Assembly Bill No. 16–Committee on Judiciary

 

CHAPTER..........

 

AN ACT relating to crimes; providing for genetic marker analysis of certain evidence relating to the conviction of certain offenders who have been sentenced to death; providing for a stay of execution pending the results of the analysis; providing that a petitioner may file a motion for a new trial if the analysis is favorable to the petitioner; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

   

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

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

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

sentence of death who meets the requirements of this section may

file a postconviction petition requesting a genetic marker analysis

of evidence within the possession or custody of the State which

may contain genetic marker information relating to the

investigation or prosecution that resulted in the judgment of

conviction and sentence of death. The petition must include,

without limitation, the date scheduled for the execution, if it has

been scheduled.

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

court for the county in which the petitioner was convicted on a

form prescribed by the Department of Corrections. A copy of the

petition must be served by registered mail upon:

    (a) The Attorney General; and

    (b) The district attorney in the county in which the petitioner

was convicted.

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

determine which person or agency has possession or custody of

the evidence and shall immediately issue an order requiring,

during the pendency of the proceeding, each person or agency in

possession or custody of the evidence to:

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

the person or agency that may be subjected to genetic marker

analysis pursuant to this section;

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

the possession or custody of the person or agency that may be

subjected to genetic marker analysis pursuant to this section; and

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

petitioner, the prosecuting attorney and the court.

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

prepared pursuant to subsection 3, the prosecuting attorney may

file a written response to the petition with the court.

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

to this section.

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

finds that:

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

have been prosecuted or convicted if exculpatory results had been

obtained through a genetic marker analysis of the evidence

identified in the petition;

    (b) The evidence to be analyzed exists; and

    (c) The evidence was not previously subjected to:

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

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

the method of additional analysis may resolve an issue not

resolved by a previous analysis.

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

subsection 6, the court shall:

    (a) Order the analysis to be conducted promptly under

reasonable conditions designed to protect the interest of the State

in the integrity of the evidence and the analysis process.

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

analysis. The forensic laboratory selected by the court must:

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

subdivisions, when possible; and

        (2) Satisfy the standards for quality assurance that are

established for forensic laboratories by the Federal Bureau of

Investigation.

    (c) Order the forensic laboratory selected pursuant to

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

The analysis to be performed and evidence to be analyzed must:

        (1) Be specified in the order; and

        (2) Include such analysis, testing and comparison of

genetic marker information contained in the evidence and the

genetic marker information of the petitioner as the court

determines appropriate under the circumstances.

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

forensic laboratory in connection with the analysis and any data

and notes upon which the report is based.

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

marker analysis performed pursuant to this section for purposes of

a subsequent proceeding or analysis, if any.

    8.  If the results of a genetic marker analysis performed

pursuant to this section are favorable to the petitioner:

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

the ground of newly discovered evidence pursuant to NRS

176.515; and

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

subsection 3 of NRS 176.515 is not applicable.

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

section if:

    (a) The requirements for ordering a genetic marker analysis

pursuant to this section are not satisfied; or

    (b) The results of a genetic marker analysis performed

pursuant to this section are not favorable to the petitioner.

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

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

pursuant to this section shall be deemed to consent to the:

    (a) Submission of a biological specimen by him to determine

his genetic marker information; and

    (b) Release and use of genetic marker information concerning

the petitioner.

    11.  The expense of an analysis ordered pursuant to this

section is a charge against the Department of Corrections and

must be paid upon approval by the Board of State Prison

Commissioners as other claims against the State are paid.

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

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

of action or proceeding available to a person convicted of a crime

and under sentence of death.

    Sec. 3. 1.  After a judge grants a petition requesting a

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

determines that the genetic marker analysis cannot be completed

before the date of the execution of the petitioner, the judge shall

stay the execution of the judgment of death pending the results of

the analysis.

    2.  If the results of an analysis ordered and conducted

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

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

of the Department of Corrections shall, in due course, execute the

judgment of death.

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

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

staying the execution of the judgment and a certified copy of the

report of genetic marker analysis that indicates results which are

not favorable to the petitioner to be immediately forwarded by the

clerk of the court to the district attorney. Upon receipt, the district

attorney shall pursue the issuance of a new warrant of execution

of the judgment of death in the manner provided in NRS 176.495.

 

    Sec. 4.  NRS 176.515 is hereby amended to read as follows:

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

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

evidence.

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

the judgment if entered, take additional testimony and direct the

entry of a new judgment.

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

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

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

finding of guilt.

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

made within 7 days after the verdict or finding of guilt or within

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

    Sec. 5.  The Department of Corrections, in consultation with

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

    1.  Prescribe the form for a petition requesting the genetic

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

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

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

who is under a sentence of death.

    Sec. 6.  This act becomes effective upon passage and approval.

 

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