MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 18, 2003
The Committee on Judiciarywas called to order at 8:07 a.m., on Tuesday, February 18, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 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
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Carrie Lee, Committee Secretary
OTHERS PRESENT:
Peter Breen, Judge, Second Judicial District, Drug Court, Washoe County, Nevada
David Spitzer, Attorney, Washoe County Drug Court, Reno, Nevada
Deborah Agosti, Chief Justice, Supreme Court of Nevada, Carson City, Nevada
Ron Titus, Director and State Court Administrator, Administrative Office of the Courts (AOC), Carson City, Nevada
Daniel P. Ward, Judge, New River Township Justice Court, Fallon, Nevada
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice, Las Vegas, Nevada
Robert S. Hadfield, Executive Director, Nevada Association of Counties, Carson City, Nevada
Madelyn Shipman, Deputy District Attorney, Civil Division, Washoe County District Attorney’s Office, Reno, Nevada
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Las Vegas, Nevada
Kami Dempsey, Government Relations Manager, Office of Administrative Services, City of Las Vegas, Las Vegas, Nevada
James Hardesty, Judge, Second Judicial District, Washoe County, Reno, Nevada
Philip J. Kohn, Special Public Defender, Office of the Special Public Defender, Clark County, Las Vegas, Nevada
Michael Pescetta, Defense Attorney, Las Vegas, Nevada
JoNell Thomas, Nevada Attorneys for Criminal Justice and the American Civil Liberties Union, Las Vegas, Nevada
Ron Cornell, President, Families of Murder Victims, Las Vegas, Nevada
Daniel J. Greco, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office, Reno, Nevada
Scott L. Coffee, Attorney, Office of the Public Defender, Clark County, Las Vegas, Nevada
Nancy Lemke, Office of the Public Defender, Clark County, Las Vegas, Nevada
Chairman Anderson called the meeting to order at 8:07 a.m., and made opening remarks. He stated that the Committee would hear the bills out of the order they were listed on the agenda so the judges that were present could return to their courts. Chairman Anderson asked the Committee to consider introduction of the following bill draft request (BDR):
ASSEMBLYWOMAN OHRENSCHALL MOVED FOR INTRODUCTION OF BDR 20-580.
ASSEMBLYMAN GEDDES SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Buckley was not present for the vote.)
Chairman Anderson opened the hearing on A.B. 29.
Assembly Bill 29: Provides for additional administrative assessment to be collected in certain cases involving misdemeanors to pay for certain programs established by district courts. (BDR 14-130)
Chairman Anderson commended Judge Peter Breen, Second Judicial District Drug Court, Washoe County, Nevada, for the service, commitment, and guidance he provided to the community.
Judge Breen announced that he and David Spitzer, Attorney, Washoe County Drug Court, Reno, Nevada, would show a PowerPoint presentation. Judge Breen had been involved with the drug court in Washoe County for eight years and was pleased to present the first effort to solve the issue of a permanent funding source that would augment the needs of specialty courts in Nevada (Exhibit C).
Judge Breen paraphrased Section 1, subsection 9, wherein specialty courts were defined: a district court that established programs for testing, treatment, and oversight of the mentally ill, or abusers of alcohol and drugs; in other words, drug courts, family, juvenile, adult, and mental health courts. A.B. 29 would provide a stable funding source to augment current funding for specialty courts. He used the term augment because he did not seek the elimination of requests for funds for drug courts in the latest budget proposal from the Governor. This bill would address the future as well as the present.
Judge Breen said the history of specialty courts in Nevada came from a simple idea: to bring non-violent felons, gross misdemeanants, and misdemeanants together into one court and apply everything known about addiction and criminal misbehavior to the client. With counseling, frequent drug testing, and frequent appearances in court, clients exited the program as productive members of society. He stated that it was a well-known fact that without drug courts, the recidivism rate was 80 percent. Per year, Clark County had close to 5,000 graduates from drug court programs; Washoe County had around 1,000. Judge Breen mentioned that the Director of the Department of Corrections said in a recent article that the prison population had leveled because of the existence of drug courts in Nevada. He quoted Governor Guinn, who said in his State of the State Address, “This is the right thing to do,” and it was the efficient and economical thing to do. A.B. 29 sought to mandate an additional administrative assessment in misdemeanor cases that would be dedicated to fund specialty courts.
According to Judge Breen, the state and counties had funded drug courts in the past; specific amounts could be granted to individual specialty courts for a designated fiscal year. Traditional sources of funding had decreased just as specialty courts had begun to expand into new jurisdictions; one exception was the Clark County Drug Court, which received 40 percent of its funding through its DUI (driving while under the influence) school.
Judge Breen said that the drug court in Clark County, modeled after the one in Miami, Florida, had been the fourth drug court in the country. Funding sources were the DUI school and federal and state grants. Another drug court was in the Second Judicial District; operating funds came from the Legislature and county commissioners. Judge Blake began the first circuit rural drug court in the country. Judge Breen said Nevada was a fertile ground for the development of drug courts: the fourth drug court in the nation; the first family drug court; the first prison re-entry drug court between the Second Judicial District and Clark County; and the first rural drug court. Judge Lane had a drug court in Pahrump, and Mineral and Nye Counties were in the planning stages for their own. Judge Breen said he was raised in Esmeralda County and did not know if there were any drug addicts there. Judge Papez in White Pine County was in the process of collaborating with Judge Blake to establish a drug court. Judges Wagner and Memeo tried to get drug court in their districts but lacked money. Judge Breen related that Judge Memeo could get a drug court operational in two weeks.
Judge Breen proceeded to outline A.B. 29:
Section 1
Sections 2-6 Conformed section 1 amendments to existing statutes.
Judge Breen gave a details summary for A.B. 29:
Mr. Spitzer calculated the financial benefits from A.B. 29 by looking at the assessments that were collected in justice and municipal courts for fiscal year 2000-2001. A $15 misdemeanor fine would raise $5.1 million in Clark County; $930,000 in Washoe County; $480,000 in the rural drug court with Judge Blake; and $210,000 in the Fifth Judicial District with Judge Lane. The proposal would track existing statutes that allowed a $10 court facility fee to be imposed on a misdemeanor, and the money raised would stay in the jurisdiction that raised it. Funds would be raised by the population most likely to use a specialty court, and the amount raised would be based on criminal activity in each jurisdiction. A.B. 29 would encourage specialty courts to be established in all jurisdictions.
Chairman Anderson asked if Mr. Spitzer would provide a hard copy of his PowerPoint presentation to the Committee; Mr. Spitzer replied that he had a disc and would be able to print out a copy (Exhibit D).
Judge Breen said a statewide approach would provide stable funding for drug courts. He admitted that there was not statewide unanimity for drug courts; some felt it was inconvenient and the assessment was too high. The mechanism was already in place for the collection of assessments; he felt the passage of A.B. 29 would alleviate the uncertainty of funding for drug courts.
Assemblyman Carpenter asked Judge Breen what percentage of funds that had already been raised would cover the programs already in place; Judge Breen answered that the entire operation would be able to be financed.
Chairman Anderson clarified that to establish the figures used in this presentation, Judge Breen used the dollar amounts to fund all specialty courts in Washoe County and applied those figures to other counties in the state. The Eighth Judicial District in Clark County had a different funding source, so there might be some adjustments made to AB. 29 to achieve a stable funding source for the future.
Mr. Carpenter mentioned that Judge Memeo in Elko was very receptive to these types of new programs; he currently had a teen court program in operation.
Assemblyman Horne said that when he was at UNLV (University of Nevada, Las Vegas), he participated in a drug court externship program with Judge Lehman and found it to be excellent. He noticed that fees were assessed from those that came before the court and asked what percentage of those assessment fees went to specialty courts. Judge Breen answered that 20‑25 percent of costs were collected.
Chairman Anderson mentioned that he had had this same discussion several times in the past; Committee Policy Analyst Allison Combs had just reminded him of a memo from the 1997 Legislative Session that listed the allocation of funds. The funds were distributed as follows: of the 51 percent of the total amount that went to the Office of the Court Administrator, 18.5 percent stayed with the Administrator of the Court, 9 percent went to the development of uniform judicial records, 9 percent went for continuing judicial education, 60 percent went to the Nevada Supreme Court, and 3.5 percent paid for the services of retired judges. The remaining 49 percent was divided among the Central Repository for Records of Criminal History, peace officers standards and training courses, the Nevada Highway Patrol, and the Fund for Compensation of Victims of Crime. He would have the memo reproduced for the Committee (Exhibit E).
Assemblyman Mortenson asked Mr. Spitzer how much money a $15 assessment would raise per A.B. 29. Mr. Mortenson thought that Washoe County was half the size of Clark County; Judge Breen said it was more like 25 or 30 percent. Mr. Mortenson said he would continue his line of questioning later.
Assemblywoman Angle wondered about the success of collecting assessments because they did not seem to be a stable funding source. Judge Breen answered that he did not know the percentage of collections; Mr. Spitzer said he did not either. The Administrative Office of the Courts (AOC) would be the primary source of that information. Chairman Anderson said that Chief Justice Agosti and Mr. Ron Titus, Director and Administrative Officer of the Courts, were present in the audience; Mrs. Angle held her question for them.
Assemblyman Brown noted that in Section 1, subsection 1, of A.B. 29 it stated that in addition to an administrative assessment that might be imposed pursuant to NRS 176.059 and 176.0611, another assessment might be imposed for specialty courts. In NRS 176.059, a $15 assessment was mentioned; NRS 176.0611 allowed for an additional $10 assessment for construction of court facilities and acquisition of land. Mr. Brown wanted Mr. Spitzer to comment on NRS 176.0611 and to clarify if the $10 was being assessed from all courts; he was concerned about the ability of some people to pay. Mr. Spitzer answered that the $10 court facilities fee was optional by jurisdiction. The total amount of the initial assessment imposed was tied to the amount of the fine; as the fine went up, the assessment went up. The $10 plus the $15 assessments would be standard against each fine. Mr. Spitzer did not know the ability of each misdemeanant to pay, and that might affect the ability of the justice and municipal courts to collect. Judge Breen added that it was a small sum for a noble cause that took the money from people most likely to use a recovery program and spend it directly on them.
Assemblyman Oceguera inquired if a client could not pay the assessment, could they perform community service. Judge Breen said no, the system was not set up that way. Mr. Spitzer disagreed; each individual defendant could apply to the court to review their financial situation, and fines and some aspects of assessments could be waived or converted to community service.
Chairman Anderson said that Committee members were concerned that municipal and justice courts collected assessments, while benefits were predominantly seen by the district courts and the state; judges had had the same concerns for some time. The Committee would work on A.B. 29 to make sure it did what Judge Breen proposed. He asked if Chief Justice Agosti and Mr. Ron Titus wanted to respond to the concerns of the Committee.
Deborah A. Agosti, Chief Justice, Supreme Court of Nevada, Carson City, Nevada, reminded the Committee of her budget presentation for the AOC where she discussed the volatility of assessments. After viewing the PowerPoint presentation, she noticed that the projection of funds were based upon fiscal year 2000-2001, and indicated that there was a significant decline of 15 percent in 2003 for the collection of administrative assessments. The statewide collection rates at the municipal and justice courts, both misdemeanant courts, were approximately 85 percent. As she understood it, the assessment proposed in A.B. 29 would apply to misdemeanors, where collection rates were historically better than at district courts. A.B. 29 would not apply to district courts where collection rates were poor, where a defendant was assessed a flat $25 fee. She did not know if the overall collection rate would decrease if more fees were included.
Chief Justice Agosti said she had incredible respect for Judge Breen; she had worked with him in the Second Judicial District. She advised him to exercise cautious optimism that this would be a stable source of funds. Administrative assessments were a relatively stable source, but with the declines being seen, it was not the most stable source of funding. She would hope for the declines to even out because so many entities were supported by the assessments. The entire budget for the AOC was financed through administrative assessments; half the budget of the Nevada Supreme Court came from administrative assessments as well.
Ron Titus, Director and State Court Administrator, Administrative Office of the Courts, Carson City, Nevada, said that the figures Chief Justice Agosti quoted were correct and that collection of assessments were down. The AOC had done a study to try to determine why they were down and one reason could be that the number of citations being written was down. There were fewer officers on the street; more were in security positions. A.B. 29 would provide a permanent source of funding, although that amount would fluctuate over the years and was dependant on the current economy.
Chairman Anderson asked if Mrs. Angle had her question answered. She replied in the affirmative and wondered what could be done about developing a more stable funding source for specialty courts. She said she still wanted a central collection agency.
Assembly Conklin asked Mr. Titus to give an average amount of a fine assessed by a court that the fees would be attached to; Mr. Titus replied that most fines were less than $100.
Chairman Anderson reminded the Committee that Chief Justice Agosti and Mr. Titus had not planned upon testifying; they were only called up to answer the question posed earlier by Mrs. Angle. Mr. Mortenson said that assessments, collections, and arrests were down, and he asked if the crime rate could be going down. Mr. Titus said that Public Safety collected statistics on actual crimes, and collections for assessments were up while the number of citations being written was down. Most citations were from traffic violations and it was his suspicion that there were fewer officers on the street. Mr. Titus said that 2-3 years ago deputy sheriffs in Washoe County wrote on average 4500 citations a month; that number was now down to 1500. Mr. Mortenson thought that the income from the assessments would be proportional to the amount of work that needed to be done, fewer citations meaning less work, and that funding would be proportional to the amount needed.
Chief Justice Agosti responded that the proposed administrative assessment augmentation applied to those cited into justice or municipal courts, primarily traffic offenses, battery, disturbing the peace, and misdemeanants. The proposal said money would be used to finance drug courts, which occurred primarily in the district court. There might not be a relationship between the caseloads of lower courts and drug courts. Drug court also occurred in family and rural drug courts and did not bear any relationship to the number of people answering to traffic citations in the justice and municipal courts.
Judge Daniel P. Ward, New River Township Justice Court, Fallon, Nevada, represented the Nevada Judges Association (NJA) as current president. He advised that the NJA was opposed to A.B. 29 as it was written; if common ground could be reached, they would consider a compromise.
Chairman Anderson said Judge Bunch, viewing via the Internet in Battle Mountain, was paying close attention to this bill. The NJA was not disappointed with the drug court; they did not appreciate being put into the position of collecting the assessments. Judge Ward agreed. As long as the NJA could see a positive impact on all judges, they would consider the bill.
Assemblyman Carpenter asked what the concerns the judges had. Judge Ward said collecting assessments was difficult; rural counties did not have the largest economic base, and if they collected the money, they wanted to be sure they knew where it was going. Mr. Carpenter said Judge Blake had an operating drug court, and Judge Memeo in Elko wanted to begin one, and that would really help since rural courts did the best job of collecting. In Winnemucca, the collection rate was 97 percent; in Wells, it was 92 percent. It seemed if drug court programs were operational, district judges would have first-hand knowledge of the benefits for their communities. Judge Ward answered that many concerns had to be addressed; Judges Blake, Huff, Estes, and he felt that any specialty court program that they could provide to help citizens, they would. The NJA wanted to be clear on the language of A.B. 29.
Mrs. Angle asked if Judge Ward was concerned only about the fees and funding, or other portions of the bill. Judge Ward said it was the amount and the distribution of the fees. With communication between rural court judges, the program would be able to move on.
Assemblyman Anderson said it would be fair to characterize A.B. 29 as a bill that was still being discovered. The economic ramifications for the various jurisdictions were still being compromised. If the drug court program was to remain operational in the state, the Legislature needed to find a meaningful way or process to fund it. With help from the budgeting proposals from the Governor and other funding mechanisms, the Legislature might also be able to help.
Assemblyman Sherer asked if Judge Ward had an example of wording that would address the concerns of the NJA. Judge Ward had seen some inadequate proposals about compromise. He was still working on gaining consensus or middle ground and felt additional negotiation was needed.
Chairman Anderson said that the bill would probably not make it to work session. Mr. Carpenter said according to A.B. 29, if the drug court program was already in place, there was no problem. If there were no program, money collected from administrative assessments went to the state. He asked if members of the NJA were concerned about the money going to the state; Judge Ward said yes. Chairman Anderson said the money reverted to the county general fund, not the state General Fund.
Judge Ward said that that was part of the problem with the NJA; they did not have a clear understanding of all the ramifications of A.B. 29. Mr. Carpenter read from Section 1, subsection 6(b), “If a specialty court program has not been established by a district court within the county in which the municipal court that collected the assessment is located, deposit the money received with the State Controller for credit to a special account in the state General Fund.” He could see why the NJA was worried. Perhaps if the members of the NJA approached their district courts to get drug courts operating, their fears would be alleviated. Mr. Carpenter understood that the NJA had no amendment; Judge Ward said he was correct. Chairman Anderson interjected that subsections 6(a) and 6(b) were similar; their only difference was that in 6(a), if a drug court program was already established, any remaining money in the special account after two years would revert to the county general fund, where in 6(b), if no program had been established, remaining money would revert to the state General Fund.
James J. Jackson, Nevada Attorneys for Criminal Justice (NACJ), Las Vegas, Nevada, said the NACJ supported drug and specialty courts 100 percent. Their overall concern with A.B. 29 was that administrative assessments would outstrip the cost of the actual fine. He said administrative fines could double the cost of a traffic ticket. If lower courts had to continue to support the senior courts, there was an imbalance. Mr. Jackson stated that the NACJ was opposed to A.B. 29 as it was written, but said there was room for discussion and compromise.
Robert S. Hadfield, Executive Director, Nevada Association of Counties, Carson City, Nevada, supported specialty court programs. He had seen the benefits to the residents of the community and believed very strongly that permanent funding was needed. Those involved all had minor differences in opinion, but shared the same goal.
Chairman Anderson said that the justice and municipal courts did the work and the benefit went to the district courts. The County Commissions had to provide funding for all courts. He worried that county courts were not getting the support they needed to make their system work. Chairman Anderson wondered if there was an advantage for counties to have the courts work together for relief to the county general fund. Mr. Hadfield said that cooperation was paramount to a well-functioning justice system in Nevada.
Madelyn Shipman, Deputy District Attorney, Civil Division, Washoe County District Attorney’s Office, Reno, Nevada, said Washoe County was in support of the concept and understood there had not been total agreement on the language in A.B. 29. She suggested that the relative stability of the concept supported by this bill was more stable than waiting until the last day of the legislative session to know whether or not money was available. Ms. Shipman explained Washoe County benefited from the specialty court program because it kept people out of the jail system and reduced the rate of recidivism.
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Las Vegas, Nevada, was aware of the fiscal concerns faced by the state. The drug court program was located in his office and employed a full time deputy district attorney and 2½ support people that worked on cases in district court; Clark County also had a drug court operating in the justice court. He agreed with the need to continue to have a revenue source.
Kami Dempsey, Government Relations Manager, Office of Administrative Services, City of Las Vegas, Las Vegas, Nevada, supported increasing the number of specialty courts and the need to take pressure off district courts. She had concerns; 85 percent of the administration of collecting the fees was done by municipal courts, which added more pressure to collect and distribute the money. Courts had to carry the burden of collection and saw no benefits. Additionally, if the money was not used within two years, Ms. Dempsey said the money could be reallocated to any department that was affected by the judicial system. Chairman Anderson said municipal courts were equally concerned.
James Hardesty, Chief Judge, Second Judicial District, Washoe County, Reno, Nevada, reminded the Committee that A.B. 29 was also about mental health courts. He said Judge Breen made a great effort to permit mental health courts to be supervised by the drug court. Most defendants in mental health courts were misdemeanants. Judge Hardesty added that Mr. Mortenson was accurate when he noticed that there was a direct relationship between defendants and funds being generated.
Chairman Anderson thanked both Judge Hardesty and Judge Breen for all their hard work to benefit Washoe County. Judge Hardesty thanked Chairman Anderson for his admiration and divulged that Judge Breen was currently supervising a mental health court without funding. Employees volunteered to assist 32 defendants, and assisted them in making an impressive impact on their lives. Chairman Anderson said if the Legislature was successful in getting permanent funding in place, the Eighth Judicial District in particular would have a huge benefit from specialty courts; one benefit would be the freeing up of emergency room space. Judge Hardesty reiterated that most of the defendants were misdemeanants, not district court defendants.
Chairman Anderson closed the hearing on A.B. 29 and recessed the Committee for five minutes. Upon reconvening, he asked the Committee to consider introduction of the following BDR.
ASSEMBLYWOMAN BUCKLEY MOVED FOR COMMITTEE INTRODUCTION OF BDR 14-430.
ASSEMBLYMAN MABEY SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Ohrenschall and Mr. Claborn were not present for the vote.)
Chairman Anderson reminded Committee members to turn in their bill draft requests soon, since the calendar was filling up. He opened the hearing on A.B. 14.
Assembly Bill 14: Makes various changes to penalty hearing when death penalty is sought and revises aggravating and mitigating circumstances for murder of first degree. (BDR 14-198)
As a member of the interim death penalty study, Chairman Anderson summarized the bill. A.B. 14 was based on three recommendations from that subcommittee. The first component sought to revise the order in which a death penalty sentencing hearing must proceed and to require the prosecutor to open the argument. The defense might then respond and the state would argue in rebuttal. The defense counsel would continue the argument. This proposal would allow for rebuttal by the defense.
The second component of A.B. 14 concerned aggravating circumstances. Fourteen aggravating circumstances for first-degree murder were defined in the Nevada Revised Statutes. The subcommittee had chosen to delete the aggravating circumstances it felt were most ambiguous, with the knowledge that the full issue would be before the entire Assembly Committee on Judiciary this session. A.B. 14 proposed to eliminate subsection 3 of NRS 200.033: “The murder was committed by a person who knowingly created a great risk of death to more than one person by means of a weapon, device, or course of action which would normally be hazardous to the lives of more than one person.” The third and final component concerned mitigating circumstances; the subcommittee voted to amend the list of mitigating circumstances to allow factors related to a defendant who suffered from mental illness or had a history of psychological disturbance. In addition, the bill required the court to list all other potential mitigating circumstances as part of the verdict form to aid the jury.
Philip J. Kohn, Special Public Defender, Office of the Special Public Defender, Clark County, Las Vegas, Nevada, said that Section 3 of A.B. 14 addressed a major gap in Nevada death penalty legislation, the order of closing argument (Exhibit F). In cases where the death penalty was sought, the penalty hearing must proceed in the following manner: the district attorney or counsel for the state would open the argument; the defendant or his counsel would respond; the district attorney or counsel for the state might argue a rebuttal; and the defendant or his counsel might conclude in surrebuttal. He said the proposed change was all about fairness. In any type of discourse there was a certain advantage to either going first or last. In death penalty legislation, the district attorney went first and last, and Mr. Kohn said that was an incredible advantage. If Nevada was going to have the ultimate penalty, the least the Legislature could do would be to make the process fair. Mr. Kohn said NRS 175.141, as now written, provided for the order of trial in a criminal matter. Paragraph 5 specified that the district attorney or attorney for the state must open and conclude the argument. At the trial stage, Mr. Kohn had no argument with that; the district attorney had the burden of proof and there were strict rules of evidence to consider. The district attorney had the complete burden of proof so they should be allowed to conclude the argument.
Mr. Kohn announced that the penalty phase of a death penalty trial was very different; the rules of evidence were relaxed. Most importantly, the burdens of proof were different. NRS 175.554 set forth when a verdict of death might be imposed. Subsection 3 provided: “The jury or panel of judges may impose death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.” Mr. Kohn explained that meant that unlike a trial, where the burden was completely on the state, in a death penalty trial the burden was on the defendant to show that once an aggravating circumstance existed, mitigation outweighed aggravation.
As a practical matter, an aggravator was proved within almost every death case trial. Mr. Kohn claimed the state had already proved beyond a reasonable doubt during trial that the aggravator existed. That was not true with the defense evidence. The mitigation evidence did not generally come in during the guilt phase; it came during the penalty phase. He said to avoid being eligible for the death penalty, the defendant in Nevada had a burden of proving that mitigation outweighed aggravation and should be given a rebuttal argument. Because the Legislature had not previously addressed this issue of final argument in the penalty phase, the courts had simply looked to NRS 175.141 and given the state two arguments.
Mr. Kohn said Section 3 defined the arguments and how they should be given. NRS 175.141 said the state must open and close the argument. This would allow the state to give two closing arguments; the term “rebuttal” was not used. Prosecutors might, and often did, give a very short, first closing argument and saved all of their most important arguments until after the defense had made their only argument. He said that gave prosecutors the chance to address issues in their final argument that the defense had never had a chance to discuss or that had not been previously raised. A.B. 14 would provide for the state to argue and then the defense. The state could then rebut, which meant that they could answer what the defense had raised. Then the defense could offer a surrebuttal, and only answer what the state had offered in rebuttal; neither side would be free to sandbag the other and bring up new issues. Mr. Kohn expressed that this was the common law approach; all debates were run this way. It was all about fairness. A.B. 14 would end the long appellate process. Most major jurisdictions allowed the defense to argue last: New York, Pennsylvania, Kentucky, Florida, California, and South Carolina were a few. There had been some question two years ago about whether A.B. 14 would conflict with another bill that allowed the victim to speak last; Mr. Kohn said there was no conflict. This bill addressed the argument of the lawyer, not the victim.
NRS 176.015 referred to a hearing where the court actually imposed the sentence rendered by the jury or three-judge panel. At that point, the victim, or their representative, would be allowed to speak last. Finally, for those who defended death penalty cases, the major pitch to a jury was that of mercy. Mr. Kohn wondered if Nevada wanted a criminal justice system where the state had the last word, and that word was to rebut mercy.
Chairman Anderson distributed a memo that outlined the statutory procedures regarding the required penalty hearing following a finding of guilty of first-degree murder (Exhibit G).
Assemblywoman Angle needed clarification about the process. She related anecdotes about the times she sat on two juries where the death penalty could have been brought against a defendant and was given to the jury as the final decision. The jury was given the aggravating circumstances; if the jury was also given the opportunity, Mrs. Angle asked Mr. Kohn when the argument would occur.
Mr. Kohn answered that there were two parts to a death penalty trial. The first was the actual trial to determine if first-degree murder had been committed. Then there was a short break before the penalty phase, where aggravators and mitigators were decided. At the end of that portion and before a verdict was rendered, the state argued why the death penalty was appropriate, the defense argued why it was not appropriate. The way the law was written now, the state would have the opportunity to give a second argument why a jury should find for the death penalty.
Assemblywoman Buckley read from Section 5, subsection 7, of A.B. 14, where it stated, “…suffers from a mental illness or has a history of psychological disturbance.” The term “mental illness” was fairly objective, but she thought the term “psychological disturbance” was too vague. She asked how would one distinguish between someone with mental problems, had been abused as a child, and someone who was just evil.
Mr. Kohn answered that he was not prepared to answer questions on mental illness, but mental illness was defined in the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition). For a diagnosis of psychological disturbance, one looked at the factors that went into creating the evilness she mentioned, factors such as sexual abuse. It could be horrific, or not as bad, but it still affected a person. Another thing he had found in clients were abandonment issues; the clients did not connect with others. Mr. Kohn felt the jury should know how a person came to be psychologically disturbed.
Ms. Buckley asked, in his opinion, if he would have the wording be psychological illness, psychologically disturbed, something organic, or something more objective. Mr. Kohn answered he would like the language to be more open. A United States Supreme Court case allowed them to put on just about anything and this law would reflect that. Often, a person had brain damage that was found through medical testing but that did not lead to a DSM‑IV diagnosis, and there was a lack of judgment or ability to correspond to normal behavior that was part of their makeup.
Assemblyman Brown had a question about psychological differences; Mr. Kohn said there were people in the audience in Las Vegas who could answer that question when they testified. Mr. Brown gave his personal opinion about the order of hearing stated in Section 3 of A.B. 14. He had served as a law clerk to two district court judges in Las Vegas, and he was not sure that the order made a difference. The jury understood the facts of the case as presented and were now in the penalty phase; it might not affect their debate and reasoning in determining a sentence. He wondered about Section 3, subsection 2, lines 38‑40, where mitigating circumstances would be specified in writing; he thought perhaps aggravating circumstances should be put in writing. Mr. Brown asked if aggravators were included in jury instructions issued in the guilt phase.
Mr. Kohn replied in the negative. The charges might be included, along with another charge like robbery or burglary, so the jury would be given the instructions on what the charge was and find for that count or not. But the jury did not learn about aggravators until the penalty phase. Aggravators alleged by the state were listed and given to the jury, and they must find if they did or did not exist. If they did not exist, that would be the end of the death discussion. According to case law, one had to list which mitigating factors a jury found, but the process had yet to be codified. Mr. Brown said that Mr. Kohn was just putting things on even footing; Mr. Kohn answered in the affirmative.
Assemblywoman Angle spoke of the two cases she mentioned earlier where she was a juror. In the first one, the defendant fired a shot that ricocheted off the ground and struck someone other than whom the bullet was intended for, and he was charged with a premeditated crime. When the jury came back with a verdict of not guilty of a premeditated crime worthy of the death penalty, that case was decided. In the second case, the defendant had committed three murders but was a paranoid schizophrenic, and the jury could not find that he had the mental ability to premeditate, so the death penalty could not be brought against him. Those facts came out during trial and the jury was not able to justify a penalty of death. She could cite cases where the verdict would have gone differently and the jury would not have brought about death if they had had that second argument.
Mr. Kohn asked Mrs. Angle if her jury got to the point where they found anyone guilty of first-degree murder. She replied in the affirmative in the second case. He had a case that went before a three-judge panel after the jury was split. He felt that the district attorney made an issue of a prior incident the defendant was involved in, even though it was not a violent crime. The jury was hung and did not come back with a penalty of death; the three-judge panel came back with that sentence. Mr. Kohn said if he could have had the final argument, it would have made a difference in the case. Cases that were clearly death or not would not be determined by who argued last, but in a close case, giving the district attorney the first and last word was a tremendous advantage.
Michael Pescetta, a defense attorney from Las Vegas, appeared on his own behalf, and not on behalf of the Office of the Federal Public Defender. He addressed Section 4, line 33, of A.B. 14 that would repeal the great risk of death aggravating factor. He said the interim subcommittee noticed the Nevada Supreme Court broadly defined the long list of aggravating factors in NRS 200.033. As a result, there had been practically no first-degree murder cases in which prosecutors could not, if it was charged aggressively, find some aggravating factor that they might show a jury. The great risk of death aggravator was a significant one because it had been applied by the Nevada Supreme Court to separate assaults at different places at different times for one defendant. In Gerald Carter Lane v. State in 1994, the Nevada Supreme Court affirmed a great risk of death aggravating factor as a result of two assaults that took place in different parts of Reno at two different times during one evening. That case had been pending until 1998, when the Court reversed its position and held that the aggravating factor did not apply. An aggravating factor that could produce diametrically opposite results, by the same court in the same case, was an aggravating factor that did not have sufficient specificity and content.
In his presentations to the subcommittee, Mr. Pescetta went over the list of aggravating factors in NRS 200.033 in some detail, and a number of them were either so broadly or vaguely defined, or had been so broadly defined by the Nevada Supreme Court, he believed that some reduction in both the list and clearness of the legislative intent of what the aggravating factors meant would be appropriate for this Committee to recommend and for the Legislature to adopt. The aggravating factor that the murder was committed at random and without apparent motive was adopted without any significant discussion on the original bill in 1977. That factor was found by the Nevada Supreme Court in 1994 to apply to a situation in which the defendant not only knew the victim and had a motive to kill the victim, but where the prosecution argued at the guilt phase of the trial. Such a broad application of an aggravating factor was reduced in the Geary case and recently in December 2002 in the Leslie case, where the Nevada Supreme Court reversed a line of cases that had begun to be interpreted in 1990. Mr. Pescetta believed that an aggravating factor that was written so broadly and could accommodate twelve of years’ worth of litigation to determine what it meant, was a problem and would continue to cause problems.
Mr. Pescetta said that another aggravating factor the subcommittee focused on was avoiding arrest, which had been interpreted by the Nevada Supreme Court as not merely being arrested, but had been applied to any situation in which a witness or potential witness might have been killed. The aggravating factor under sentence of imprisonment followed the previous capital murder statute, located in NRS 200.0331, and provided for a death sentence for a homicide by a life prisoner, but that aggravating factor had been interpreted to apply to anyone who was out on parole and still technically under a sentence of imprisonment. Mr. Pescetta wanted the Committee to review all the materials provided to the interim subcommittee; he would provide potential statutory language for this issue.
Assemblyman Geddes asked about Section 13, line 8, of A.B. 14, where it appeared wording was taken verbatim from the section Mr. Pescetta wanted to delete; did the interim subcommittee consider removing that portion, and if not, would he be supportive of the removal of that portion of the section. Mr. Pescetta said that issue did not come up during the interim subcommittee and he would support conforming the language in A.B. 14 by removing that part of that section if the Committee adopted the other provision to remove the great risk of death aggravator.
Mrs. Angle wanted Mr. Pescetta to describe the intent of the bills. Was she correct when she heard him say that there were laws with different intent when they were made than the way they were actually being interpreted. Mr. Pescetta answered in the affirmative. The difficulty in the statutory language in all the aggravating factors was not self-enforcing.
Mr. Pescetta said when the Legislature originally adopted some of the provisions it had an idea about the aggravator under sentence of imprisonment. The previous capital murder statute in Nevada had a specific provision for imposition of the death sentence on a life prisoner that committed a homicide in prison. To the extent evident from the legislative history in 1997, Mr. Pescetta said it appeared that was what “under sentence of imprisonment” meant. But it was not a static system; prosecutors would attempt to expand the ambit of these aggravating factors by charging them aggressively. The Nevada Supreme Court had accepted those expansive arguments far too frequently, in his opinion.
Mr. Pescetta said when this and other Committees considered the upcoming terrorism proposal, he thought provisions should be very clear when or if they adopted those provisions to define that the bills were about terrorism and not routine criminal activity.
Chairman Anderson wanted to make sure the Committee did not talk about another piece of legislation that was not before them. Mrs. Angle asked Mr. Pescetta about the original intent of the portion of A.B. 14 that the Committee was considering having removed; Chairman Anderson clarified what Mr. Pescetta believed to be the intent. Mr. Pescetta said that Section 4, subsection 3, which stated, “The murder was committed by a person who knowingly created a great risk of death to more than one person by means of a weapon, device or course of action which would normally be hazardous,” could involve the situations of shooting into a crowd or throwing a bomb, an identifiable act that, by nature, tended to endanger more than one person.
Since the adoption of this section, this Legislature had also adopted a multiple-murder aggravating factor. The problem with this particular section was that it had been allowed to expand into multiple acts in different places at different times, whereas the original intent was to focus on one act that was naturally hazardous to many people. Mrs. Angle asked if the bomb was thrown into a group and no one was killed, if the section was removed, there would be no death penalty consequence. Mr. Pescetta answered that if no one was killed, there would be no death penalty situation.
Chairman Anderson said that under existing law, if a bomb were thrown into a group and there were no fatalities, the district attorney could choose to pursue a death penalty, but the likelihood of getting the mitigating circumstances would not, in all probability, call for the death penalty. Mr. Pescetta reiterated that if nobody was killed, prosecutors could not seek the death penalty. If more than one person was killed, the multiple murder aggravating circumstance in NRS 200.033, subsection 2, would cover that. Although the death penalty might be off the table, even if five people were injured and no one was killed, those assaults with deadly weapon convictions and sentences could be run consecutively and amount to life without parole.
Assemblyman Geddes asked why the proposed language inSection 5, subsection 7, would be needed, and not be covered under current definitions in subsection 2, which stated, ”The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.” Mr. Pescetta said that Section 5, subsection 2, of A.B. 14 had been interpreted as focusing only on the mental state of the defendant at the time of the crime. If the defendant had a chronic psychological disturbance or mental illness but the crime was not committed under that particular influence at the time of the crime, that provision had been construed narrowly. All these factors could be considered as mitigating; the point of adding this language was to draw the attention of the jury to the statutory mitigating factor, and not simply another mitigating factor, to the relevance of mental illness of a defendant, or history of psychological or mental abuse that was necessarily relevant under United States Supreme Court precedent, but had been accorded a lower stature by not being included in this list.
Assemblyman Carpenter thought that Section 4, subsection 3, of A.B. 14 was put into the bill for a bomb threat or hijacked planes; if that subsection was removed, there was nothing listed in the mitigating factors that would cover those crimes. He felt that it was very important that that section be retained. Mr. Pescetta answered that Section 4, subsection 2, of NRS 200.033, would cover most situations, the multiple murder aggravating murder factor. The subcommittee had said that this was most problematic. He felt that others were equally problematic, particularly the aggravator at random and without motive; the subcommittee decided this Committee and the Legislature should review all aggravating factors.
JoNell Thomas, Nevada Attorneys for Criminal Justice, and the American Civil Liberties Union, Las Vegas, Nevada, appeared as a private attorney who practiced in criminal defense. For the interim subcommittee, she had prepared a detailed memorandum regarding issues of aggravating circumstances (Exhibit H). She said it was important to remember that the purpose of aggravating circumstances was to narrow the class of persons who had been convicted of a first-degree murder who were eligible for the death penalty, mandated by the United States Supreme Court. It was not an issue of whether a person convicted of first-degree murder had committed a heinous offense, whether they were a bad person, or whether they should be punished. This was about selecting the worst of the worst, narrowing to the very few persons who should be selected for the death penalty.
Ms. Thomas said the subcommittee heard evidence of racial and economic biases against defendants who received the death penalty. While the biases might not be intentional, they did not diminish the fact that people of color were sentenced to death at a highly disproportionate rate. Limiting aggravating circumstances and the discretion of the prosecution to seek death was critical in remedying the racial bias within the system. Ms. Thomas said there was a need to limit both the number of aggravating circumstances and their scope; the death penalty could now be sought in virtually every murder case. Ms. Thomas said she would like the Committee to remove the aggravator of “random and motiveless” from A.B. 14, and she urged them to remove the felony murder aggravator in Section 4.
Ron Cornell, President, Families of Murder Victims, Las Vegas, Nevada, spoke on his own behalf in opposition to A.B. 14. He commented that when the Committee looked at the aggravators and mitigators involved to consider the side of the families of the victims who must endure a lifelong sentence. When talking about an at random shooting, one could look at John Lee Malvo, the alleged Washington, D.C. sniper, or the shooting at Albertson’s by Zane Floyd, who wanted to see what it was like to kill somebody. He had suffered the loss of his son four years ago. Mr. Cornell opined that people who committed crimes at random were just as evil as a sniper. He wanted to strengthen, not weaken, the laws, and to be fair to the victims and not the defendant.
Daniel J. Greco, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office, represented the Washoe District Attorney’s Office and the Nevada District Attorney’s Association. He said Section 4 of A.B. 14 would delete the aggravator great risk of death to more than one person. He said the Committee had heard a lot of lawyers talk about that aggravator; he shared a real-life example where as a prosecutor, he used that aggravator in a case in which a rival gang member had upset the defendant. The following day, there was to be a prearranged “throw down,” an unarmed fight between two females, one from each gang. Mr. Greco said the defendant still felt “disrespected” from the day before and showed up with a sawed-off rifle concealed in a long trench coat. The women never fought, but while the two groups of rival gang members stood around, the defendant pulled out his rifle, pointed it at the crowd, and began to fire. He emptied the entire illegal magazine with 14 rounds. He killed a young man, who he shot three times, who was not a hard-core gang member. He shot a 16-year old in the back that was running away trying to alert others; the bullet severed his spinal cord and caused instant and permanent paralysis. A third man who was trying to run away was also shot.
Mr. Greco explained that was how, in real life, prosecutors used the aggravator that defense counsel was talking about a few moments ago. That aggravator had been challenged repeatedly in the Nevada Supreme Court, and the Court had held that the use of the great risk of death aggravator and the statute was appropriate. Many states throughout the country had that exact same aggravator, and the United States Supreme Court had never ruled that that aggravator was unconstitutional. Mr. Greco believed it worked, even in the rare situations like the one he just described, and should not be deleted from A.B. 14. He said Mr. Kohn mentioned closing arguments during the penalty phase, but Mr. Greco did not think he had made the issue of the burden of proof clear. The defense had absolutely zero burden of proof at a penalty phase hearing. The State of Nevada had to prove beyond a doubt the alleged aggravating circumstances; if a case did not get past that point, death was not an option, and the jury was instructed along those lines. Even if the state proved aggravators beyond a reasonable doubt, the jury had to find that the mitigators did not outweigh the aggravators. Even if they found both of those things, they had to decide what was fair and right and just. The jury was also instructed that it had the opportunity not to impose death in each and every case.
Chairman Anderson asked if Mr. Greco had had an opportunity to appear in front of the interim subcommittee; Mr. Greco answered that he had spoken at approximately four of the meetings. Chairman Anderson said that Nevada had not gone beyond what other states had to ask for execution; it would not be difficult using the current mitigators to find one that would allow for that.
Mr. Greco said that under current law, any mitigation evidence the defense wanted to present they presented; they were not limited to the first six mitigators, but under current subsection 7 of A.B. 14, which was called the catchall mitigator, the defense attorney was allowed, and always did, offer any mitigation evidence, including the type of mitigation evidence, which was included in this new statute. He said that it was unnecessary to add a mental illness mitigator because it was covered in the catchall, and in every trial, that evidence was allowed in routinely, whether or not the mental illness existed at the time of the murder or only manifested itself months or years later.
Assemblyman Horne asked if there would be a problem to allow the defendant the last word in the penalty phase. While everything Mr. Greco said might be true, Mr. Horne wondered if the defendant still presented his argument, how it would be harmful to the state to allow him the last word. Mr. Greco said that prosecutors had the burden of proof at the guilt phase, so they went first and last. Prosecutors also had the burden of proof at the penalty phase; the defense had zero burden at either phase. Under current law, prosecutors went first, the defense went next, and then the prosecutors had a rebuttal argument, which meant that they were supposed to rebut or respond to points raised by the defense attorney in their argument. In Washoe County, if that occurred, objections would be raised and sustained. Rebuttal meant rebuttal; attorneys were not supposed to sandbag the other side by holding back some of their argument because they got the last word. Mr. Greco would not want to get stuck with the burden of proof beyond a reasonable doubt and it would be terribly unfair, in his opinion, to not give prosecutors the last word when the other side had no burden at all. He said it was the same with the guilt phase.
Assemblyman Carpenter asked how courts currently identified mitigating circumstances, if not in writing. Mr. Greco answered that over the past few years, Washoe County listed mitigators in writing for capital cases. It was not required by statute yet, and he could not speak for the rest of the state. He had no problem with listing mitigators found by the jury; that would make it easier for an appellate court to review if they had a complete record.
Mrs. Angle again referred to her personal experience where the jury could not find the death penalty. That jury had brought forth life without the possibility of parole, rather than the death penalty. The jury was told that if the decision was brought forward, after ten years there would be a possibility of a parole hearing, so they assigned three consecutive life terms, which gave the defendant thirty years minimum, not life. She asked Mr. Greco to clarify truth in sentencing; was that possibility still there for jurors. Considering the victims of the crime, Mrs. Angle said the defendant should not be released if he had been sentenced for life; there was more finality with the death penalty.
Mr. Greco said that laws had changed several times since she participated in those cases. Now there were four choices in a first-degree murder case where the state sought death: death; life without the possibility of parole; life with the possibility of parole after a minimum of 20 years had been served, an option since 1995; and also new, a 50-year term with parole eligibility in 20 years. If there were any enhancements, those minimums would be doubled.
Chairman Anderson asked Kristin Erickson, who was seated in the audience, if she desired to speak on A.B. 14; she did not. Scott L. Coffee, Attorney, Office of the Public Defender, Clark County, Las Vegas, Nevada, and a member of the NACJ, said that to say the defense did not have the burden of convincing a jury of anything in a capital trial was to ignore the reality of a capital trial. If a defendant was accused and convicted of murder, a jury could be in an emotional frenzy, and families of victims were obviously upset. During a penalty phase, irrespective of the burden of proof, there was a burden on the defense; arguing last was only fair and it was the right thing to do when somebody was on trial for his or her life. In close cases, where the choice was between life without the possibility of parole and death, it was fair to give the defendant the last word. He said it had precedent in other states; it made sense, and it prevented the death penalty from being used in cases where prosecutors had stirred emotions into a frenzy. Concerning the aggravator “great risk or harm to more than one person,” Mr. Coffee stated that was covered by other aggravators found in other statutes. He did not want that aggravator used inappropriately; in Clark County, if a defendant used a gun to kill someone, he could technically fit under that aggravator. The aggravator did nothing to narrow the class of people that were eligible for the death penalty, even though it was stated in federal law.
Mrs. Angle asked about a gang aggravator being used to prosecute; would Mr. Coffee be able to show another aggravator that could be used to get the same result. Mr. Coffee said that in testimony from another speaker, they said the situation took place for no reason; if it took place for no reason, you could arguably say that it was random, to some extent, with respect to the persons who were killed. You could argue and charge a felony aggravator what was listed as 2(b) now, “a felony that involved the use of threat of violence to a person or another.” If they had been previously convicted in that subsection, that was a potential aggravator, so it could be prosecuted in other ways. A.B. 14 would not eliminate those situations, but would narrow the class.
Mrs. Angle wanted Mr. Coffee to name the other states where this provision had already taken place. He listed that the defense could have the last word in a penalty phase in New Jersey, Pennsylvania, California, Florida, and probably more states.
Assemblyman Brown did not find the language in A.B. 14 to be offensive or ambiguous and asked why Mr. Coffee said it had been used inappropriately and if he would like to see a revision made so it would be useful. Mr. Coffee would like to narrow the language for this specific provision of the death penalty statute. He did not know how that language would be created. He said the Committee could look at the Leslie case Mr. Pescetta mentioned earlier to see how the language was stretched and pulled to fit a variety of unintended situations. In a trial for robbery, a jury could come back with an aggravator of a random killing with no apparent motive; the motive could have been to keep witnesses from talking.
Assemblyman Carpenter said that this section had been appealed to the court many times and found it to be all right; he asked if any of those decisions mentioned how it could be defined more narrowly. Mr. Coffee did not know. He said that in the 2002 judicial session with the Leslie case, the Nevada Supreme Court started to take a harder look at language that pertained to the death penalty. The concurring opinion by Judge Maupin said that some aggravators might be overly broad.
Nancy Lemke, Attorney, Office of the Public Defender, Clark County, Las Vegas, Nevada, represented the Office of the Public Defender with respect to her comments on A.B. 14. She gave an example where she tried a death penalty case in which she had to defend a man whose case was reversed two times; on the second reversal, a federal district court judge struck as unconstitutionally broad a particular aggravator that was in the Nevada statutes. Consequently, that case was reversed and she tried it for a third time. That situation happened when aggravating circumstances were very broad in their scope. Ms. Lemke said it might not appear to be broad as it was written, but it could be interpreted that way. Part of the problem with the risk of harm to more than one-person aggravator was that the Nevada Supreme Court had interpreted it in such a broad fashion that the government had been able to charge cases as death penalty cases where the circumstances were not like the ones described by Mr. Greco. Ms. Lemke certainly appreciated his comments and could understand his concern, relative to being able to charge as a death case, but unfortunately those kinds of cases were not the only kind of cases in which prosecutors used this aggravator to seek the death penalty. The Nevada Supreme Court was upholding those cases, rendering this statute overly broad. She said eventually the decision might be struck by a federal court or by the United States Supreme Court, and it would cost an inordinate amount of money on all the retrials for all of the cases in which this particular aggravating circumstance was used. The United States Supreme Court did look at this aggravator in the Gregg decision, which upheld the death penalty sentencing scheme in the state of Georgia, and they said that it was not overly broad on its face, but, she quoted from the Gregg decision, “…it may be susceptible to overly broad interpretation.” That was one of the main concerns she had with this particular aggravator for the state of Nevada.
Chairman Anderson saw that there were no questions from the Committee and allowed Ms. Lemke to address a prior question regarding suggestion to language to modify this aggravating circumstance. She said other states used language that said “risk of harm to many people” instead of “risk of harm to more than one person.” Chairman Anderson said that the bill drafter would take that comment into consideration, and he closed the hearing on A.B. 14.
Chairman Anderson said that he had requested the following BDR be drafted so the Nevada Revised Statutes would be in order with the “M’Naghten Rule,” and he asked the Committee to consider its introduction.
ASSEMBLYWOMAN OHRENSCHALL MOVED FOR COMMITTEE INTRODUCTION OF BDR 14-131.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Buckley was not present for the vote.)
Chairman Anderson adjourned the meeting at 11:02 a.m.
RESPECTFULLY SUBMITTED:
Carrie Lee
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: