MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 11, 2003
The Committee on Judiciarywas called to order at 8:08 a.m., on Tuesday, February 11, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4101 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
GUEST LEGISLATORS PRESENT:
Assemblyman Mark Manendo, District No. 18, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department, Office of Intergovernmental Service, Las Vegas, Nevada
Michelle L. Van Geel, Senior Research Analyst, Legislative Counsel Bureau, Carson City, Nevada
Lucille Lusk, Co-Chairman, Nevada Concerned Citizens, Las Vegas, Nevada
Kami Dempsey, Manager, Government Relations, City of Las Vegas, Las Vegas, Nevada
Karen Coyne, City of Las Vegas, Las Vegas, Nevada
Michael Pagni, Attorney, National Council to Prevent Delinquency, Reno, Nevada
Susan Fisher, representing the City of Reno, Nevada
Mary Lau, Executive Director of the Retail Association of Nevada, Carson City, Nevada
Rose McKinney-James, Legislative Representative, Clark County School District, Carson City, Nevada
Dan Musgrove, Director, Office of County Manager, Clark County, Las Vegas, Nevada
Howard Brooks, Nevada Attorneys for Criminal Justice, Las Vegas, Nevada
Ben Graham, Nevada District Attorneys’ Association, Las Vegas, Nevada
Pamela Rowse, R.N., Kierra Harrison Foundation for Child Safety, Las Vegas, Nevada
Douglas Herndon, Chief, Special Victims Unit, Clark County District Attorney’s Office, Las Vegas, Nevada
H. Shawn Wijesinghe, M.D., St. Rose Dominican Hospital, Henderson, Nevada
Lisa A. Rasmussen, Attorney at Law, Dixon Truman Corporation, Las Vegas, Nevada
Edward E. Cotton, Administrator, Division of Child and Family Services, Nevada Department of Human Resources, Carson City
Chairman Anderson made opening remarks and said the Committee should have received an invitation from Lorne Malkiewich, Director of the Legislative Counsel Bureau, to visit a prison in Ensenada, Mexico, Saturday, March 1, 2003. He said it was not required or expected. Chairman Anderson indicated that Assemblywoman Angle had arranged the field trip for the members of the Committee in preparation for potential piece of legislation the Committee might be hearing in the future.
Assemblywoman Angle thanked Chairman Anderson for acknowledging her invitation, and said the field trip was open to the Governor and all legislators. She said the program in the Ensenada prison had a 10 percent recidivism rate over the last seven years, and wanted to give legislators the opportunity to see the program firsthand. She said there would not be a report on the trip because the trip was not financed by a lobbying effort.
Chairman Anderson indicated that several Committee members had inquired about the upcoming work session. He said that during the next few weeks they would hear several pieces of legislation, and if there was a piece of legislation that needed amendment to please give the information to him or to Ms. Combs by 3:00 p.m., February 20, 2003. Additionally, if there were any pieces of legislation that needed to be introduced from the Committee, that information had to be turned in by February 19, 2003. The cutoff date for Committee introduction of bill requests was February 24, 2003, and Chairman Anderson said he needed time to put the package together. He related that he currently had four requests to introduce to the Committee; additionally, Speaker Perkins had assigned six to the Committee. Therefore, he advised the Committee members to try to get potential bill draft requests to him so he could prioritize and include the requests in the package.
Chairman Anderson opened the hearing on A.B. 10, and stated that A.B. 10 was the product an interim study committee chaired by Assemblyman Mark Manendo, Clark County Assembly District No. 18.
Assembly Bill 10: Repeals various crimes. (BDR 15-190)
Assemblyman Manendo introduced A.B. 10 and said that A.B. 10 and A.B. 11 resulted from the Legislative Commission’s Subcommittee to Study “Categories of Misdemeanors,” A.C.R. 2 of the 17th Special Session, Bulletin 03-4 (Exhibit C). He said the study was ordered to determine having categories of misdemeanors and penalties commensurate with Nevada’s categories of felonies, and to provide more consistency in criminal statutory provisions. The subcommittee determined that Nevada’s current two categories of misdemeanors, gross misdemeanors and misdemeanors were sufficient.
Mr. Manendo said the subcommittee also reviewed other issues related to misdemeanors. One was antiquated law, which prompted the drafting of A.B. 10. The bill would repeal certain laws that the subcommittee determined to be antiquated. Specifically, it would repeal references to telephone party lines, a law that was fashioned in 1973. According to staff at Nevada Bell, all party lines in the state had been phased out.
Additionally, Mr. Manendo said A.B. 10 would repeal the prohibition against a person pasturing livestock in a cemetery. This statute was added to Nevada law in 1911, which stated that any person who allowed any livestock to pasture within an enclosed private or public cemetery was guilty of a misdemeanor. The subcommittee was informed that current laws pertaining to legal fences and trespassing adequately addressed the problem.
Finally, Mr. Manendo said A.B. 10 would repeal the prohibition against a person shearing sheep within a city or town; that law dated back to at least 1911. The law declared it illegal for any sheep to be penned, housed, or fed for the purpose of being sheared within the ordinary limits of a city or town in the state during any period of the year. An exception existed if the location was not within one-half mile of a residence. Mr. Manendo commented that a number of county fairs and Future Farmers of America livestock shows were in conflict with current law because they were conducted within city limits, and sheep were commonly sheared during such events.
Mr. Manendo said that the media had brought his attention to some of the antiquated laws. He indicated that Ms. Van Geel had guided the subcommittee during the interim study, and her review of the old laws resulted in the formulation of A.B. 10.
Assemblyman Mortenson asked if Mr. Manendo knew why the sheep law was instituted. Mr. Manendo responded that he did not.
Chairman Anderson asked Assemblyman Carpenter if he was knowledgeable in this area. Mr. Carpenter opined as to why the pasturing law was originally established. He said that some sheepherder probably saw some nice green grass and let his sheep into the cemetery and the residents asked the Legislature to pass the law. He did not offer an opinion as to why shearing sheep within city or town limits was illegal. He said it might be a good idea to repeal those particular sections of law.
Chairman Anderson opined that Mr. Mortenson’s question was probably more relative to the shearing of sheep rather than the trespassing statutes that were currently in place. He offered that the sheep law might have been instituted because of health hazards associated with shearing sheep at that time.
Mr. Manendo mentioned that one of the reasons the study came about was that it was requested from people in Mr. Carpenter’s hometown. He thanked Chairman Anderson, Mr. Carpenter, Senator Care, Senator McGinness, and Senator Washington for serving on the subcommittee.
Chairman Anderson asked Mr. Mortenson if further research was needed on that particular part of the statute. Mr. Mortenson responded that his wife had sheared sheep in their backyard, and wanted to know if she were a criminal or not. Chairman Anderson remarked that if she had not been arrested yet, then A.B. 10 would let her off the hook.
Chairman Anderson closed the hearing on Assembly Bill 10, and opened the hearing on Assembly Bill 11.
Assembly Bill 11: Provides increased penalty for certain repeat offenses involving vandalism. (BDR 15-191)
Assemblyman Mark Manendo introduced Assembly Bill 11 and said that under current law, repeat vandalism offenders were subject to the same penalties as first-time offenders. The penalties were as follows:
Continuing, Mr. Manendo said this legislation would make all second and subsequent offenses felonies. Additionally, A.B. 11 would increase the penalty for a first time offender to a Category C felony if the damage resulted in the impairment of public communication, transportation or police and fire protection.
Mr. Manendo welcomed Lieutenant Stan Olsen with the Las Vegas Metropolitan Police Department (Metro) and said that Lt. Olsen brought the language in A.B. 11 to the subcommittee and informed the subcommittee that millions of dollars of private property was damaged as the result of graffiti in Clark County each year.
Lt. Stan Olsen, also a member of the Nevada Sheriffs and Chiefs Association, spoke in support A.B. 11 and its changes to the graffiti law. He informed the Committee that there was a significant increase in damage to private property because of graffiti in southern Nevada and indicated that in 2003, costs were expected to reach $6 million in Clark County in the Metro jurisdiction alone, and that excluded Henderson, North Las Vegas, and Boulder City.
Lt. Olsen described the two types of people that painted graffiti, or “tagged.” First, there were the gang members that did not usually tag as much as the second type, the taggers. Taggers were the prolific graffiti artists, and these individuals ranged from juvenile age up to mid- to late thirties in age. Taggers considered it a challenge among themselves to put the graffiti in specific areas that made it more difficult to get to. They had a point system; the more difficult the placement, the more points they got. Lt. Olsen said the taggers also had a Web site that explained how to tag. Names of people who called the police about taggers were placed on this website so taggers knew who to watch out for or to retaliate against.
Lt. Olsen related an incident in southern Nevada where one individual alone was responsible for $2 million in damages in a one-year period. The two officers assigned to graffiti work performed the investigation and identified the person responsible for the $2 million accumulative damage. When they charged the offender, the case was not decided as a felony case because there were multiple misdemeanors as opposed to one felony, even though the man did $2 million in damage. Lt. Olsen said this was why he would like to see the law correct this type of inequity. He also noted that there would soon be two more officers assigned to the graffiti unit of Metro. He concluded his statement in support for A.B. 11 by stating that tagging was very costly to business, private citizens, and the government. He also said that his organization was amenable to the proposed amendment by the City of Reno.
Playing devil’s advocate, Assemblywoman Buckley posed a scenario in which a juvenile broke a $70 window and then broke a second $70 window. She asked if the second offense would be a Category E felony. Lt. Olsen asked for a moment to review the bill.
Chairman Anderson asked Ms. Lang to advise the Committee. Ms. Lang said that the way the law was currently written, it did look like a second offense, where the value was less than $5,000, would be a Category E felony.
Ms. Buckley noted that Section 1 of A.B. 11 was in NRS 206.330 and the law pertaining to children was in NRS 62.226. She wanted a discernable distinction made between a 12-year-old and an 18-year-old, and pointed out the need to be careful when million-dollar damages occurred. She said it would be nice to have some enhanced penalties to deter that type of behavior, and she wanted to make sure that if the offense was too small, Les Miserables was not replicated in statute.
Lt. Olsen said that in drafting the language, the sole intent was for dealing with the graffiti offenders, not with kids who broke windows.
Ms. Lang mentioned that although the law made such action a Category E felony, if the offender was a child, he would have come under NRS 62 so he would not have actually been found guilty of a felony, but rather would have come under the delinquency statutes of NRS 62 and gone before the juvenile court.
Chairman Anderson asked if there were potential for raising the spectrum a little higher with this legislation. Ms. Lang agreed that this would create a higher penalty for a second or subsequent offense; it was currently a gross misdemeanor. She stressed that children were treated differently when they committed crimes in Nevada, so they would not have actually been found guilty of a felony per se, but would have fallen under the juvenile statutes.
Assemblyman Brown questioned the value of the loss, Section 1, line 14, of A.B. 11. He asked if there was a loss when there was graffiti. He said that in subsequent sections the abatement of graffiti was mentioned. He asked if it would have been prudent to include the value of the loss for vandalism versus cost of abatement for graffiti in the language, as such clarification might have aided in defining the damage.
Lt. Olsen said that in Reno the newest trend was etching glass with acid. The glass was destroyed and needed replacing. As far as graffiti painting went, sometimes walls needed sandblasting, depending on the surface.
Ms. Lang interjected that the manner in which the other statutes were drafted on graffiti made it a public offense proportionate to the value of the property damaged, and the statute that provided a penalty for that was written in terms of the value of the loss. She said that that was where the language came from, but that was not to say it could not have been clarified.
Mr. Brown asked if the $6 million was strictly for graffiti, or did it also include vandalism, graffiti defacement, cost of repairs or replacement, and abatement.
Lt. Olsen responded that according to the graffiti unit, the $6 million came from graffiti on property, and included all the costs of eradicating that graffiti.
Chairman Anderson asked if the total cost included the insurance premiums paid by the property owners. Lt. Olsen said the City of Las Vegas and Clark County’s graffiti eradication units provided the cost estimates. Chairman Anderson asked if the property owners took care of the abatement themselves; was the $6 million figure the cost to the city alone or did it include the individual property owners’ cost? Lt. Olsen said it was both; it included the property owners’ cost of repairs also. He added that the City got free tan-colored paint from the recycle center and used that to paint over graffiti.
Assemblyman Mabey commented about the language on page 2, line 1, of the bill, “where the value of the loss is $250 or more but less than $5,000, is guilty of a gross misdemeanor.” He said $250 might be a little too low; with current inflation, $250 was not very much.
Assemblywoman Angle asked about the Category C and E felony penalties, if those would be taken care of by a fine or by a restitution-type cleanup situation. She also asked what the impact would be on the incarceration system, how many people would be put in jail for this, and at what financial cost.
Assemblyman Manendo said there would be judicial discretion, but he had not seen a fiscal note on A.B. 11.
Chairman Anderson commented this bill provided for a term of imprisonment in the county jail or detention facility, but the fiscal note did not address the cost.
Assemblyman Carpenter asked about the “other religious purpose” on page 3 of A.B. 11, and what the definition of that was.
Ms. Lang answered that this section of the bill amended NRS 206.125, and that it was intended to capture any place used for religious worship.
Mr. Carpenter also commented about the specific language, “cemetery or mortuary or other facility,” and said if the bill was going to be amended they might want to add “mausoleum” to the paragraph. However, Chairman Anderson interjected that the language “purpose of burial” probably covered that.
Mr. Manendo said that Mr. Carpenter made a good point. On the next line, “any school, educational facility, or community center” did not include libraries; he said he was not sure if “educational facilities” included libraries.
Ms. Lang said that libraries might be included under “school, educational facility, or community center”; however, she said they could specify libraries. She indicated the definition was used for the purpose of subsection 3 on page 2, which made a first offense a gross misdemeanor with a heightened penalty.
Mr. Carpenter commented that restitution for damage should be specifically detailed in the bill.
Chairman Anderson asked if there were any other questions for Mr. Manendo or Lt. Olsen. Hearing none, the Chair took a moment and acknowledged the hard work of Ms. Van Geel in putting together the in-depth document that preceded the “Categories of Misdemeanors” bulletin. He said that it had been invaluable to him as a member of the subcommittee and that he had used it for other reference purposes. Chairman Anderson suggested that the members of the Committee might want to add it to their reference libraries. Ms. Van Geel thanked him and said that there were plenty of copies available. The Chair concluded by saying that he knew that Ms. Van Geel did not advocate any position on the bill.
Chairman Anderson acknowledged that Jim Nadeau was there in support of A.B. 11 on behalf of the Washoe County Sheriff’s Office, even though he declined to speak. The Chair asked if Ms. Lusk was there in support of or opposition to A.B. 11, as she had not indicated which.
Lucille Lusk, representing Nevada Concerned Citizens, said she was in support of the intent of A.B. 11 and many of its provisions, especially high-cost willful vandalism, disruption of public services, and repeat offenses. However, Ms. Lusk pointed out a concern with the wording of the bill and what she perceived as unintended consequences. She referred to page 1, line 12, of the bill, “for the first offense: unless the provisions of subsection 3 apply, where the value of the loss is less than $250,” and on page 2, lines 16 and 17, “a person who commits a violation of subsection 1 involving protected property is guilty of a gross misdemeanor.” She said the subsection provided no options; a gross misdemeanor meant a year in jail and/or a $2,000 fine.
Ms. Lusk commented on the bill’s definition of protected property. She stated that within the definition of protected property were schools and community centers, the places where kids hung out and were most likely to do some form of damage. She noted that the definition was not just vandalism or graffiti, but also other damage. She said this was in line with the question Ms. Buckley asked except that it was at the first offender level. Ms. Lusk said it also included any property inside those facilities, and because of that, in an event where there was minimal damage, the value of loss could be $20 to $250, such as windows, lockers, basketball hoops, the offender must be charged with a gross misdemeanor. She wanted to point out that this conflicted with the intent of the study, which was to make the penalties consistent with the crime.
Speaking for the Nevada Concerned Citizens, Ms. Lusk requested the Committee to consider making the penalties consistent across the board to fit the crime, and suggested focusing on restitution so that minors would learn to respect the law. She opined that young offenders should be required to make restitution so they realized they had hurt real people, and whenever possible the minor should be involved with repayment so that there might be fewer second offenses.
Ms. Lusk added that it seemed that the solution to avoid the confusion with where the law applied was to eliminate the “laundry” list of protected properties and to assign the penalties based upon the value of the loss across the board.
Assemblyman Conklin expressed a concern about the age of the offenders and asked whether the bill was directed at people over or under the age of 18. Chairman Anderson asked Ms. Lang to answer.
Ms. Lang explained that in this state, if a child broke a law or committed a felony, he would come under the jurisdiction of the juvenile courts under Chapter 62. Thus, a child was not actually adjudicated to be guilty of a felony or a misdemeanor; he was found to be delinquent and in need of supervision. The juvenile court determined the penalty in accordance with Chapter 62, which was often community service. She indicated that this process served to bring children into the juvenile division, but did not actually make them guilty of a crime per se.
Ms. Buckley agreed with Ms. Lang and added that the issue addressed on page 2, lines 28 through 33, of A.B. 11 should be considered. A parent or legal guardian of a child under the age of 17 who violated this section was liable for all fines. She indicated that there was still some interplay that should be considered.
Chairman Anderson reminded the Committee that in a past session when the graffiti problem was considered initially, holding parents responsible for the actions of their children was one of the more controversial parts of the discussions. He indicated that Ms. Ohrenschall’s initial legislation had set up this process. Chairman Anderson said they had been concerned about parents who really were trying to control their children, but the kids were “out there doing their thing.” He asked the Committee to keep in mind that kids were not breaking those windows or painting graffiti on walls because their parents had sent them out there to do that.
Ms. Kami Dempsey, Manager, Government Relations, City of Las Vegas, spoke in favor of A.B. 11 but said she would not reiterate how costly abating graffiti was to the City. She pointed out that the City supported Assemblyman Brown’s comments on having administrative assessment go to the abatement instead of just to the financial loss awards. She said that it would help with some of the costs the City used to correct or fix the graffiti. She also said the City would like to have seen parks included under the definition of protected property because parks were often damaged by kids hanging out in the parks. She said Karen Coyne, also with the City of Las Vegas, would detail the some of the City’s costs.
Ms. Coyne gave a follow-up to Lt. Olsen’s testimony where the City of Las Vegas’ costs were related to graffiti abatement. She informed the Committee that the City’s budget included three full-time staff members in their rapid response division, and all the corresponding employee costs, such as uniforms, vehicles, and paint, and additionally, there was approximately $60,000 on top of that. She said they also sponsored many neighborhood cleanups throughout the year. She said the team was primarily interested in right-of-way areas of residential districts, so those three full-time staff members were extremely busy.
Chairman Anderson commented that where he taught school, the kids often drove their trucks onto grassy areas and destroyed the grass. Those kids replaced the grass themselves under the supervision of the school’s maintenance staff. He asked if the City had a similar program.
Ms. Coyne said that type of repair was made by the park maintenance division and could be very costly as well.
Chairman Anderson clarified his comment and asked if the individuals responsible for the damage were ever made responsible for repairs.
Ms. Coyne responded that the court usually imposed punishments, although there were occasions when community service workers went out and painted over graffiti. She said she was not aware of any specific case where an offender repaired his own damage.
Ms. Dempsey added that under Senator Wiener’s bill that passed in the last session regarding restitution, the City of Las Vegas tried to include restitution when it could.
Michael Pagni, representing the National Council to Prevent Delinquency in Reno, informed the Committee that the Council was a non-profit organization funded by industry, which sought to prevent or reduce the unlawful use or misuse of consumer products. He said that anti-graffiti was one of their largest efforts and just wanted to go on record that the Council supported the intention of A.B. 11.
Ms. Susan Fisher, representing the City of Reno, said that the Reno City Council had not formally adopted a position on A.B. 11, although it was staff’s recommendation that the City of Reno support the bill in its entirety. However, the City of Reno wanted to propose an amendment to it (Exhibit D). She indicated that the amendment was acceptable to Lt. Olsen. The City of Reno had requested BDR 375 to deal with graffiti throughout the city. The individual incidents of graffiti usually accounted for minor damage, but the multiple instances, when accumulated, were big dollar amounts. They would rather have included some language that would have accumulated the offenses, primarily with graffiti, which was so identifiable. Their graffiti hotline in the tri-government area received about 250 calls a month, and in 2001 the graffiti cleanup crews cleaned up fewer than 4,000 sites. Ms. Fisher said that every dollar spent on graffiti was money taken away from other programs in the community.
The language the City of Reno proposed adding to the bill would go on page 1 at the end of Section 1, subsection 1, line 6, where it ended with “owner”; they proposed the following:
Where an accumulation of offenses is obtained, the value of all property loss or damage shall be used for purposes of determining the appropriate charge under NRS 193.155.
Ms. Fisher added that this might have addressed Mr. Brown’s concern about graffiti actually being property loss or damage.
Chairman Anderson asked Ms. Fisher if she were aware of whether the City of Reno had brought this to the subcommittee on misdemeanors relative to this particular issue, or whether the City of Reno had talked to the chairman of the study committee so he might have had the opportunity to review the amendment.
Ms. Fisher responded that as far as she knew, the City of Reno had not participated in the interim committee. She had not represented the City of Reno at that time. However, she said that staff had met with the chairman yesterday and told him that the City of Reno was philosophically in support of A.B. 11, even though the City Council had not yet voted on it. Ms. Fisher indicated that they were actually going to vote on whether or not to support the bill that day. She said they informed the City Council that staff was supporting A.B. 11. She indicated that staff had also told the Council that they had their own bill draft request dealing with this, but the language was not exactly what they wanted; therefore, when they saw A.B. 11, staff considered the bill to be a good vehicle in which to insert the graffiti language.
Chairman Anderson acknowledged that Ms. Kristin Erickson had signed in for support of the legislation but chose not to speak. He then called the next speaker.
Mary Lau, Executive Director of the Retail Association of Nevada, said that the Association supported A.B. 11, and she thanked the subcommittee for their work on it. She said the Association was also involved with the Industry Council that was mentioned earlier, and the Association had represented several church organizations as well. While they would have liked to see the legislation extended to other properties, it was the Association’s philosophy that they would “wait and see” how this worked, and how people assumed responsibility and were held accountable for their behavior. Ms. Lau indicated that the Association might come forward in the future and ask this to be applied to private property also.
Rose McKinney-James, Legislative Representative, Clark County School District, indicated she had received comments from Chief Elliot Phelps, the chief of the school police for the Clark County School District, in support of the measure. She said that he noted two aspects of the bill: increased sanctions had a major impact on the schools, and increased penalties might increase the rates of restitution. Ms. McKinney-James concluded by offering support for A.B. 11.
Dan Musgrove, representing Clark County, said he supported A.B. 11 and the actions of the chairman of the subcommittee, as well as the actions of Lt. Olsen of Metro.
Howard Brooks, President, Nevada Attorneys for Criminal Justice, said he was not speaking for the Clark County Public Defender and spoke in opposition to A.B. 11. He related that in his twelve years as a defense attorney he had seen only a handful of graffiti cases in the justice court system for Clark County because he believed that these cases went to juvenile court. He opined that the problem was not the current law but was, rather, catching the graffiti offenders. Mr. Brooks said that it was best to catch the vandals, make them pay restitution, and impose a fine of community service, and if necessary, hang a short jail sentence over their heads. He stressed that the best way to do that was to keep these cases in the justice and municipal courts because they did a good job of collecting restitution and getting things done. He said that from his standpoint as a defense attorney, this was a drain for the defense of the bar. For example, if his client was charged with a felony in justice court, where all those cases started, he would request a misdemeanor and a fine; the District Attorney would say no; he would respond, “Let’s go to district court,” where there would never be a jury trial on this kind of charge. He said that district court did not do a good job of collecting restitution. Mr. Brooks concluded his testimony by saying he was against graffiti, but felt this bill was misguided and naďve about how the court system really worked.
Mr. Carpenter asked if the case were a misdemeanor would it stay in justice court. Mr. Brooks answered yes, that if it were a misdemeanor it would stay in justice court or municipal court, and those courts monitored those cases. If it were a gross misdemeanor or a felony, it would go to district court and then risk being dismissed because a defense attorney most likely would not negotiate this type of case. Mr. Brooks contended that this type of case never went to trial.
Mr. Carpenter said that he did not think this type of case happened very often, but it looked like there was a tool for the prosecution to take such a case to district court if the damages were that serious. He said that maybe the bill covered the concern, and perhaps the District Attorney should decide whether the case went to district court or not.
For clarification purposes, Chairman Anderson posed a scenario in which a young man had transgressed several times. His attorney advised him that they would push for district court. The reason for this was that the district court calendar was so crowded that the District Attorney, in all probability, would do nothing. Therefore, the court’s opportunity to rebuke the young man and his transgression of nature would have passed because he was no longer under the jurisdiction of the Justice of the Peace (JP). Chairman Anderson asked Mr. Brooks if this could have happened.
Mr. Brooks responded that if he had been a graffiti offender he would not have wanted to be in front of a JP because he would have had to pay a fine or would have gone to jail. However, if he went to district court, where the judges listened to murder, rape, and other very serious felony cases, this type of case would have always been at the bottom of the list. Mr. Brooks implied that the District Attorney and district court would have wanted to get rid of the case. He stressed that these cases belonged in justice court and municipal court, where a JP or municipal court judge would have to supervise them.
Assemblyman Horne asked if the Committee could have heard how a District Attorney would have handled such a situation.
Chairman Anderson asked if there was anyone else speaking in opposition to A.B. 11 before he called on Ben Graham to respond to Mr. Horne’s question. Mr. Graham said he had not signed in to speak on A.B. 11 but would respond briefly.
Chairman Anderson added that he understood there was an amendment out there, and said he was a little distressed because he had not seen any amendments at all. He indicated he was not happy to know that there were amendments floating around that had not been given to the Chair or the Committee and that, apparently, there were problems with the bill that no one had brought to his attention. He said he found this stressful because he would have liked a clean piece of legislation. He said he knew that the chair of the interim committee would have also.
Ben Graham, representing the Nevada District Attorneys’ Association, rebutted the issue Mr. Brooks presented. He said that many times alternatives were sought in district court. Even though it might not be an alternative that would be used often, it was available. He said he thought the judicial system would have handled it properly; under the right circumstances, it was possible for a case like this to end up in district court and be resolved there without a trial. He concluded, “at least it’s one of those things we talk about, an extra arrow in the quiver.”
Chairman Anderson said that if they were going to proceed with A.B. 11, which looked doubtful at the moment, there were several major problems that needed to be addressed. He asked if there was anyone else who wished to give testimony on A.B. 11 and asked for the amendments that were going to be proposed be put in writing and given to Ms. Combs and to the Committee. He said he thought there were two, one from the City of Reno and one from the City of Las Vegas. He indicated that Ms. Buckley and Mr. Brown had brought forth several concerns, as had Ms. Lusk, which needed to be addressed if the legislation were to proceed. Chairman Anderson advised that if anyone were interested in seeing the legislation go forward, they should try to alleviate some of those concerns. He announced the work session for A.B. 11 was scheduled for February 25, 2003, and that Ms. Combs should have received the amendments by 3:00 p.m. on February 20, 2003.
Chairman Anderson closed the hearing on A.B. 11 and opened the hearing on Mr. Manendo’s bill, A.B. 8.
Assembly Bill 8: Revises provisions pertaining to child abuse. (BDR 15-65)
Assemblyman Mark Manendo, Clark County District No. 18, indicated that he brought forth Assembly Bill 8 on behalf a constituent, Pamela Rowse, in Las Vegas.
Mr. Manendo said that over the years, the Committee on Judiciary, under Chairman Anderson, had been involved with the statutes entailed in this bill, and one in particular was doubling the minimum sentence on child abuse and child neglect. He opined that it was obvious that senior citizens and children were the most vulnerable people in society, and every effort possible should be made to protect them. He commended Chairman Anderson for his outstanding support of these areas over his legislative career.
Mr. Manendo said he would yield his time, as he did not anticipate so much time would have been spent on the previous bill. He apologized for that, and said, he too, was not happy with the problems brought out during the discussion of A.B. 11. He asked if could turn over the testimony to Mr. Graham and noted that there were people in Las Vegas who also wished to testify.
Chairman Anderson noted that Pamela Rowse was waiting to testify in Las Vegas.
Mr. Graham said that he, Ms. Rowse, and Doug Herndon, Chief Deputy District Attorney, were there in support of A.B. 8, which would make more definitive the fact that Shaken Baby Syndrome (SBS) was applicable to child abuse and neglect. Although this was a more specialized area than he normally dealt in, Mr. Graham said that it was one he felt appropriate, and under the right circumstances fell under this statute. He indicated that he had handed out a short amendment (Exhibit E), which would go on page 3 in place of the amendments on lines 20-27, and which was a more definitive description of SBS. He concluded by stating he was there mainly to offer support and to introduce Mr. Herndon.
Mr. Manendo commented that he had seen the amendment ahead of time, and appreciated the fact that it was brought forward. He added that his constituent’s granddaughter, Kierra Harrison, was a victim of such a crime.
Chairman Anderson said it might be helpful for the Committee to hear Ms. Rowse’s testimony before they took up the amendment, since Ms. Rowse was the constituent who brought forth the question, and he wanted to make sure that the Committee heard what tragedy prompted this legislation.
Ms. Pamela Rowse, Registered Nurse, read from prepared testimony (Exhibit F). She said she had practiced in Nevada since 1980 focusing on emergency and pre-hospital patient care until 1998 when she found it necessary to start a nonprofit organization, the Kierra Harrison Foundation for Child Safety.
She thanked the Committee for the opportunity to speak on SBS and A.B. 8 as it related to the definition of SBS and the Nevada Revised Statutes on child abuse.
She related the events leading up to her crusade. In March 1997, her 14-month old granddaughter, Kierra, had died from brain injuries after being shaken and slammed onto a blunt surface. Even as her tiny and unresponsive body was taken into a CAT scan, there were no external signs on her body that indicated abuse. Kierra’s brain injury was so severe she did not survive.
After many years of researching SBS, Ms. Rowse discovered that there was a major crisis regarding not only the children identified with this injury, but also the prosecution and conviction of the accused perpetrators.
Ms. Rowse maintained that in the United States there was little knowledge of SBS. Physicians, law enforcement, prosecutors, judges, and juries accepted that children with no outward signs of abuse could not have been abused. According to Ms. Rowse, such a child might have been “only a subject in a random loss of adult temper and an excusable act of anger.” She said that this was now known to be untrue.
Ms. Rowse cited the American Academy of Pediatricians position statement dated July 1, 2001: “Shaken Baby Syndrome: Rotational Cranial Injuries—Technical Report.” SBS was defined as a serious and clearly definable form of child abuse resulting from extreme rotational cranial acceleration induced by violent shaking or the impact from shaking, which was easily recognizable by others as dangerous. The position statement indicated that more resources should be devoted to prevention of this and other forms of child abuse.
Ms. Rowse said that the amount of force required to inflict injury by shaking was sufficient to be recognized by not only the adult inflicting the shaking, but also by anyone, including a child, observing the act.
Ms. Rowse quoted two internationally documented cases regarding “adult shaken syndrome.” The headline read: “Israeli First Word Torture is Spoken. U.S. Attorney General Condemns Shaking of Arab Prisoners in Interrogation.”
Ms. Rowse read the rest of the article, as follows:
Ben-Yair, whose reply was made public today, was so angry that he broke a longstanding taboo. He became the first senior government official in memory to use the word “torture” in the context of Israel’s treatment of Arab security prisoners, and he spoke graphically about a method known as “whiplashing” or “shaking.”
He spoke of violence in the interrogation cells, and brain damage, and even death. He disclosed nothing not well documented by the world’s leading human rights organizations, several of which have long accused Israel of torture, but the words were revolutionary for a man in his position.
“The interrogation death of detainee Abdel Zamed Harizat in April,” Ben-Yair told the law journal, “shook all of us in the Justice Ministry and me personally. We saw a demonstration on videotape of the shaking, and it was completely different from what is written in the regulations. I discovered that this is emphatically a physical method, and the fact is that it caused a man’s death.”
“We didn’t know what shaking was,” Ben-Yair said, referring to the ministerial committee that is supposed to supervise the Shin Bet. “We thought it was a slight rocking. The damage that could be caused by shaking is not only death. The subject can also suffer brain damage.”
Ms. Rowse contended that the man suffered the same clinical presentation as infant SBS victims: subdural hematomas, and retinal hemorrhages.
Ms. Rowse said that Nevada had the opportunity to move forward in the prosecution and conviction of individuals that chose to violently harm children. She remarked that approving A.B. 8 with the added definition of SBS placed Nevada in the forefront of child abuse prevention and prosecution. She elaborated that children needed to be protected, and that their injuries and deaths needed to be prosecuted effectively; A.B. 8 assisted in this pursuit.
Ms. Rowse concluded by thanking Chairman Anderson and the Committee, as well as Assemblyman Manendo and the subcommittee, the Clark County District Attorney’s Office, the Clark County Fire Fighters, Las Vegas Metro, and all who were supportive in the fight for better child abuse prosecution.
Chairman Anderson thanked Ms. Rowse for bringing this to Mr. Manendo’s attention and for following up with the District Attorney’s Office.
Douglas Herndon, Chief, Special Victims Unit, Clark County District Attorney’s Office, said he had brief comments on the bill as a whole, but would start first with the amendment. He apologized for his tardiness in getting his research done in order to come up with a more complete medically acceptable definition of Shaken Baby Syndrome for the statutory construction and language. He said this was important because within the child abuse prosecutions, doctors defined injuries and fit them into medical jargon that most often came down to non-accidental versus accidental trauma. He said he also looked at what constellation of injuries constituted a certain diagnosis and, using this combination, came up with the definition proposed for the amendment to A.B. 8. He said he thought the bill was directed in a very good way, and was a necessary change to the current construction of NRS 200.508 dealing with child abuse.
Mr. Herndon recalled testifying before the Senate Committee and rewriting the proposed changes that raised first offense for child abuse without substantial bodily harm from a gross misdemeanor to a felony. He indicated that one of the things that compelled him to rewrite the definition was how shocked people were when they learned about the acts perpetrated against children that did not result in substantial bodily injury by definition in state statutes. Mr. Herndon stressed that children, especially infants, were extremely resilient to violent acts. Horrible things had been done to children that did not result in charges because substantial bodily harm was not readily apparent from a legal standpoint. He said that this was what probably compelled the Legislature to pass the bill that raised “first offense non-substantial bodily harm child abuse” from a gross misdemeanor to a felony.
Mr. Herndon opined that every rational and reasonable human knew that the violent shaking of an infant was an abusive act. He did not believe anyone would question that, regardless of the motivation of the perpetrator. Whether one lost his temper and inflicted this act upon a child, or whether one intended to kill a child, it was still an abusive act. However, in the statute, from a legal standpoint and for the purposes of prosecution, abuse and neglect were defined as “physical injury.” And physical injury, as defined in Section 1, paragraph 4 (d), was a “permanent or temporary disfigurement, or impairment of any bodily function or organ of the body.”
Mr. Herndon explained that SBS by its nature, even with an impact element to it, did not usually result in any external signs of injury. The impact was most often the result of shaking, throwing, or slamming a baby down onto a bed or crib, or most often, a soft object. The impact caused certain things to happen intracranially, but did not necessarily result in any bruising or lacerations or any other externally visible symptom to even a physician. So there would not be a permanent or temporary disfigurement issue with SBS. Moreover, when dealing with infants and very small children, the ability to distinguish between what was naturally occurring in a baby and what was the result of what was going on intracranially was difficult even for doctors. So the impairment of any bodily function or organ of the body was a vague definition when talking about the injuries sustained in children.
Mr. Herndon said that giving a more complete definition of SBS and including it in the physical injury portion of the statute would allow not only the general public, but also juries and judges, to more readily understand this form of child abuse. He told the Committee that over the last several years his office, which specialized in these cases, had probably prosecuted more than 80 cases of physical child abuse and child abuse homicide, and the majority of those cases involved abuse by shaking-type injuries.
Chairman Anderson asked for questions from the Committee. The Chair voiced a concern about “word-smithing” relative to the bill drafters putting in time to come up with consistent language. He said that Nevada had a great tradition that had managed to serve the Legislature pretty well. It was started by several different bill drafters, but most notably Mr. Frank Daykin, who made sure that the LCB bill drafters tried to keep the statutes in conformity so that they would not be overturned in the courts. Chairman Anderson also disclosed that there was a doctor on the Committee who had some background in the overall area, and although this was not his specialty, he probably was aware of this kind of problem. The Chair reiterated his concern about word-smithing and how the language was determined. He asked Mr. Herndon if he had he picked the language from another statute in another state or created the words himself.
Mr. Herndon responded that he had actually created these words in part from medical definitions of SBS that had been put forth by some of the national experts and from his discussions with doctors who had testified at hearings in terms of what determined a diagnosis of this kind and how it was described in court.
Chairman Anderson asked if he had discussed the proposed bill with them, and Mr. Herndon said he had not; however, there was a pediatrician present and waiting to testify at Ms. Rowse’s request who had reviewed A.B. 8 in its initial form as well as the proposed amendment.
Ms. Buckley said she appreciated the bill and appreciated learning more about this issue. She said she was not clear about how an individual who intentionally shook a baby should be prosecuted, and without a doubt, if those tools had not been available, they should be. Her question for Mr. Herndon was, “Why don’t we have them?” She went on to say that abuse and neglect was illegal, and was already codified here. She said if someone shook a baby and injured or killed him, his bodily functions had been impaired to the degree that they would fall under the definition in the bill, because it was a permanent or temporary disfigurement, or impairment of any bodily function or organ. Ms. Buckley further noted if one shook a baby enough to injure or kill him, it would already be illegal. She asked Mr. Herndon to comment and asked why the current statute was not working.
Mr. Herndon responded that he did not think that it was that the current statute did not work; rather, it was just the perception that this might make the statute better. He said doctors testified about it at trials, and he said that people had been prosecuted for SBS as it related to child abuse, causing both injury and death, including the prosecution of the abuser of Ms. Rowse’s grandchild. However, he contended that the District Attorney always looked at better ways to educate the public and juries. Although SBS was clearly a medically accepted, tried, tested, and true diagnosis, Mr. Herndon said the general public was not greatly aware of it. He continued that there was no statutory definition that allowed courts to give good jury instructions on an issue like this. He said that they tried to pigeonhole SBS into the current definition of physical injury, and although the District Attorney had successfully argued it in trials, providing a definition of SBS within the physical injury standpoint would have delineated and distinguished it, so that it would have been understood that an injury was permanent even though it might not have been readily apparent. He agreed that if a child died, then obviously his injury was permanent.
Mr. Herndon went on to say that impaired use of bodily functions, especially in infants, might not develop until months or years after a shaking event. As the baby became a toddler, he might have developed motor-skill problems, cerebral palsy, or blindness as a result of shaking injuries that were not immediately apparent. He said that the District Attorney routinely got arguments in cases such as this where the child did not actually die.
Chairman Anderson asked if there were a danger that, by adding evidence of SBS, the Legislature was going to start on the path of creating a long “laundry list” of specific events. He said there were many other crimes that had been charged under the current statute’s “impairment of any bodily function or organ of the body” without being line-specific to SBS; the statute seemed to be working as constructed.
Mr. Herndon said it was not his intention to create an opening in the statute to define every possible injury. From his perspective, the general public understood broken bones, external injuries, such as cuts, lacerations, burns, and other injuries that did not need medical definition or help in understanding. SBS, on the other hand, was a different kind of injury that the general public did not grasp as well without medical or statutory intervention and explanation.
Assemblyman Carpenter asked how many cases had not been prosecuted because of the current language, and if the proposed language would have made any difference in those cases. Mr. Herndon responded that he would have liked to have told him that there were some; however, anytime the District Attorney suspected that a child had been subjected to SBS, they had prosecuted. Mr. Herndon said he could not say the lack of the language had caused them to be unable to successfully prosecute.
Assemblyman Brown had a similar concern to Assemblywoman Buckley’s that the phrase, “impairment of any bodily function or organ of the body,” would suffice. He said he was concerned about detailing specific definitions, and he wondered if some of these issues, such as subdural hematomas and intracranial hemorrhage, retinal hemorrhage, et cetera, could manifest themselves in degrees. He related that his nephew had hurt his eye with a ball and had retinal hemorrhage, so he wondered how many different things could produce that kind of result. He asked if that would that create possible problems in terms of prosecuting those who may not have been involved with SBS.
Mr. Herndon responded that these types of injuries could manifest themselves in other ways, but those usually resulted from high-distance falls or high-speed motor vehicle accidents with an unrestrained child. Many times there were other ways a child received the injuries exhibited in SBS, but when the doctors made a diagnosis it was usually in the absence of any history of injuries to the child. He described a common scenario where a perpetrator was home alone with a child, and an hour after giving the child a bottle, the child stopped breathing. There was no history of a high distance fall, or motor vehicle accident, or some other blunt trauma; the perpetrator said he had no idea what happened. Mr. Herndon said that doctors were able to look at the injuries, and, through tests, or, unfortunately, autopsies, the injuries could be dated and placed within a time frame of where the child was and under whose care the child was at the time.
Chairman Anderson asked Mr. Graham to help with this. Mr. Graham said he appreciated the complexity of this legislation and said that it should be remembered that in every crime there was a corpus, certain elements of the crime; each one of the elements had to be established beyond a reasonable doubt. Mr. Graham said this was an area where one would get medical testimony of fact for the jury. This did not cover accidental situations, and even though making a laundry list was not the intention, Mr. Graham said he thought the feeling of the sponsor and supporters of the bill was that if SBS were better defined, it would provide for better jury instructions and better information to the public as to what was actually involved in this very bad situation.
With regard to Mr. Carpenter’s question about the possibility of cases not prosecuted because of the current language in the statute, Mr. Graham remarked that it probably was a difficult thing because currently SBS was not carefully defined, and he said he thought one might find a few cases that would have come under this that might have been missed in the past.
Chairman Anderson commented about the question of jury instruction and asked if expert testimony was used to influence the jury. He said he presumed that calling in the doctors who dealt in this area, or trauma nurses who had the specific background to identify this kind of trauma, would demonstrate to the judge and to others that injury had taken place, because one did not necessarily always see such injury right away; even a broken bone could not always be seen right away.
Mr. Graham commented that A.B. 8 would make things a little bit clearer and more informative; he said he thought it did no harm and that there were beneficial effects to passing this legislation.
Assemblywoman Ohrenschall said that she was sure the Committee had received a communication from Amy Coffee, the Clark County Public Defender, in which she stated concerns as follows:
Ms. Ohrenschall told of a situation she came across while walking her district. She had knocked at the door of a woman who did not speak English. After talking a while in Spanish, it turned out that the one problem the Hispanic woman had was that the county was trying to take away her older child based upon allegations of SBS of her baby. The woman had left the room the baby was in for a minute to go and cook; the older child picked the baby up, dropped him, and, being frightened, picked the baby up again and put him back into the bassinette. When the baby exhibited symptoms, the woman took the baby to the hospital, and she was charged. The older child ultimately came forward and admitted he had dropped the baby, and that his mother had not been present. Nevertheless, between the language barrier and everything else, it was a very difficult situation for the family. Ms. Ohrenschall asked if anyone had considered the possibility of how this would play out in an active court of law.
Mr. Graham responded that reading the language that was offered, a violent, non-accidental shaking and impact, was not like the accident Ms. Ohrenschall described. He said that these were heavy burdens, but he thought there was adequate protection for anyone who innocently did something like this.
Mr. Herndon commented that a Committee member asked whether he had seen these injuries from other and possibly innocent sources. He told the Committee that he had personally attended autopsies of children where this type of injury was suspected, but the District Attorney had not sought prosecution because of the way the injuries appeared. Although the doctors were able to determine whether injuries were related to a shaking or not, there were a number of situations that were not prosecuted.
Ms. Ohrenschall commented that she agreed with Assemblywoman Buckley and the rest of the Committee; anyone who shook a baby should be prosecuted. However, she wondered if, by setting these particular standards in law, doctors would be expected to be psychic. They saw a result, but they might not be able to say how that result came about because there were other events that could have produced the same symptoms. She said this possibility needed to be examined.
Dr. H. Shawn Wijesinghe introduced himself as an emergency physician and the Pediatric Emergency Director at St. Rose Dominican Hospital. He said he also worked at University Medical Center, Pediatrics. He said that hospitals were at the forefront of seeing traumatic incidents involving children and adults. He said that SBS was a condition that was less diagnosed than it should be because it was usually later discovered that the child and parents had made frequent past visits to the emergency room, and hospital staff had not picked up on that until it was too late.
Dr. Wijesinghe indicated that Mr. Herndon had done his research on how SBS was diagnosed. However, Dr. Wijesinghe said that kids came in who had fallen off tables or gotten hurt fighting with siblings, and whose conditions went unreported. He said that whenever there was subdural bleeding, the appropriate neurosurgical intervention, as well as intensive care, was obtained. He said that more than 80 percent of diagnoses were based on history, what the family told them, and what was inconsistent about that history. In addition to the physical examination were the diagnostic modalities, such as CAT scans and MRIs, and although doctors did not rely 100 percent on any one modality, those tests helped determine whether there were inconsistencies in the clinical history. If there were any suspicion, they would refer the incident to the appropriate authority. This was done in the effort to prevent a child from being involved a second time, when an initial incident was not obvious.
Dr. Wijesinghe went on to say that with obvious cases, no physician in his right mind considered himself an expert or wanted to be an expert in that field because it was very emotionally taxing, not only for the physician who resuscitated those children, but also for everyone else on staff. He stressed that SBS was not diagnosed without adequate evidence; multiple physicians came to that conclusion, including the emergency room physician, the pediatric intensive care unit physician, and in the worst-case scenario, the pathologist. Dr. Wijesinghe elaborated that it was taxing, financially and medically, when children who had been resuscitated experienced such bad neurological sequelae as time went on with motor function and mental retardation. Therefore, this diagnosis was not something they wanted to miss early on.
Addressing a concern the Committee had about misinterpreting the way a child presented, Dr. Wijesinghe said there was always one case report somewhere that could have happened; however, the medical personnel always made it a point to be fair and to not pass judgment in the hospital, especially in the emergency room. A case had to be considered by several committees before it was determined to be SBS.
Chairman Anderson asked if this law would have changed the way Dr. Wijesinghe would have worked in his emergency room.
Dr. Wijesinghe said the law would not have changed how he operated in the emergency room. However, he indicated that he would like to see that there was punishment to fit the crime and to know more people were made aware of the significance of what happened when a child was shaken. He said that if he saw one more child with a Shaken Baby Syndrome, it would be one too many. Dr. Wijesinghe said that there were many avenues a mother or anyone else could use to help resist harming a child; eight emergency departments in Clark County were available. He concluded by saying that he wanted to make sure the message got out not to let a situation get to the point where a child needed to be resuscitated, because that outcome was very poor.
Ms. Ohrenschall commented that she had received e-mail from David Gibson, member of the legislative team in Las Vegas, explaining that for about an hour he had been wrongly accused of such abuse at one time when his young son was hemorrhaging and taken to the emergency room. A family condition was diagnosed, and all went well. She just wanted the Committee to know.
Chairman Anderson called on speakers in opposition to A.B. 8.
Howard Brooks, President, Nevada Attorneys for Criminal Justice, spoke in opposition to A.B. 8. He said he was not a child abuse expert, but he had litigated such cases. He said these cases broke his heart; nevertheless, he strongly disagreed with Mr. Graham about the statute and the need to have it. He opined that the statute as it was currently written was working fine. He said that Mr. Herndon and his attorneys were very aggressive and successfully prosecuted SBS cases regularly. He suggested that the bill was simply not necessary. He said he also disagreed with Mr. Graham’s characterization of what the bill really did. He stated that incorporating SBS into the definition of child abuse would change a factual finding by a jury into a legal issue. He said the legal issue would become whether the statute was now too broad. Mr. Brooks said if he were a victim he would want finality. There would be a far greater chance of finality if there were a factual finding by a jury of child abuse rather than a conviction based on a very broad statute. Concluding, Mr. Brooks said there were experts on both sides of the issue; people could say that SBS and the various symptoms listed in the bill were often caused by accidental happenings.
Lisa Rasmussen, a private attorney in Clark County and also a member of Nevada Attorneys for Criminal Justice, said she had dealt extensively with the defense of several SBS cases, and she wanted to make a couple of comments about the statute. She said that she had not seen the amendment that Mr. Herndon proposed but would comment about what was said this morning. She wanted the Committee to know that this was a controversial issue with regard to expert and scientific testimony. She mentioned that she had written an amicus brief two and a half years ago on behalf of 16 physicians and biophysicists who were nationally known. The result of that brief was that at least five myths were identified that prosecution experts were regularly setting forth. One of those myths was that retinal hemorrhages were tantamount to SBS. She argued that one could not simply say if there was retinal hemorrhage that it was due to SBS. She maintained there were other causes of retinal hemorrhage, such as CPR in infants or, as mentioned earlier, being hit in the head with a baseball. She said there were certainly other causes of many of the symptoms and, not knowing what Mr. Herndon’s amendment was, she surmised it was what some prosecution experts called a constellation of injuries that typically resulted from violent shaking.
Ms. Rasmussen said she wanted the Committee to know that these issues were widely disputed, and defense and prosecution experts did not agree on almost any of the science. She said that to codify the science that was being proposed by this bill was essentially taking the scientific determinations away from the jury and codifying it so that it would essentially just become a jury instruction.
Another issue Ms. Rasmussen raised was the potential fiscal impact. If a laundry list of symptoms were included in the statute, it would have an impact on the way that the cases were defended. She said as private counsel, to effectively defend a Shaken Baby Syndrome case would cost from $25,000 to $40,000 in retaining experts, such as a pediatric neurologist, a forensic pathologist, an ophthalmologist, and perhaps a pediatric radiologist. She said she did not know if the Committee had considered the fiscal impact.
Ms. Rasmussen commented on the language originally proposed. She said the phrase “or other abusive head trauma” was vague and ambiguous, and she did not know how that could possibly be defined or helpful. She said she agreed with Mr. Brooks and some of the Committee members that the current statute was fine the way it was. She said the terms “permanent or temporary disfigurement” and “impairment of any bodily function or organ of the body” subsumed all of the proposed additions with regard to SBS.
Concluding, she said she disagreed with the testimony of proponents of A.B. 8 that the bill was necessary. She said she thought that the current statute as written was perfectly fine, and she did not think there was any need to codify what was essentially a widely disputed scientific issue.
Edward Cotton, Administrator, Nevada Division of Child and Family Services, (DCFS), Carson City, thanked the Chairman for the opportunity to speak in support of A.B. 8. He said he could cite various studies, and according to his research, more than 50,000 cases of SBS occurred each year in the United States. He revealed that one shaken baby in every four died as a result of this abuse, and head trauma was the most frequent cause of permanent damage or death among abused infants; shaking accounted for a significant percentage of those cases.
Speaking from prepared testimony (Exhibit G), Mr. Cotton said studies indicated that 15 percent of all children’s deaths were due to battering or shaking, and another 15 percent were identified as possibly resulting from shaking. He said medical professionals who worked in the field were concerned that the many injuries and deaths caused by shaking babies were not appropriately diagnosed or recognized. Injuries were often attributed to accidents or even to Sudden Infant Death Syndrome. Mr. Cotton said this bill would have heightened public awareness of this issue and would have made it easier for DCFS to protect children who were victims of SBS by assuring that a perpetrator no longer had access to the child.
Commenting on the public awareness issue, Mr. Cotton said he thought that Dr. Wijesinghe had touched on that. He mentioned that two and half years ago in Illinois, SBS was recognized as an epidemic. The Illinois General Assembly gave the Illinois Department of Children and Family Services more than $1 million to give to three children’s hospitals in Chicago, the University of Chicago Children’s Hospital, Wylers Northwestern Children’s Memorial, and Cook County Hospital, to train experts in this field and to have every head injury to a child in Chicago referred to these experts. He said that what they found, and Dr. Wijesinghe had alluded to this, was that a lot of these cases did not get reported by doctors, particularly in smaller hospitals, because they did not recognize the symptoms and did not have training in this field.
In terms of controversy among the prosecutors and defenders on SBS, Mr. Cotton said he knew of no controversy among child experts about whether SBS existed and whether it was an epidemic; he opined it was. He said he thought that public awareness was a big piece; people needed to know about it and watch out for it. He ended by saying that A.B. 8 was the kind of legislation was necessary to help protect children.
Chairman Anderson thanked Mr. Cotton and asked if there were any questions or issues that needed to be addressed. Seeing none, he closed the hearing on Assembly Bill 8.
Chairman Anderson said he was sending A.B. 8 to the board; it had amendments that were proposed, and he asked the researcher to include the bill and the amendments in the upcoming work session on February 25, 2003.
Of the three bills heard this morning, Chairman Anderson said he was comfortable with A.B. 10 and asked if any members of the Committee had any concerns about A.B. 10. Hearing none, the Chair said he would entertain a motion.
ASSEMBLYMAN CARPENTER MOVED TO DO PASS A.B. 10.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Anderson assigned A.B. 10 to Mr. Carpenter, as a member of the original subcommittee and as the maker of the motion, to defend the bill upon the Floor.
Chairman Anderson spoke of a revised agenda for the following day and of upcoming issues for the Committee. He asked if there was any other business and, hearing none, adjourned the meeting at 10:23 am.
RESPECTFULLY SUBMITTED:
Sabina Bye
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: