MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 24, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:30 a.m., on Thursday, April 24, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4406, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblywoman Sheila Leslie, Assembly District No. 27
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
Lora Nay, Committee Secretary
OTHERS PRESENT:
Phillip J. Kohn, Special Public Defender, Office of the Special Public Defender, Clark County
JoNell Thomas, Attorney
Michael Pescetta, Attorney
Nancy E. Hart, Lobbyist, Nevada Coalition Against the Death Penalty
Jan Gilbert, Lobbyist, Nevadans for Quality Health Care, Progressive Leadership Alliance of Nevada
Vicki LoSasso, State Co-Chair, Northern Region Chair, Nevada Women’s Lobby
Ron Cornell, President, Families of Murder Victims
Clark A. Peterson, Chief Deputy District Attorney, Office of the District Attorney, Clark County
Mark J. Nichols, Lobbyist, National Association of Social Workers – Nevada
W. Lawrence Williams, Ph.D., Associate Professor, Behavior Analysis, Director, University of Nevada, Reno
Richard Siegel, Ph.D., Lobbyist, American Civil Liberties Union of Nevada, Human Services Network
John H. Emerson, Lobbyist, Religious Alliance in Nevada, United Methodist Church, Nevada Sierra-District, California-Nevada Conference
David Ward, Chairman, Commission on Mental Health and Developmental Services, Department of Human Resources
Chairman Amodei:
A committee introduction has been requested for an exempt bill dealing with writs of prohibition, Bill Draft Request (BDR) 3-1340. (Later introduced as Senate Bill 494.) As it has been represented to us, a change is needed in Nevada Revised Statutes (NRS) 34.330 as the result of an initiative enacted a couple of years ago.
BILL DRAFT REQUEST 3-1340: Revises provisions governing issuance of writs of prohibition to conform to Nevada Constitution. (Later introduced as Senate Bill 494.)
I do not usually do this, but since it is about a six-line bill I will go ahead and read it. In NRS 34.330 it says, “The writ may be issued only by the Supreme Court.” The new language inserts, “or a district courtto an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application of the person beneficially interested.”
Section 2 is, “This act becomes effective upon passage and approval.” Essentially the proposed legislation adds a district court to the Supreme Court as among those courts which may issue a writ. Is there a motion for introduction?
Senator Care:
Why are we hearing this now with only 40 days to go in the session?
Chairman Amodei:
Well, because it is an exempt bill and it was brought to the majority leader’s attention approximately 2 weeks ago.
SENATOR MCGINNESS MOVED TO INTRODUCE BDR 3-1340.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NOLAN AND TITUS WERE ABSENT FOR THE VOTE)
*****
Chairman Amodei:
We will open the hearing on Assembly Bill (A.B.) 14.
ASSEMBLY BILL 14 (1st Reprint): Makes various changes to penalty hearing when death penalty is sought and revises mitigating circumstances for murder of first degree. (BDR 14-198)
Phillip J. Kohn, Special Public Defender, Office of the Special Public Defender, Clark County:
I will read my testimony into the record (Exhibit C).
Senator Care:
Would the jurors take information about mitigating circumstances with them in their deliberations? Is it much like a jury instruction?
Mr. Kohn:
They will take all the instructions.
Senator Care:
Are you going to want to raise a specific mitigating circumstance as to a specific defendant and it is not going to be the same instruction in every case?
Mr. Kohn:
No, they are very different. A part of this bill I am not speaking to does add one mitigator. Since every case is different, the defense could propose a jury instruction to the court saying, “Based on the evidence we have put forth in this case, these are the aggravators we are proposing to the jury.” Jury instructions call for any other evidence as based on United States Supreme Court cases. We invite the jury to find other mitigating circumstances which may not be statutory mitigators. A person may have brain damage, or may have been molested as a child, or may have been in foster care since they were 3 years old. These are some of the things that have come up in a couple of recent cases. These are items we respectfully submit. The jury is given a verdict form where they have room to list only the aggravators the State has alleged. In terms of mitigator, they can find anything they feel is a reason for a verdict less than death.
Senator Care:
So the jury instructions would say something about both the prosecutor and the defense will submit drafts. They can argue about what the jury is going to see. The court makes the determination but it is going to have to say something like defense contends in this case mental illness is a mitigating circumstance or factor. The jury has to conclude what is a mitigating factor. There is no finding of fact, which had to have been done in the penalty phase. Does it work this way?
Mr. Kohn:
Yes, and the jury is asked to list them on a jury verdict form. If they decide mitigation outweighs aggravation, the client is then no longer death eligible.
Senator Care:
Would it indicate if mental illness is a mitigating factor the jury may consider or must conclude? Is this how it would go?
Mr. Kohn:
It is not that specific. The jury does have a chance to list whatever mitigators they find, but they are individual decisions. Maybe only two jurors find mental illness as a mitigator they are going to consider so they write it down. We will never know how many of the 12 found something as a mitigating factor.
Senator Care:
So it just becomes a factor individual jurors may use in their deliberations?
Mr. Kohn:
In a jury’s balancing process, they are generally going to find the aggravator. The next question becomes does mitigation outweigh aggravation? If we can convince jurors mitigation outweighs aggravation, then the discussion of death is over and they will decide between the other three penalties: life without the possibility of parole, life with the possibility of parole, or term of years.
Assemblywoman Sheila Leslie, Assembly District No. 27:
I will read my testimony into the record (Exhibit D. Original is on file in the Research Library.). I have also brought Legislative Counsel Bureau Bulletin No. 03-5, Death Penalty and Related DNA Testing of January 2003 (Exhibit E. Original is on file in the Research Library.), and a related chart (Exhibit F).
Senator Wiener:
Thank you for your extraordinary remarks. You mentioned in your letter about an 8-hour continuing education course. Could you be more specific as to where it would be obtained and what kinds of things would be taught?
Assemblywoman Leslie:
There is some information in the study. We decided we really needed to leave it up to the Nevada Supreme Court and was something the judicial system needed to review. Our concern was since there are not many people practicing in the field, we want to encourage attorneys to look at this. It is not very well paid because most of the death row cases we have are public defender types of cases. In the study, there is more information about exactly what the concerns were. Any help this committee can give us to get a response from the Nevada Supreme Court on some of those issues would be helpful. I have not seen any response yet to the letter we sent asking them to look at several issues.
Senator Washington:
Three of the members of this committee have served on your interim study committee. We have also had the privilege of working on this issue with the previous chairman, so we have looked at this quite extensively and have wrestled with it on numerous occasions. Even though we may differ in our philosophy and our political aspirations concerning the death penalty, whether it is concerning the victims or the offender, I know we have looked at all aspects from the racial end, to deoxyribonucleic acid testing, and to the mental capacity of the felon. Whatever we deliberate on this issue I want to at least commend you for tackling the issue. In the study committee we have all been enlightened one way or another. It has either driven us deeper in our commitment to one side or the other, but as a whole, on both sides of the aisles in both the Senate and the Assembly, we have taken this issue very seriously. Whichever way we deliberate in the next couple of days on the death penalty, you should be commended and I appreciate the work you have done.
Assemblywoman Leslie:
Thank you Senator, and I appreciate your participation on the committee. I am very proud of our State for taking on this issue and we have some good recommendations. I know you will deliberate very seriously.
JoNell Thomas, Attorney:
I am appearing today as a member of the board of directors of the American Civil Liberties Union (ACLU) of Nevada, the Nevada Attorneys for Criminal Justice (NACJ), and as a private practitioner who has actively litigated death penalty cases for the last 5 years. I certainly concur in everything Mr. Kohn said and I will not repeat any thoughts. I simply would like to add my agreement with everything he said as far as the order of who should be permitted to argue last in a death penalty case.
I would like to address the aspect of this bill, which concerns the listing of mitigators as part of an official verdict of the court. Most of my work in capital litigation occurs on the appellate or post-conviction process. The listing of mitigators listed by the jurors is critical to having a fair and accurate review by the Nevada Supreme Court and the federal courts, if a case goes to those levels. Often these courts will find some kind of error in the penalty phase and in order to have an accurate assessment of the kind of impact the error had upon the proceedings it is necessary to have the list of mitigators.
While most district court judges now do what this bill is requesting as a matter of course, not all do. We are requesting this process be uniform and it be codified for the process to be fair throughout all of the courts.
Michael Pescetta, Attorney:
I am an attorney who practices in the area of death penalty cases and habeas corpus proceedings. I would like to state for the record I am here on my own behalf and as a member of the NACJ and not as a representative of the federal public defender.
This bill should be familiar to most members of the committee because it was passed out of this committee in a slightly different form in the last session. As has been previously noted, Senators McGinness, Washington, and Nolan were on the interim study committee. Assembly Bill 14 is one of the products of that committee. As Ms. Thomas indicated, section 3, subsection 2 provides for a listing of mitigating factors in the penalty phase of trial. As she said, this is the practice and it was indicated in the other body by Mr. Greco, representing the Washoe County district attorney, it was their practice in Washoe County. It is also the practice in Clark County, but there is no actual codification of this requirement in any form. When reviewing a capital case on appeal, once a death verdict has been returned, there are frequently issues about whether the jury or the three-judge panel considered the mitigating evidence presented to them. This bill will clean up the system so we do have an indication about any and all mitigating factors considered by the jury.
Section 4 of the bill adds to the list of statutory mitigating factors a defendant suffers from mental illness as specified by NRS 200.035. This was a proposal by the interim subcommittee because of the important role mental illness frequently plays in capital cases. The subcommittee thought it was appropriate to elevate the stature of this particular mitigating factor that of a statutory mitigating factor.
The somewhat more contentious portion of A.B. 14 is the order of argument. Mr. Kohn has already discussed some of the issues relating to burdens of proof. It is worth my reminding committee members the only statutory burden of proof on the prosecution in the penalty phase is imposed by NRS 175.554, subsection 4, which is the findings of aggravating factors beyond a reasonable doubt. There has been no imposition of a burden of proof on the prosecution with respect to whether aggravation outweighs mitigation. The way the statute is currently written, it does convey to the jury the impression the defendant does appear to have the burden of proof in order to avoid death eligibility by finding mitigation outweighs aggravation.
There is no burden of proof on the State. I can cite you the case from Nevada case law, it is McKenna v. State [101 Nevada 338, 339 (1985)], which found the State did not have the burden of showing, beyond a reasonable doubt or by any other specified burden, the defendant should be sentenced to death. The case cited in Mr. Peterson’s materials is a federal case, United States v. Edelin, [134 F.Supp.2d 59 (2001)]. Under the federal law and statutes, the government does have the burden of proof to show to the jury the propriety of imposing the death sentence.
Under Nevada law we are talking about a different system, where there has never been either a jury instruction or a Nevada Supreme Court case or any other statutory basis for saying the prosecution has the burden of proof for convincing a jury the death sentence should be imposed. It is a little misleading to say the prosecution has the burden of proof in a death penalty hearing. Prosecution has the burden of proof only with respect to proving the aggravating factors. With respect to all of the other issues before the jury or the three-judge panel in the sentencing hearing, there is no Nevada law saying the prosecution has the burden of proof.
Chairman Amodei:
When you refer to burdens in the federal scheme, is it just the burden of going forward or is it proof beyond a reasonable doubt? What is the level of the burden in federal court?
Mr. Pescetta:
The burden of proof by a preponderance of evidence is on the government. I can provide the statute to the committee. I would hate to say this definitively. I can submit a copy of the statute and our analysis of it.
Senator Care:
Section 4 adds mental illness as a mitigating factor. Would mental illness be a defense or is it a defense and one which can be used as a mitigating circumstance?
Mr. Pescetta:
It can be used as a defense if a person is so sufficiently mentally ill he or she is insane or sufficiently mentally ill to be incompetent to be tried. If found incompetent in the pretrial proceeding, he or she cannot be tried. If someone is found so mentally ill they are insane, then they cannot be convicted at all. However, if you are not mentally ill to that level, under United States Supreme Court authority, the jury has to be allowed to consider whether mental illness operates as a mitigating factor and the ultimate punishment of death should not be imposed. There are various levels of mental illness. This simply makes a statutory mitigating factor with respect to the penalty. Mental illness can be considered, in any event, as an “other” mitigating factor in the catchall section; but it was thought since mental illness does affect an individual very severely, it should be put in the statutory mitigating factors.
Senator Care:
At some point are you going to have an expert or somebody testify as to the defendant’s mental illness? Obviously 12 laymen are not going to make that determination. There has to be something in front of them for them to deliberate the issue.
Mr. Pescetta:
There will have to be testimony on which any mitigating factor could be based. This is not something where a lawyer could just get up in the penalty phase and say their client is mentally ill and have no evidence. Any statutory mitigating factors are generally given to the jury only if there is some evidence presented in the penalty phase and supporting a finding by one or more of the jurors that a mitigating factor exists.
Senator Care:
On the issue of surrebuttal, is there anything to indicate Mr. Kohn framed the issue in the context of fairness? In those jurisdictions where the defense argues last, is there anything to indicate there has been a reduction in the imposition of the death penalty? Is there any way to make a connection?
Mr. Pescetta:
To my knowledge, there has been no such study to indicate one way or the other. Mr. Kohn indicated the defense argues last in California. California imposes death sentences pretty routinely, but there is no way to quantify what the quantitative effect of such a change would be.
Senator Care:
Can you give us an idea of the cases where it might make a difference?
Mr. Pescetta:
Mr. Kohn probably knows more of those cases since he is a practitioner at trial. Globally, it is the marginal cases where a decision could go either way. As a question of fairness where the defendant’s life is on the line, his or her representatives should be allowed to make the last plea to the sentence or to save the defendant’s life. In a case such as the Ann Floyd case where the evidence seems pretty overwhelming, this is probably not going to make any difference ultimately; but we do not really know. We have observed prosecutors who do exploit the ability to argue last.
Senator McGinness:
You mentioned other jurisdictions that have changed the order of argument. How many other states have changed the order?
Mr. Kohn:
I read the document provided by Mr. Peterson today where he says 34 out of 38. My count was there were 14 states allowing the defense to go last, not necessarily in the way we do it. In South Carolina there are only two arguments. The prosecution goes first and the defense goes second. Not all states have the rebuttal and surrebuttal definition we are proposing in this legislation, which is a more fair way to go. I do not think 34 out of 38 is correct and will have to do research. There are also a number of states, maybe 10 states, that leave to the court the decision as to the order of argument.
To answer Senator Care’s last question about a close case, in 1995 I did a case, Antoine Williams, the jury hung up on and it went to three-judge panel and death was found. The jury was not able to come to result. In this very close case, Antoine Williams had no evidence of violence in his past, but he had stolen his girlfriend’s car in Chicago. A police officer came from Chicago to testify. Without any police reports, he described a chase happening down a street in Chicago. During rebuttal the government made a great issue of how dangerous this man was because he got involved in a car chase with police and he very well could have killed any number of people. This was the reason for a verdict of death. There never was an opportunity for me to answer and since the case did in fact hang up, I do believe this is an example of how a close case would be changed by the defense having the chance to give the jury one last discussion. It will not change most cases, but the close case, the case that tends to be reversed later, the kind of case that costs us a great deal of money in litigation down the line, is the case affected by this legislation and why I implore its passage.
Senator Washington:
One of the arguments in the document opposing the bill states only four jurisdictions have death penalty provisions similar to the one proposed and instead asserts a vast majority of the states conduct their penalty phase as Nevada currently does. In 1999, Minnesota amended its death penalty statute to specifically provide for the state arguing last in death penalty hearings. This is their statement. What is you rebuttal? They are indicating 34 jurisdictions out of 38 currently have the prosecution going last.
Mr. Kohn:
I was concerned when I saw this information not long before you did. Two years ago I had law clerks go through each legislation and our discovery was very different. The way it is worded, 34 states do not have legislation like ours. What I recall is a number of states only give two arguments with defense being the last argument.
No, it is not the same legislation as ours, but it is the same process or the same approach. I do not believe in 34 of the 38 states allowing the execution of people the state gets to argue last. We will all have to do research and send supporting documents to this committee.
I happen to think the idea of argument, argument, rebuttal, and surrebuttal limiting lawyers’ ability of answering the last argument is the fairest approach. If, for judicial economy, everyone wants to go simply to two arguments, they go first and we go second, I am fine with that. This proposal is the fairest way.
Senator Washington:
This document also says the State or the prosecution has the burden of proof. Allowing the defense to argue last would be unfair and would be a disadvantage to the prosecution according to what the Nevada Supreme Court says, it is Witter v. State [112 Nevada 908 (1996)]. Is it a disadvantage to the prosecution?
Mr. Kohn:
William Witter is my case. I did argue we should argue last. I had practiced in California for most of my career and was used to proceeding under their rules. When I argued this case in 1995, what I did not completely understand was the change in burdens. I did not understand I had the duty to show mitigation outweighs aggravation. It was not as codified and the Nevada Supreme Court cases were not as clear as they are now. Last year, the Vernal Evans case gave us instructions like the examples I will leave for you, specifically explaining what the two burdens are.
When I worked in the public defender’s office, and now as a special public defender, I instructed all attorneys that we will argue and will simply show this idea of burdens is going to go to the Supreme Court. They point out the Nevada Supreme Court never required this before. Two years ago when I testified before this committee about mental retardation, the United States Supreme Court had never decided the mentally retarded cannot be executed. When we came to this body 2 years ago about the three-judge panel, even though à prendre had been decided by the United States Supreme Court, and Ring v. Arizona had not. The opposition said to not worry because this is never going to happen. Now we have to relitigate Donte Johnson and goodness knows how many other cases because the United States Supreme Court has reversed itself.
Even though Minnesota may well have gone to the prosecution arguing last, I believe the trend will be for the defense to have the right to argue last, such as in New York when they created their death penalty legislation a few years ago. Does this trend give prosecution a disadvantage? It certainly takes away the incredible advantage they have right now. I testified the opportunity to have the first word and last word is a tremendous advantage. Does it give them a disadvantage? No, I do not think it does, but it does take away the tremendous advantage they have and do use at this point.
Senator Nolan:
We spent quite a bit of time in the last several years defining what is “mentally retarded.” With respect to mental illness, how will we define mental illness?
Mr. Pescetta:
The intent, and certainly this was the discussion in the other body, is something that qualifies as a ”DSM-IV diagnosis” from the Diagnostic and Statistical Manual of Mental Disorders, the 4th Edition Revised, which is the current edition. There must be expert testimony the defendant does suffer from an identifiable qualifying mental illness if there is evidence to support this testimony. In the penalty phase it is proposed it is appropriate for the jurors to be allowed to find mental illness as a statutory aggravator. Mental illness does not mean some layperson saying someone acts “funny,” and it is something where expert diagnosis and testimony is needed in order to present to the jury this particular statutory mitigating circumstance.
Senator Nolan:
Is mental illness any type of proximal cause to the person’s behavior or did it in some way disable their functional mental capacity at the time they committed the capital offense? We spent so much time in creating the definition for mental retardation, I am going to be comfortable for this same discussion on mental illness as to putting some limitations on how we statutorily define it.
Mr. Pescetta:
The interim subcommittee included both mental illness and a history of psychological disturbances in its version. Defining psychological disturbances was a problem for the Assembly Committee on Judiciary which removed it and settled on mental illness, which implied a diagnosis of an identifiable mental illness. We do not win any points with a jury in terms of our credibility by trying to get a mitigating factor for mental illness if we have no evidence suggesting it exists.
Senator Titus:
As we talk about imposing the death penalty or not, it seems the impression, without being said, is the defendant either gets the death penalty or if people are convinced she or he is okay, then the defendant will get to walk away free. Will you tell us what a defendant would get, if he did not get the death penalty?
Mr. Pescetta:
The range of punishments currently provided by statute is death, life imprisonment without possibility of parole, life with parole, or a term of years, which currently is 50. Life imprisonment without possibility of parole is now real life without, since there is now a statutory and constitutional prohibition on reducing a life without sentence to a life sentence allowing for parole. If a jury is poised between a death sentence and something else, typically, not universally, but typically, jurors are poised between a death sentence and imposing a sentence of life without possibility of parole.
Senator Titus:
Exactly. We need to keep this in mind as we talk about whether you are going to do the death penalty or not. It is another very severe option.
Mr. Pescetta:
As both a policy and as a judgment of fairness, do we want more death sentences or do we want cases to be resolved with a sentence of life without possibility of parole, which is ultimately less expensive? The marginal cases have a very much higher incidence of reversal. They have a relatively small number of aggravators and a relatively large number of mitigating factors where any error in the trial or penalty phase is more likely to result in a reversal or a retrial. At any rate, there is a consumption of a good deal of resources in litigating the case as a death case. There is something to be said, as you indicated, Senator, there are cases where a jury could be persuaded that a sentence of life without possibility of parole will be adequate. There is something to be said in terms of fairness for allowing the defendant to make such a plea.
Senator Titus:
In addition to the legal and economic arguments, is it not just more humane for a person who is pleading for her or his life to get the last word? What is more extreme?
Mr. Pescetta:
I certainly think so.
Senator Care:
What happens currently? If we do what is requested, would the jury be instructed that defense comments would be confined to the comments raised by prosecution on rebuttal? To complicate matters more, let me ask if you have ever objected during rebuttal?
Mr. Kohn:
Yes, I do object when I believe there is misconduct, but it puts me in the position of looking like I am trying to obstruct something. If I do not object and there is prosecutorial misconduct, I will lose that issue for my client. I am put in a terrible quandary, do I object and look like a jerk in front of the jury or do I reserve that right for my client upon appeal? Prosecutorial misconduct and ineffectiveness of counsel are the two major reasons why death cases get reversed. If I do not object, I have really blown it for my client. These are split‑second decisions and they often lead to a great deal of litigation later. Mr. Pescetta will have to assume and argue I was ineffective by not raising them, even though I know I only had such a very quick time and assuming I recognized them. Sometimes the misconduct is so well masked it is not observed. I have had this problem before. A district attorney sat in the witness box and talked about witnesses and, in a sense, he was vouching for them, but the attorneys did not pick this up quick enough.
In the last instructions before a jury hears arguments, they are not exactly told the order and count of arguments. I have objected numerous times in Nevada about prosecutors who have raised arguments in the second argument that were not raised either by myself or in their first arguments. Their response is our argument does not have to be rebuttal. The statute I cited to you earlier saying the State must open and close arguments just gives the prosecution two arguments. It does not require them to rebut what I say. That is why this law was created with fairness in mind for both the defense and the prosecution. There are two arguments and they are fair game. The prosecution’s rebuttal can only respond to what the defense attorneys have said in theirs or what the prosecution brought up earlier. Our surrebuttal may only answer what the prosecutors brought up in their rebuttal. If either side acts outside of this, I am sure the other side will object and the court will stop them. If an attorney is going to be dishonest, there is almost nothing we can do, but I do not believe attorneys are dishonest. The prosecution is not precluded from bringing up new arguments like they did in the Williams case. When I objected, their response was, this is not rebuttal, we get two arguments. This is why this proposed law was prepared the way it was.
Senator McGinness:
If we allow the defense to go last and there is misconduct on the part of the defense, are we just swapping the situation? If the prosecutors go last you have the option to appeal. If the defense goes last and they do something that could be termed as misconduct, there is no option for the prosecution, am I correct?
Mr. Kohn:
I agree. The prosecution cannot appeal, but the court will cut off an attorney who acts improperly and who can and should be taken to the bar. Nobody should be allowed to commit misconduct. The rules are crafted so an attorney can only answer what was put before them. We think it is better if we make an error, to err on the side of life and err on the side of mercy. Defendants are not getting a freebie. They are more likely to be getting life without parole and defendants are going to die in prison. Do we want to spend millions litigating this or do we want to accept life without?
Senator Washington:
Can we once more go back to section 4, dealing with the mitigating circumstances? We added a new one: the defendant suffers from mental illness. Then No. 8 indicates any other mitigating circumstances. Would mental illness not fall under other mitigating circumstances?
Mr. Kohn:
Yes, it does, but so do all of the mitigating circumstances. This is probably the most important evidence we put in front of the jury. Mr. Pescetta talked about the DSM-IV diagnoses. In the last case we did where the defendant had frontal lobe brain damage, we sent him to a radiologist and then to a neurologist who did a position emission tomography scan. They could prove beyond any doubt there was brain damage. Then a neurologist and a psychologist testified to explain why frontal lobe damage is important and how it impacts decision making. While it does not justify a homicide, it does explain some factors. In our case, the person was hit by a baseball bat. This type of information is so significant it should have the dignity of having its own mitigating circumstance.
Senator Washington:
Could you explain the difference between the second mitigating circumstance under which murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, specifically mental?
Mr. Kohn:
Mitigation No. 2 generally refers to something happening right then. For us to put this before a jury, we almost need a schizophrenic episode or something in the middle of some type of medical or mental breakdown happening concurrent with the crime. This is rare and very difficult for us to show. What occurs more frequently is the example I just gave. They have brain damage or there was maybe some posttraumatic stress disorder based on their having been molested. Something happened in their backgrounds affecting their makeup, what they are, and affecting their ability to made decisions. We may not be able to prove at the time of the homicide they were in the throes of an episode, but we will show this is their life experience and this is what makes them the people they are. The jury should look at this information in determining their sentences.
Senator Nolan:
Could you see somebody arguing adult attention deficit disorder (ADD) or maybe somebody who is on the common prescription drug Adderall for a mental illness?
Mr. Kohn:
Yes, I can. The U.S. Supreme Court has ruled a jury may consider anything causing a defendant to receive a sentence less than death. A problem like you are describing is exactly the situation why we would like the mitigator No.7. They may have had ADD all their life but there is no way of knowing at the time of the crime, it was part of what caused them to make the horrible decision they made. It is very difficult for us to isolate such factors, especially if they have not received the type of medical and psychological help they needed. I am a public defender, so many of our clients are poor and have not received help. They may well have been diagnosed in the third grade or the second grade when they were acting out and making some teacher’s life miserable, but they did not get a lot of follow-up help from that time on, so we may not be able to describe how the time around the homicide was affected by ADD. Under this new mitigator No. 7, if we can show this is something the jury can consider and determine if, in their heart of hearts, they believe the defendant’s actions were in some way affected by mental illness.
Mr. Pescetta:
You also have to recognize the weight given to these aggravating factors is entirely up to the jury’s discretion. The jury can find the existence of a mental illness and still say they do not think it is weighty enough to change their minds. This is the same with all of the mitigating circumstances. For instance, we have a mitigating circumstance for the youthfulness of the defendant. Very frequently prosecutors argue the defendant is chronologically young, but more advanced than other people his age. You can have the same argument in reverse. If mental illness is sufficiently serious, it deserves the dignity of a statutory aggravating mitigating factor rather that the catchall “other.” What the jury decides to do with this information is entirely within its discretion.
Chairman Amodei:
It is my intention to leave the record open on the bill we hear today and the bills we hear tomorrow until the end of the month, April 30, for the submission of anything to supplement the record in writing. It is also my intention to allow members of the committee who do not get a chance to ask questions or who have conversations with people on this matter to supplement our record in writing or orally, based on any questions you may have that do not occur during the hearings, anything you think is appropriate for the committee to consider up through May 2. We will try to make sure we give ample opportunity for everybody to have the discussions they feel are appropriate whether it is on or off the record and provide whatever they need for our record.
Nancy E. Hart, Lobbyist, Nevada Coalition Against the Death Penalty:
I am president of the Nevada Coalition Against the Death Penalty and am also representing Amnesty International in Nevada. I am a deputy attorney general, but I am not here in that capacity. I am here as a private citizen. The Coalition is a broad-based statewide group working to end the death penalty in Nevada.
My first remarks concern the study leading to this bill and other bills coming before you. The Coalition, and all of us who are a part of this effort, commend the subcommittee chairperson, Assemblywoman Leslie, all of the members of subcommittee, and the staff who supported it. They were operating with fairly limited resources and they did an excellent job of looking at a wide range of issues and hearing testimony from national and local experts on a wide variety of complicated legal issues and difficult philosophical questions, and then giving careful consideration to all of the testimony and reaching agreement on a number of needed changes.
As you heard from Assemblywoman Leslie this morning, this study was done in the context of other studies and other inquiries going on both nationally and internationally around the death penalty. In particular, there have been studies in the last year and a half in Illinois, Connecticut, Pennsylvania, and Maryland, just to name a few. They all have very similar findings, consistent with some of the findings in the Nevada study. It is no longer a question of whether there are problems. The task is how to go about fixing them. Members of the Coalition believe Nevada’s death penalty is too flawed to fix and should be abolished. No matter what your position is on the death penalty, we know everyone agrees that if we are going to have a death penalty, it must be fair and it must be accurate. This is what A.B. 14 and all of the five bills from the subcommittee are about. They are promoting fairness in the process and accuracy in Nevada’s death penalty. They are all consistent with recommendations made by several national bipartisan groups. As you heard Assemblywoman Leslie say, there was quite a cross section of opinions among the committee members about the issue of the death penalty. To reach agreement and, in many instances, consensus on these measures represents a lot of common agreement about this problem. We support all of the measures coming before you. We particularly support A.B. 14, and also A.B. 15 you will be hearing next. The other bill to be heard tomorrow is A.B. 17, and then the bill that has not yet come over from the Assembly. They have all had strong support in the Assembly and we think it demonstrates not only a growing concern among members of the public but also among the legislators.
Since listening to the questions about the bill, I would like to say a couple of things in particular about A.B. 14. First, Senator McGinness asked about whether the statistic of 34 out of 38 states had this particular or did not have this particular provision. My understanding is it is very difficult to compare state by state because every state has different statutory procedures and rules about who does the arguing and when. As you heard Mr. Kohn say, in some states there are judges deciding the order. Each state has different statutes about the burden needed to be established. It is really deceptive to say Nevada is in this group and there are many on the other side. I would urge you to look at the unique aspects of Nevada’s law and Nevada’s provisions and make a policy decision about how it should be.
A second issue was whether or not there was a disadvantage to the prosecution. I have heard Mr. Peterson talk before and I am sure he will give a very eloquent presentation, but I would respectfully disagree. There is a meaningful disadvantage and it was already stated. As Senator Titus pointed out, it is almost as if it sounds like the prosecution has a vested interest in the death penalty and they lose the advantage of getting a death penalty. We are not talking about a conviction, as there already has been a conviction. To the extent there is any kind of taking away of an advantage they have, I would say it is leveling the playing field and it is not at all taking away a penalty in a case. There will be a penalty by the close of the proceedings. We strongly support this bill and all of the other bills you will be hearing about.
Jan Gilbert, Lobbyist, Nevadans for Quality Health Care, Progressive Leadership Alliance of Nevada:
The Progressive Leadership Alliance of Nevada (PLAN) is a broad-based statewide coalition with 43 member groups. Before the Legislative Session we got together and shared our issues. Every group put its own issues on the table. We then targeted the issues we were going to address this session. This group of bills is one of our top priorities. We have attended many of the hearings and appreciate the Senators here today who were represented on the interim committee. It was a very hard-working committee and we feel it did an excellent job. We would urge you to support all of these bills as our groups considered them important enough to make them one of our top priorities. I hope you will pass all of the bills coming before you, including the juvenile bill, which our groups decided to also include in our package, even though the subcommittee did not.
Senator Titus:
Would you just remind this committee what are some of the big groups and some of the organizations making up that 43?
Ms. Gilbert:
Our groups range from very large groups like the American Federation of Labor‑Congress of Industrial Organizations (AFL-CIO). Culinary is a member on its own even though it is a part of the AFL-CIO. The teacher’s union, Nevada Women’s Lobby, many of the smaller health advocates, ACLU, social workers, the National Association of Social Workers who is present in Las Vegas, and the Nevada Nurses Association.
When we try to target issues, it is a very difficult process because people have their own agendas. I run the meeting, which is very difficult because at the end I ask if everyone is happy. We try to target areas where we feel there is not the strength and there is not much power. I am going to be here to talk about the ex-felon bill because there is no group, per se, that represents those people. We try to pick those areas where we feel our efforts can make a difference.
Vicki LoSasso, Nevada Women’s Lobby:
I want to go on record to say Nevada’s Women’s Lobby, a coalition of groups and individual members who care about issues affecting families in the State of Nevada, has taken a position in favor of the recommendations from the interim committee. You have our resolution (Exhibit G) in front of you. We think the committee did a great deal of very hard work and came out with some very important decisions making imposition of the death penalty more fair in this State. We also want to go on record as saying we are in favor of the juvenile bill, A.B. 118.
Ron Cornell, President, Families of Murder Victims:
I am the current and acting president of Families of Murder Victims, in southern Nevada in the Clark County area. I would like to go on record stating our group was formed in 1984 and we have had come through our doors family members of over 625 murdered victims. I am not here actually representing Families of Murder Victims; I am here to speak on my own behalf.
My son Joey was murdered July 16, 1998. As a victim, I am here to speak in regard to fairness, as was discussed. I would like to see fairness through the prosecution phases. I feel it is totally and completely unfair the prosecution has a burden of proof, while the defense can throw out several items. Senator Titus mentioned the fact there are circumstances other than the death penalty. I would like to remind the committee, even if they do get life without, it does not necessarily mean life without because there is an appeal process that continues to go on. Family members of the victims continue to have to go through the appeal process and/or retrials. Jury misconduct or a misstatement or something along those lines does not change the fact of guilt. In regard to the Donte Johnson thing, the family now has to go back through a whole new sentencing phase. Even though a defendant gets life without the possibility of parole, it does not necessarily mean the person may or may not get out of jail. There is still that possibility through the appeal process.
I am in favor of A.B. 15, along with members of my group. We do not believe the mentally retarded should be put to death. We have had numerous discussions through my organizations about this and we are split. There is a majority of us who are in support of the death penalty in capital cases. All I am asking at this point is to please remember the victims, because they are the ones who have paid the ultimate price. Our loved ones are no longer here.
Senator Titus:
I do not think we ever forget the victim. I worked with your organization when I put in the amendment to have victim’s rights included in the Nevada Constitution. We were out in front in doing so and since that time it has been done in a lot of other states and has been looked at nationally. If there is any attempt to make the death penalty fair in Nevada, you should not see this as a way of ignoring the victim. Certainly, I think everybody here is very concerned about the victims. This is just a question of making the other side of the process fair and is not in any way taking away from what victims have suffered.
Chairman Amodei:
Mr. Cornell, your testimony will also be noted for purposes of A.B. 15.
Mr. Peterson, the information received from you today talks about some proposed and potential changes in language. We would like you to focus your testimony on A.B. 15 regarding these proposed language changes. I am unaware of anybody who is going to testify in opposition to the general tenor of A.B. 15, so when we do get to A.B. 15, could remarks be targeted at those proposed amendments? This might be helpful in terms of focusing the committee’s deliberations at a later time.
Clark A. Peterson, Chief Deputy District Attorney, Office of the District Attorney, Clark County:
I am the capital case coordinator for the Clark County district attorney’s office. I am here this morning and I bring greetings from David Roger, the district attorney in Clark County. He asked me to personally thank the members of the committee and tell you he understands the important and difficult task that lies ahead in addressing this important issue.
I had to sign in this morning. I had to select whether I was for or against. I will be testifying on a number of the bills both today, tomorrow, and I am sure, in the future. I checked “against,” but I do not want to give the wrong impression. In general, I am for a vast majority of the changes in the legislation. Let me give you some examples. In A.B. 14, there is a change asking to specifically enumerate mitigating circumstances. I agree with that change, as I believe the change comports with the current case law. Senator Care asked a question earlier regarding if the jury would be given a list of all of the mitigating factors or circumstances the defense alleges. Absolutely, this change in the law simply codified what is already practiced in the Eighth Judicial District Court. For example, in the Timothy Weber murder trial in Clark County, the defense attorneys wanted 31 specific, alleged mitigating circumstances to go in instructions to the jury. They were prepared by the prosecution and given to the jury, which is already the practice and I do not oppose codifying it.
Regarding adding mental illness as a specific mitigating circumstance, while I feel this evidence is always something which could be brought forward under any other mitigating circumstance, if it is the desire of the defense community to have that, as Mr. Pescetta says, elevated to the dignity of a specifically enumerated one, I have no opposition. I personally do not think there is an important distinction between those other enumerated mitigating circumstances and those specifically listed, but to the extent it is perceived by the defense to be one, I do not oppose the change in any way.
In my upcoming comments on other legislation, I will probably be suggesting some minor tweaks or fixes in wording to correct what I perceive to be problematic or unintentional loopholes. Then there are two issues I am strongly opposed to and one of those is the order of argument. Before I get into the legal reasons why I am proposing the order of argument should stay the way it currently is, I want to talk about leveling the playing field and about fairness. I want to make sure this committee has an understanding of how a penalty hearing proceeds. After opening statements, which the State calls penalty phase evidence, the defense is able to call penalty phase evidence. Then something very important happens. In Nevada, and not all states allow this, the defendant has the right of what is called allocution, meaning the defendant can stand up, personally address the jury, and make a plea for her or his life. Prosecution never gets to cross-examine her or him. As part of the penalty phase evidence, the defense is allowed to bring in family members of the defendant who may plead for her or his life and say do not kill or execute my child. There is almost always a parade of the defendant’s family members. On the flip side, the victim’s family is not allowed to make a specific sentencing recommendation. So, the factors are already stacked in favor of the defendant in a penalty hearing.
Senator Titus:
Can the victim’s family make some comments though, even if they cannot specifically say, ”Please execute this guy?”
Mr. Peterson:
Absolutely, Senator Titus.
Senator Titus:
So they do have a chance to make a plea and talk about their child, or their significant other. I thought I recalled we did that as part of the victim’s rights amendment, allowing the victim more of a say and more participation in the procedure. Am I accurate?
Mr. Peterson:
Senator, you are absolutely right. The victims do get to speak, but unlike the defendant and the defendant’s family, the victim’s family does not get to make a recommendation regarding the punishment they feel should be imposed. In speaking with prosecutors who try these types of cases, the one uniform question they say they get from jurors when they speak with them after a penalty phase is this, “Well, geez, the defendant was begging for his life and the defendant’s family members asked us to spare his life. The victim’s family did not ask us to impose the death penalty. We wondered if they even wanted us to impose the death penalty.” The prosecutors then have to inform the jurors the law does not allow the victim’s family to ask for death; and then the jurors will say, “Oh really, that would have been important for us to know.” To which prosecutors then have to respond, “Not only is the victim’s family not allowed to ask for death, prosecutors are not allowed to tell you they are not allowed to ask.” So things are already stacked to the advantage of the defendant.
Senator Nolan:
The jurors are not allowed to be told the victim’s families are not permitted to plea for the death penalty. Is that correct?
Mr. Peterson:
Yes, that is true. We have frequently asked or submitted jury instructions to judges to request the ability to instruct the jurors of this fact and it is routinely denied.
Senator Nolan:
How are the instructions given to the victim’s family when they are told they are given an opportunity to speak to the jury? Are they specifically told they cannot request or demand the death penalty?
Mr. Peterson:
Yes, there is not an instruction specifically for family members. As practice, the prosecutors talk to the family members ahead of time and tell them what they are not allowed to say. For the most part, they are very good about complying with instructions. They are told not to get smart and try to slip something in because all they are going to do is cause error in the case. It is a lot of pain for the victim’s family members to go through this and I remind them of that and I say, “Listen, there is a lot of trauma here, do not cause yourself more trauma by injecting something that is error.” If a family member does say something, there is quite a hue and cry.
Next is the argument phase. It is sometimes construed there are two arguments to one for the State and against the defense. This is not true. In a capital case, the defendant has two attorneys by statute and by Supreme Court rule. The normal procedure is this, the State opens the closing argument, defense attorney “A” speaks, pleading for the life of the defendant, defense attorney “B” also addresses the jury, and then the State closes. So, in essence, it is not two to one. It is an ordering factor, and before you even talk about shifting the order, appreciate the defendant does not just have a chance to plea for his life, he has a chance to do it personally, a chance that the victim’s family do not share. This is already a great advantage in favor of the defendant in a penalty phase.
I was somewhat concerned to hear prior testimony say there is any burden on the defendant in a penalty phase. I am going to quote from the materials I have provided to you (Exhibit H. Original is on file in the Research Library.). This is our Nevada Supreme Court quote, “the death penalty is an available punishment only if the State can prove beyond a reasonable doubt at least one aggravating circumstance exists,” and this is still the State’s burden, “and that the aggravating circumstance or circumstances outweigh the mitigating evidence offered by the defendant.” The statute does not shift the burden of proof to the defendant. Mr. Kohn and Mr. Pescetta certainly may perceive there is some pressure on the defense to present mitigating evidence. That is always the case, but that does not rise to the level of a legal burden. Our Nevada Supreme Court has clearly said the defense does not have a legal burden in this situation. This is sufficient reason to leave the order of argument the way it is.
Mr. Peterson:
Another reason to leave the order is the concept of misconduct. I do not want to focus on whether or not there is prosecutor misconduct or defense misconduct. I want to talk about the question of remedy. As it is now with the State’s concluding argument, if there is misconduct there is a remedy for the defense. The defense can appeal and get a new trial or a new penalty phase. If the defense is allowed to go last and there is defense misconduct, prosecution is then stuck with a situation where defense misconduct can impact a case. I do not think there is anyone who wants verdicts shaped by misconduct. In this instance, particularly since this Legislative Session is considering adopting what we call a “one-and-done” provision, meaning if a jury hangs up, the default sentence becomes life without the possibility of parole. Prosecution does not get another penalty phase. That means all defense has to have, in a final defense closing, is enough misconduct to hang up the jury and they have avoided the death penalty.
Senator Titus:
That has not passed yet, right? You said it is pending?
Mr. Peterson:
Correct, it is pending. I have argued against having this type of provision. I am sure we will see this in A.B. 13, the three-judge panel bill, and I will have extensive comments at that time.
Senator Titus:
Did you give this testimony to the interim committee and present it on the other side? This information you are now giving us?
Mr. Peterson:
No, I am late to the dance and I apologize. Our office did have input during the committee and I testified in front of the Assembly and provided documents then. Today’s documents were just recently prepared and essentially memorialized my comments this morning. You are not going to find a lot more in my material beyond what I am saying now.
Senator Titus:
So, you have told all of this to the Assembly committee as well?
Mr. Peterson:
Oh, boy, it has been a while since I have read the transcripts. I was not involved. I am sure we expressed our concerns. I do not know if they specifically raised the concern of misconduct. I apologize for being late to the dance on this issue, but I thought I needed to bring it before you.
Senator Titus:
I would not really characterize this as a dance. That trivializes what we are talking about.
Mr. Peterson:
I do not mean to do that. Prior to working on death penalty cases, I worked on sexual assault cases. I know the great importance and seriousness of all these types of cases.
Senator McGinness:
What is your position? Would you be able to object if there was perceived misconduct on behalf of the defense? What are the politics of making a motion or an objection?
Mr. Peterson:
This happened just the other week, though not in closing, but in the opening portion of a death penalty case. A defense attorney stood up and said, “I would not be here standing in front of you if I did not believe the defendant should not get the death penalty.” Anyone who has taken law classes knows we are not allowed, by ethical rules and case law, to inject our personal opinions into a case. When we were faced with the situation of do we object to that, it is difficult. We do not want to seem like we are obstreperous. We do not want to seem like we are hiding the ball from the jury. Our attorneys in that case did not object immediately, we objected on the break. It is a very difficult decision to make. There are two important issues to raise, you cannot unring the bell. Those comments were made. Secondly, if you cannot unring the bell and you do not have an appellate remedy, that is a dangerous situation. For example, let us say a comment like that came up during defense closing. Prosecutors would have objected, probably at the break or requested a bench conference to do so because it is very troubling to object in front of a jury, particularly at that stage of a trial. Were there to be rebuttal, the State could say, “Listen, it is not about what I believe, it is not about what the defense attorney personally believes, it is what you believe, members of the jury. It is what the facts show, it is what you, as reasonable men and women, come to the conclusion on.” If there is a situation where the defense gets to argue and misconduct is committed, I am not saying it is done intentionally, in the heat of the battle. These are very impassioned cases with attorneys who believe strongly representing both the State and the defendants, and take this very seriously. This is not something you can argue about dispassionately. If the defense argues last, there is the specter of the unrebutted, unreviewable misconduct, which is problematic.
Senator Titus:
Does it ever occur, when you have the family of the victims coming forward and even though you have told them they cannot ask for the death penalty, in the heat of the moment, as you have described it, and in their passion and their talking about a person who has maybe killed their family member, that they get excited and say “Do not let this person go free.” An eye for an eye, they forget about the jury or the directions to the jury and they say things like that in their testimony. Does that ever happen?
Mr. Peterson:
I cannot think of a specific instance. I am sure it has happened. In general, we try to get a feel for who are going to be emotional speakers and who are not before they make their presentations. In a large number of cases, we urge them to prepare written comments to prevent exactly that situation. It is rare. Has it happened? I cannot think of a case, I am sure it has. The remedy would immediately be a new penalty phase, or an appeal.
Regarding the jurisdictions of this rule, the numbers I have indicated are jurisdictions which have a special death penalty rule. There are a number of jurisdictions that just flat out, in every case, say: the defense argues, the State argues, and that is it. There are six additional jurisdictions, I cannot remember all of them, but my recollection is South Carolina, Georgia, maybe New York, and I think there are three others. In the purpose of having as much candor as possible, I am not trying to represent a false number to this body.
What is requested is a special “death only, death justified” rule. Other jurisdictions do not find the need for a special death only, death justified rule. One of those jurisdictions, Minnesota, has the rule the state argues and the defense argues. They felt the need in 1999 to craft a special death only rule in favor of allowing the prosecution to argue last and they already had a very curious rule. Minnesota said the state argues, the defense argues, and then there is a very limited right of the state to respond to any defense misconduct that might happen, as a safeguard. They felt they needed to go further and not just allow a little safety-net argument by the state, but to allow full state rebuttal.
We can be guided by the Nevada Supreme Court. In the Witter v. State, [112 Nev. 908, 921 (1996)] case, Mr. Kohn argued, on appeal, the defense should be able to go last. We see that raised frequently in capital cases and our court unanimously turns it down, but in Witter they made a very specific holding saying such a concession would unfairly disadvantage the prosecution. They did not elaborate on it, but I cannot imagine the U.S. Supreme Court or the Nevada Supreme Court is not as cognizant as I am of the issues I have laid out before you this morning. I urge you on behalf of the Clark County district attorney’s office and I have spoken to Kristin Erickson from Washoe County. Because she is handling some sex offender legislation this morning, she has authorized me to speak on behalf of Washoe County as well. We are jointly urging you to maintain the order of argument.
Senator Care:
In the Witter v. State case, did the Court say “in this case” it would unfairly disadvantage the prosecution, or “under these circumstances” it would? Sometimes we get a bill as a result of a Court opinion. Sometimes the court will say, “applying the plain meaning of the statute,” and sometimes they will even, in so many words, invite us to amend a statute. Did the Court feel this was true in all cases or in just in this particular case?
Mr. Peterson:
In Witter v. State, they rejected the concept of the defense arguing last and made the observation it would unfairly disadvantage the prosecution. In all the other cases cited in my materials, they flat out just say this is not proper. Sometimes they observe the statute does not allow it, therefore it was proper for the district court not to allow it, without getting into any additional analysis. In Witter v. State, however, they made the statement I quoted showing the thought process behind their ruling. It was not a case-specific holding.
Senator Washington:
Outside of what the media has told us, what happened in the case of the slain officer, the capital case just prosecuted? Washoe County District Attorney Richard A. Gammick was going after the death penalty and ended up getting two consecutive life sentences without the possibility of parole.
Mr. Peterson:
I am aware of the case, but I have not had the opportunity to discuss with Mr. Gammick the ins and outs of the jury’s issues of that case, so I cannot answer your question.
Senator Titus:
Was that Nevada Supreme Court case unanimous? We always hear things attributed to the Nevada Supreme Court; maybe we ought to get them over here to testify.
Chairman Amodei:
Mr. Wilkinson, will you get the committee copies of the case?
Mr. Peterson:
I have a binder here, and it strikes me as the kind of case where we might have had it sent from Nevada Supreme Court Justice Robert Rose, for example. I do not want to represent it was a unanimous case.
Senator Titus:
We keep talking about leveling the playing field and I see this coming from the district attorney’s office. I wonder why the public defender did not put together a book like this.
Mr. Peterson:
I put that book together in 2 days, I took it to Kinko’s, Incorporated, and had it done. I laid it out myself. I paid for it. I am sure I will be reimbursed for it. I am proud of it. I do not think it is a budgetary matter. It was my desire to make sure we are all practitioners who have to live with the rules of the Legislature and I want to give this body my suggestions and some of the reasoning behind them.
Regarding the mental retardation bill, there are a couple of instances where they were trying to incorporate a comment I had made, but because maybe I did not leave the rationale with them in written form, there was an omission.
Chairman Amodei:
With no further testimony, we will close the hearing on A.B. 14 and open the hearing on A.B. 15. Mr. Peterson will you focus your remarks on your proposed changes and perhaps the practitioners could focus their remarks on their response to those proposed changes.
ASSEMBLY BILL 15 (1st Reprint): Prohibits sentence of death for person who is mentally retarded. (BDR 14-199)
Mr. Peterson:
We are substantially in favor of a vast majority of this legislation. The current procedural portions of the bill, for its pretrial issues, are appropriate and we support them to be enacted as drafted. There are a few modifications we ask to be made. The first one is to comport with practice. If this change is not made, we do not view it as fatal. Rather than the current language saying the court must find the defendant mentally retarded, and death may not be imposed, the practice in district court is the State files a notice of intent to seek death. I propose the language be amended to say the district court does two things: it makes a finding, on the record, of mental retardation, and then strikes the notice of intent to seek death, making it no longer a capital case.
There is an unintended loophole. One of the reasons I wanted to leave materials is to prevent something like this. Not only should we do this procedure of mental retardation prior to trial, but also there should be an opportunity for the defense after trial to raise this, if they want, because they are going to argue it is unconstitutional to have to show their cards before trial. I proposed it to the Assembly, and then tried to incorporate it. My proposal was not that the defense raise it, but if there is a sentence of death, the court do it of its own motion, as the most neutral and the safest. It prevents the later claim of ineffective assistance of counsel, but there is one loophole. On page 11 of my materials (Exhibit H) where it says, “If a sentence of death is imposed and no prior determination” and that “of” should be regarding no prior determination regarding mental retardation has been made pursuant to section 1. As written, this statute would allow the defense to raise it prior to trial, lose it, go to trial, get sentenced to death and then raise it again after trial. The provision was intended to be a safety net. If it had not been litigated before trial, we may litigate it now. There was no intent to give the defendant two bites at the apple.
There are two types of appellate review. There is review from final orders and there are interim reviews prior to trial for the final orders. The interim appellate review, for the State only, is suppression of evidence. The reason the defense does not have interim appellate rights is because they had an adequate remedy at law. First of all, they may not be convicted or sentenced as they deem improperly, but they can appeal. If evidence is suppressed and the State does not have the chance to challenge that prior to trial, we are forever precluded from challenging it. For similar reasons, the pretrial determination of mental retardation should only be appealable by the State because no one wants a mental retardation statute rewarding malingerers. A defense attorney’s hands are going to be tied if his client is claiming mental retardation. They are going to have to investigate it. If there is an adverse determination and there is an appellate right, they are going to have to appeal it or later they will be alleged as ineffective for not doing so. This opens up an appeal that is going to take a minimum of 6 months and cause trial delay. Delay alone is not a reason to change this, but this is a loophole allowing a malingerer to delay his trial by raising it, losing, and then appealing prior to trial. No one wants a system where the malingerer is rewarded. The appellate is for the state, and the defense should not have that right similar to suppression of evidence because they have an adequate remedy of law elsewhere.
Mr. Pescetta:
I am appearing on my own behalf and as a member of NACJ. This bill has changed only a little since it was proposed by the interim subcommittee. The other body has eliminated some controversial features, so there is a lot of agreement for this version.
On pages 9 and 10, we do not have any particular dog in this hunt for the change. I do not think it makes any difference. It changes the language in terms of striking the notice of appeal, but if there is a finding the defendant is mentally retarded by the court, the notice of intent to seek a death penalty is irrelevant. Under Atkins v. Virginia [536 U.S. 304 (2002)] and under this bill, they cannot get the death penalty.
On pages 10 and 11, the posttrial determination was inserted as a safety valve for cases where the issue has not been raised before trial. This amendment is unnecessary because you would have to be an incompetent defense lawyer to go to the court, move for a finding of mental retardation, have the court say, “No, I find you not mentally retarded,” go through a death penalty trial, have the death penalty imposed, and then move again in front of the same court that has just found the defendant as not mentally retarded, and ask for a hearing to show this defendant is mentally retarded.
The clarifying language Mr. Peterson proposes is not objectionable. I do not think there was ever intent to allow what he refers to as “two bites of the apple.” Though the proposed change on page 11 to section 3 of the bill is not necessary, we do not have a serious objection.
The problematic proposal is to remove the right of both sides to appeal the pretrial determination. We are talking about going through a death penalty trial, which means calling a much larger jury pool, and death-qualifying a jury. This means a longer trial and going through a penalty phase, where, if the defendant ultimately receives the death penalty, maybe this is reviewable. All of that costs a lot of money. The sooner we get this finally resolved, the better it will be for the process because the issue will then be over.
There is not a significant problem with respect to malingerers. I have had two cases involving mentally retarded defendants. In both of those cases, the prosecution has ended up either stipulating or not opposing the reduction of the death penalty because the information came back from the experts saying the defendants were mentally retarded and we were done. It was resolved without controversy. There are going to be cases where there is controversy. As a matter of policy, it is better to resolve the issue of mental retardation pretrial and give both sides the opportunity to appeal at that time, before we invest the time and money into a death-verdict trial. Mr. Kohn can also give you statistics about how infrequently this sort of problem happens.
Mark J. Nichols, Lobbyist, National Association of Social Workers - Nevada:
I have prepared written comment, which has been faxed to you (Exhibit I). The only thing I want to state in addition is about the debate around the death penalty. In the reform issues you are looking at is an extremely emotional issue. You are not being asked to take an anti-death-penalty position. We are addressing issues of fairness, of equity, and accuracy of the death penalty. Please take those into consideration as part of your framework as you make your decisions.
Chairman Amodei:
Your written testimony will be made part of our record for this legislative day.
Mr. Kohn:
One of the concerns was of “malingering” and how often this is going to come up. We have been living with Atkins v. Virginia for 10 months, since last June. In the special public defender’s office, we have ten death cases and one more case where I know they will file a notice of intent in a short time. Among those eleven cases we have one client with an intelligence quotient (IQ) of 67. There is no one else who will qualify under the law. I asked the public defenders in the Clark County Public Defender’s Office and they have 18 death cases. They have one client in the high 50s and they have two clients who happen to have IQs of exactly 71, which may be problematic. One of the requirements of the law and of the DSM-IV is there be a history during the developmental period. Obviously, there has to be some testing in junior high school or grammar school consistent with a finding of mental retardation, so the malingering assertion will not be much of a problem.
In terms of appeals to the Nevada Supreme Court, as a practical matter, there are very few writs granted pretrial by the Nevada Supreme Court. Both parties should be able to go up if they want to, which is not going to happen very often because these cases are getting resolved. If they are not resolved by the trial court prior to trial, they certainly can be resolved at the hearing. We are better off doing this pretrial because we are going to save a great deal of taxpayer money.
W. Lawrence Williams, Associate Professor of Psychology, Director, Prevocational Assessment, Training, and habilitation and Progressive Community Inclusion, University of Nevada, Reno:
I have submitted documents to the committee (Exhibit J). Included in my materials is a definition for mental retardation from the American Association on Mental Retardation. A comment was just made about having an IQ of 67. What current legislation is appearing to support is a diagnosis of mental retardation from a qualified professional and not just some number. There is something called the adaptive behavior scales which are equally weighted and have to be used. This must happen within the developmental period, up to 18 years of age or, in some cases, 21 years. Someone cannot fake mental retardation. There will be opinions from experts, and either side of an argument can get its own experts, but the data will speak for itself.
Richard Siegel, Ph.D. President, American Civil Liberties Union of Nevada, Human Services Network:
I have presented this committee with three pages of public opinion on the issues you will be considering these 2 days (Exhibit K). If you would turn to the third page from the Gallup Poll of May 2002, public opinion against the death penalty for the mentally retarded has spiked considerably. The opposition, by 82 to 13 percent is up from previously, which was about 2 to 1. The public is solidly opposed to the execution of the death penalty. This poll was conducted a month before the Atkins decision, which only has increased the opposition and consolidated their opinion.
I also want to point out the opinions about the mentally ill are almost as strong. This came up in the issue of a specific mitigating factor, and the opposition in principle to the execution of the mentally ill is almost as strong. The figures for juveniles are here and I will come back tomorrow to discuss them more. The opposition for juveniles is also rising, perhaps surprising to some on the committee. The opposition to executing juveniles has reached a level of about 2.5 to 1.
John H. Emerson, Lobbyist, Religious Alliance in Nevada, United Methodist Church Nevada-Sierra District, California Nevada Conference:
I live in Sparks and I am a member of the board of directors of the Religious Alliance in Nevada, commonly referred to as “RAIN.” When it comes to issues like the death penalty bills before you, there will always be a 100 percent chance of RAIN appearing before you to testify. The Religious Alliance in Nevada is a consortium of five major, mainline Christian denominations with a combined constituency of a half-million church members. Our advocacy on behalf of this comes out of common agreement and official statements from our respective national bodies.
I am here to encourage your favorable vote on A.B. 15. My testimony is in printed form and copies have been given to you in which I have made several points for you to read (Exhibit L). Assembly Bill 15 is right for our time in history. I encourage you to do the right thing and vote favorably on this matter.
Senator Nolan:
I want to acknowledge Dr. Williams who testified before the interim committee and provided us the most objective and unbiased testimony with respect to the standards by which this bill was constructed. I want to personally say thank you.
Chairman Amodei:
For purposes of our record, the written material submitted by all three gentlemen will be made part of our record for this legislative day.
David Ward, Chairman, Commission on Mental Health and Developmental Services, Department of Human Resources:
Given the lack of opposition on A.B. 15, I will waive my opportunity to speak and am submitting my written testimony and that of Brian Lahren, executive director of Washoe Association of Retarded Citizens, who could not be here, to be included in the official record (Exhibit M).
Chairman Amodei:
Your written materials will be included in our record for this legislative day.
SENATOR WASHINGTON MOVED TO AMEND AND DO PASS A.B. 15 WITH AMENDMENTS APPEARING ON PAGES 9 AND 10 OF THE DISTRICT ATTORNEY’S BRIEFING PAPER.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator Washington:
Assembly Bill 14 will go into a work session. I would like Mr. Wilkinson and Mr. Anthony to consider an amendment as expressed by Mr. Peterson. Have Mr. Kohn and Mr. Peterson talk about this amendment to the jury instructions concerning the victims who cannot speak to the death penalty, making it clear and concise, so the jury has an understanding why victims cannot speak to the death penalty; or we can flip it the other way around and put it in statute or amend this bill here, that the victim may have an opportunity to plead for the death penalty, either way.
Senator Amodei:
When we work session A.B. 14, I have no objection to you offering whatever amendment you see as appropriate for consideration. With no further business to come before the committee, this meeting is adjourned at 11:03 a.m.
RESPECTFULLY SUBMITTED:
Lora Nay,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: