering if it is bad to send a message to criminals that if "you're wacky enough you might get off?" Mr. Jackson replied that sending a message "assumes that they are listening" and he opined the people he has represented are not at all impressed with messages sent by the Legislature. This especially applies to those individuals who are mentally ill or insane and living in society he said. He further opined the McNaughton rule is one that "shows the compassion and humanity that is incumbent in our system" because it requires "proving both the act and the mental intent and ability to form that intent." If these cannot be proved, they are not held criminally responsible. Mr. Jackson reminded the committee and listeners that even when an individual is found to be not guilty by reason of insanity, they are not simply released back into society. Under Nevada law, a person found not guilty by reason of insanity must still be ordered into a facility which offers treatment for the criminally insane. Before that person can be released from such a facility, he continued, they must come back before the sentencing judge and be granted leave from the facility. The law allows an insane person to be detained in a facility for a period of time equal to the sentence he would have received, Mr. Jackson told, had he been found guilty. Senator Washington asked Mr. Jackson about the Michigan law which allows a finding of guilty and mentally ill. He asked if such a proposal is amended to this bill, would such a person go to prison here. Mr. Jackson admitted to being unfamiliar with the Michigan statute, but opined under their scheme a person would be sentenced to a facility for the mentally ill or insane. They are kept there rather than being released into the general prison population, he speculated. Mr. Jackson offered his opinion that if the McNaughton rule is repealed the only alternative is "an all out attack on intent" which would not diminish a defense attorney's requirement to "bring forth evidence of mental state, of insanity or mental illness or whatnot." The chairman observed this would only pertain to the intent question, it would not go to the "right from wrong" issue. He further observed intent and knowing right from wrong are completely different concepts. Mr. Jackson voiced his agreement, but he wondered where the line is drawn between them. Next the chairman opined there would be a higher standard of proof for the defense to show a lack of intent. Mr. Jackson disagreed, stating the reasonable doubt standard would apply in that case, but under the current statutes the defense bears the burden of proof of insanity with a preponderance of the evidence. There followed a discussion of the particulars of the David Sonner murder case, where an insanity defense was unsuccessfully raised, with much expense. Mr. Jackson, who was personally involved in the defense of the Sonner case, outlined for the committee the procedures followed in determining whether or not to pursue an insanity defense. Mr. McGuire spoke next, addressing the difficulties average persons have with the insanity defense. He noted the adversarial process of criminal justice is a major factor. The defense is a fundamental part of any criminal case, not matter what that defense theory may be, he told. He opined if the insanity defense is done away with, other defenses will rush in to fill the void. He speculated the other alternative defenses will not be any more popular or less expensive than is the insanity defense. Senator Lee asked the chairman to allow him to ask the witness "what happens to people being responsible?" This responsibility is different from assuring a fair trial he stated. Mr. McGuire replied the defendant is held responsible when the verdict is brought in. Mr. Jackson pointed out that being able to present a defense goes to the heart of the United States' constitutional scheme. Senator Washington voiced his concurrence with Senator Lee's view that an individual is held responsible for their actions. Mr. McGuire added an additional point, noting that a finding of guilty has a moral and societal implication that goes with it, and if an individual is found guilty, but insane, they are marked by that label of guilt. He offered that many times individuals, who might very well be family members, siblings, or spouses of any person in the room, suffer painful experiences or illness that robs them of their former strength or stability. If one of these individuals committed an illegal act as a result of their illness, it would be difficult for those close to them to understand a finding of guilt, he said. Senator Porter summarized the day's discussion as that of a lack of trust in the system and a shifting of responsibility on to others or society. He read a portion of the case provided by Mr. Jackson (Exhibit G) which talks of the judge's opinion that as many as 75 percent of insanity defense claims are offered for reasons of delay. He asked the witnesses how often the insanity defense is used as a delay in their experience. Mr. Jackson responded it is not his office's practice to use it as such a tactic. One of the doctors in the Sonner trial was asked how often people are returned from a psychiatric review as incompetent, Mr. Jackson said, with the doctor's response being 40 percent. Mr. Morrow offered there are sanctions available which can be handed down to address unethical actions taken by attorneys, and they should be used, "as opposed to removing a defense." He stated the attorneys he knows do a "lot of soul searching before they call for a psychiatric evaluation." He emphasized it is important to use professional evaluations when determining if an insanity defense is necessary or viable. The chairman called for further questions and thanked the witnesses for their presentations. He voiced a view that there must be a way to separate the legitimate cases of mental incompetence from those who offer excuses to avoid responsibility. He stated it is his intention to support legislation that is effective and beneficial, not simply because it is supported by the prosecution bar. The senator also opined it might be useful to consider an allowance for guilty but insane, as in Michigan, and asked for further information in that regard. Mr. Jackson stated he would be very willing to work with representatives from the prosecution bar and others in order to gather information and produce some feasible suggestions to address the issue. Senator Adler also wished to ask the witnesses to provide information about the guilty, but insane finding. He voiced his concern that the facilities currently available to the criminally insane in Nevada are not very good, while those mental health facilities in the state prisons are much more adequate. The senator told of his personal visits to Lake's Crossing which is the facility for criminally insane. He opined the residents there might be better off in the prison mental health facility. The chairman called for further testimony. There was none and the hearing was adjourned at 10:50 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary April 4, 1995 Page