MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-second Session

May 22, 2003

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:14 a.m., on Thursday, May 22, 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

Lora Nay, Committee Secretary

 

OTHERS PRESENT:

 

Michael Pescetta, Attorney

JoNell Thomas, Attorney

Richard L. Siegel Ph.D., Lobbyist, American Civil Liberties Union of Nevada, Human Services Network

Nancy Hart, Lobbyist, Nevada Coalition Against the Death Penalty

Jan Gilbert, Lobbyist, Nevadans for Quality Health Care, and Progressive Leadership Alliance of Nevada

R. Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association/Las Vegas

Clark Peterson, Chief Deputy District Attorney, Office of the District Attorney, Clark County

Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney

James F. Nadeau, Lobbyist, Nevada Sheriffs and Chief’s Association/North, and Washoe County Sheriff’s Office

 

Chairman Amodei:

We will start today’s hearing with Assembly Bill (A.B.) 13 and A.B. 16.

 

ASSEMBLY BILL 13 (1st Reprint): Eliminates panel of judges in certain penalty hearings in which death penalty is sought and requires district attorneys to report certain information concerning certain homicides to Supreme Court. (BDR 14-197)

 

ASSEMBLY BILL 16 (1st Reprint): Provides for genetic marker analysis of certain evidence related to conviction of certain offenders sentenced to death. (BDR 14-200)

 

Assemblywoman Sheila Leslie Assembly District No. 27:

These are the last two bills coming before you from the interim study on the death penalty. Assembly Bill 13 concerns the three-judge panel data gathering. In the study we found significant racial discrimination concerns. Forty percent of Nevada’s death row population is Black compared to their 8 percent of Nevada’s general population. Our subcommittee did consider a number of recommendations to address this concern. We looked at what other states had done in the area of racial justice. Many states have done proportionality reviews and data collection. The subcommittee of the interim study did reach a unanimous agreement to refer the question of proportionality review to the Nevada Supreme Court. We also reached unanimous agreement to require the reporting of statistical information on all death penalty and homicide cases. Currently there is no systematic collection of this data required. Therefore we cannot begin to assess or analyze the issue of racial discrimination until we have some data to review.

 

The fiscal note for this bill came from the Nevada Supreme Court in the original draft and it was based on provisions that have since been removed that would have required the courts to also gather the data on homicide cases. In the Assembly Committee on Ways and Means, this bill was reviewed and found to have no fiscal note. The district attorneys are now okay with the limited data requirements left in the bill.

 

On the three-judge panel issue, the subcommittee unanimously agreed that we should eliminate the three-judge panels in hung jury cases. Two weeks after the subcommittee had their work session, the United States Supreme Court decided Ring v. Arizona [536 U.S. 584 (2002)], (Ring). The Ring decision made clear that juries, not judges, must make the decision to sentence someone to death including all the prerequisite decisions that lead toward the death sentence. With the Ring decision in mind, the Assembly amended the original bill to eliminate three-judge panels in all death penalty cases, hung juries, and those who plead guiltily to first-degree murder. The Assembly also adopted a default provision that requires the judge to impose a sentence of life without possibility of parole if the jury cannot reach a decision. The vote in the Assembly was split on this issue. As the chairman of the interim study, I am very satisfied with the version the Assembly did pass and is in front of you today.

 

Assembly Bill 16 is a much simpler bill. This is the deoxyribonucleic acid (DNA) testing bill. One of the main reasons for the interim study was the nationwide concern about the possibility of executing an innocent person. This bill does provide a very important safeguard. The Assembly added a few amendments based upon input from all sides, which clarified the process and improved the bill. The Assembly passed A.B. 16 unanimously.

 

There were some fiscal concerns submitted by the Department of Corrections, so the bill was reviewed by the Assembly Committee on Ways and Means. It found that very few inmates would be able to take advantage of this new provision and therefore any associated cost would be absorbed by the Department of Corrections’ budget. Neither of these bills needs to go to your Senate Committee on Finance, as they have already been reviewed.

 

I would like to thank the committee for all your hard work on death penalty legislation. I have been very pleased with the response the study and serious review has received. Even the Las Vegas-Review Journal, a paper not usually endorsing things I am working on, endorsed every single death penalty reform before you this session. This is indicative that public opinion is changing in our State. I am very proud of our Legislature for taking this issue on and I urge your support for these bills.

 

Michael Pescetta, Attorney:

I am an attorney who practices in the area of death penalty and habeas corpus work. I am testifying on behalf of myself and as a member of the Nevada Attorneys for Criminal Justice and not as a representative of the federal public defender.

 

As Assemblywoman Leslie indicated, there was a great deal of testimony in the course of the interim subcommittee hearings. The fruits of the previous Nevada Supreme Court task force on racial and economic bias in the justice system established what is an incontrovertible statistical disparity in Nevada’s death row. We have a 40 percent African-American, death-row population and it has hovered around that figure for almost 20 years. Compared to the general African-American population in the State, this is clearly a statistically significant disparity.

 

Other disparities have also been consistently demonstrated. For instance, although black men are second only to white men in total number of victims of homicide, out of 85 people on Nevada’s death row, there are only 5 who are on death row for homicides against black men. Not coincidentally, all of those defendants are black men also. There is one white person on Nevada’s death row for killing a black person. One. Even that overstates the case because that individual was convicted of also killing two white people at the same time.

 

There is a robust statistical indication that we have problems in the administration of the death penalty. If we are going to retain the death penalty we have an obligation, not just to the State but to the justice system itself, to determine why this is happening. Then we will be able to go to defendants, the justice system, and the public and say we have examined this issue. We will have examined it and we have determined it is operating fairly and the statistical anomalies are simply statistical anomalies.

 

Mr. Pescetta:

Section 6 of A.B. 13 provides for the reporting of the kind of data that will demonstrate this effect, one way or the other. It requires reporting of all homicide cases that are not involuntary manslaughters. If we do not look at the cases in which the death penalty is not charged at all, we are losing important data about disparities in charging which may or may not be based on bias. For instance, in a fairly famous case in recent years, although there were potentially three or four aggravating factors that could have been charged, the death penalty was never sought against those individuals. If we do not capture that effect we are not capturing all of the points of decision in which these decisions may or may not be affected by bias are occurring.

 

The reporting requirement does not impose a significant burden on the prosecution. Mr. Peterson or Mr. Graham and I could sit down and generate a form to capture this data. It would take 30 seconds to a minute to fill out. It could be a check mark form. It is generally material already in the prosecutor’s file. It is material Mr. Owens of the Clark County district attorney’s office generated for a report to the interim from already closed cases. This reporting requirement is prospective only. The court or the prosecutor is not required to go back over 20 years of cases and generate anything.

 

On the effective date of the legislation, the form could be in place and it could be checked off for all homicide cases without any burden on anyone. To the extent that some of this information may be somewhat more difficult to gather in the course of trial, there is nothing preventing the prosecutor from consulting with the district court and with defense counsel for help in filling out the form.

 

There is one particular provision in section 6, subsection 2 requiring identification of the decision makers who make the decision about whether or not to charge a defendant with the death penalty, or make the decision whether or not to accept plea negotiations. I understand the district attorney’s office would object to this provision. It is absolutely critical that we identify the particular people who are involved in these decisions. As you have heard in previous testimony on other bills, both the Washoe County district attorney and the Clark County district attorney have committees to review whether or not the death penalty should be charged in certain cases. If we do not know who is on those committees, we are not going to know who may individually be affecting the decision in a way which may turn out to be biased. This also includes people inside or outside the district attorney’s office with whom the district attorney consults, and that is found in section 6, subsection 2, paragraph (j), subparagraph (4).

 

Mr. Pescetta:

This is important because when the district attorney’s office gets input from people other than members of its own office in making this very discretionary decision, it is important to know who is having input. For instance, it is typical when the district attorney decides to negotiate a plea, they fill out a form that is called a non-trial dispositional memo which typically records that they have consulted with victims or with people from the Las Vegas Metropolitan Police Department (Metro). There is one case we are working on now in which one of the officers who was involved in the capital case, who testified at trial, and whose credibility was an issue, as with all witnesses, was later fired by Metro for an incident in which racial epithets were used by that officer. If that officer was somebody who was consulted in determining whether or not to charge the death penalty, whether or not to accept a negotiated plea, we want to know whether that officer was involved in those kinds of decisions, just as we want to know which individuals in whichever district attorney’s office are involved. Partly that is to determine if some people are exercising absolutely color-blind decision-making. That is great and something for which we should recognize and reward those people. But we are not going to know that unless we identify the decision makers.

 

A question was raised in the Assembly during the hearings on A.B 13 by Assemblyman John C. Carpenter. It concerned the provisions for consulting with victims’ family members. We could have mandatory language to ensure those family members do not need to be individually identified. It would satisfy us if we would just identify whether or not family members or victims were consulted. This may seem like a small thing, but we have a case in which two defendants were convicted of murder of a white convenience store clerk and attempted murder of a black customer who was shot but ended up escaping. When it came time to plead, a non-trial dispositional memo recorded they consulted with the white fiancée of the store clerk about whether the codefendant should be allowed to plead to a non-death disposition, but the black customer was not consulted even though it was the codefendant who had supposedly shot him. That may or may not show a conscious discrimination, but this is something we need to know, whether or not family members were or were not consulted with the disposition. To answer the concern raised in the Assembly, just identifying whether or not those people were consulted without identifying the individuals involved would certainly be adequate. We could provide language if that is the sense of this committee.

 

Senator Wiener:

When you said the fiancée, how far do you extend the definition of family?

 

Mr. Pescetta:

I do not think we need a definition. This is a question of identifying there was consultation with family members, relatives, or anyone else. The provision currently is written broadly enough to cover anyone they consult. We should not try to limit whom the district attorney does consult, we just want to know that they did.

 

Sections 1 through 5 of A.B. 13 abolish three-judge panels and provide that if a penalty jury in a capital case cannot reach unanimous decision, the judge will impose a sentence of life without possibility of parole. Something has to be done about the three-judge panel system.

 

The best solution proposed in the bill is to eliminate these panels altogether. They give rise to extraordinary amounts of litigation concerning the fairness and constitutionality of those panels. Three-judge panels impose death sentences in 75 to 80 percent of the cases in which they are used. A sentencing mechanism producing that result is not a sentencing mechanism that is working to do what the United States Supreme Court says we are supposed to be doing, which is to distinguish rationally those few cases in which the death penalty is imposed from the many cases in which it is not. There is also a question about the selection of the panel members. There is a very low level of diversity in the Nevada district court bench. There are only two African-American judges in the State. There have never been more than two. Because of the workings of the three-judge panel, in the county with the highest African-American population in the State, which is Clark County, if you are not in front of one of those African‑American judges you can never get an African-American decision because the other two members of the panel have to be chosen from other judicial districts in the State. Currently, there is no African-American member of the Nevada Supreme Court, which provides a review of the sentence.

 

Mr. Pescetta:

You have a situation where it is impossible, in most cases, to get a member of the defendant’s race, which is disproportionately African-American, as a decision maker in three-judge panel cases. Just parenthetically, if you look at the sentencing patterns where there is an African-American judge on a three‑judge panel, it is exactly the reverse of the general statistical picture. Three-judge panels impose death 78 to 80 percent of the time. If a three-judge panel has an African-American member, 80 percent of the time the panel imposes life and not death. That is the concern in terms of the diversity of those panels. The only sensible way to deal with these situations is to get rid of three-judge panels altogether.

 

The default provision of A.B. 13 states that if a penalty jury cannot reach a unanimous decision, then the sentence of life without possibility of parole is going to be imposed. That is the majority position in states having the death penalty. Twenty-seven states, and the United States government provide for a default provision in non-unanimity cases of a sentence of life. Lest anyone suggest only those terribly liberal death penalty jurisdictions have those provisions, more conservative states such as Mississippi, Louisiana, North and South Carolina, and Oklahoma are included in the 27. Even Texas, which has a slightly different structure, calls for answering three questions to qualify for the death penalty and if there is non-unanimity on any of those questions, a sentence of life is imposed. This is a provision that would put us in the mainstream of other jurisdictions both before and after the decision in Ring v. Arizona.

 

The district attorney has raised the question about what should happen if this provision is not enacted and has proposed the defendant should be given a choice of having a three-judge panel or a jury at the initial stage where the sentencing mechanism is determined. That is a terrible, terrible idea and really a red herring because I do not know any competent defense lawyer who would rationally tell clients they should go in front of a tribunal that rules against their side 80 percent of the time. Compare this to a civil case. If you told your client you were going in front of an arbitrator or mediator, or some tribunal that rules against you 80 percent of the time, and you would have no influence over the selection of the members, you would not be able to get malpractice insurance. A lawyer who does this in a capital case, having no influence over the selection of the members on a three-judge panels which could include judges who have voted for death every single time, is trusting to luck and not preparation or skill. This is something in every case where such a decision would be made you are going to see an ineffective assistance of counsel claim on that basis.

 

We would agree to and help provide language for the small amendment to the reporting provision. This bill is a good bill. It is a sensible solution to the problem of the Ring v. Arizona decision and for once would decrease the amount of litigation in capital cases.

 

Senator Wiener:

You mentioned Texas was three questions. Could you share those with us?

 

Mr. Pescetta:

The three questions involve whether the defendant will be dangerous in the future. There is a question about prior history, and the third one I do not remember. The default provision is if they answer the three questions “yes” then the death sentence is imposed and if the jury cannot make a unanimous agreement, then the default is for life.

 

Senator Care:

Let us start with the scope of the problem. How often do you have a hung jury?

 

Mr. Pescetta:

It is relatively rare. Only about six cases involving hung juries are currently pending.

 

Senator Care:

You mentioned 27 jurisdictions now have a default provision where if the impaneled jury in the penalty phase cannot agree on life or death, then the sentence becomes life without the possibility.

 

Mr. Pescetta:

Or life, as defined under local law. Some have life sentences that can be life without or life with parole. Twenty-seven states have the capital provision from the U.S. Code which has the same default provision that if the penalty jury cannot agree the sentence goes to life.

 

Senator Care:

Let me ask you this. If you have a hung jury as to the verdict in a criminal case, then that is not the end of it necessarily. The district attorney has the option of then seeking to retry the matter. Is it a faulty argument to suggest maybe that ought to apply also in the penalty phase?

 

Mr. Pescetta:

In my opinion it is. The context is important. A jury picked in a capital proceeding goes through very extensive voir dire, which is called death qualification. Under United States Supreme Court authority the State can exclude from capital sentencing potential jurors whose views about the death penalty would prevent or substantially impair their ability to impose a death sentence. As soon as prospective jurors say they have a problem with the death penalty and do not think they can impose it, those jurors are off for cause. Typically, during the voir dire, there are more extensive questions about attitudes towards the death penalty and if potential members say they would have a hard time imposing the death penalty, the prosecutors use peremptory challenge for these persons so the result is a jury primed to accept the imposition of the death penalty. Our position is if the prosecution cannot convince that jury the death penalty should be imposed unanimously, then there is enough doubt about the prospective sentence and a default provision to life without parole is the appropriate sentence.

 

In cases where there is that kind of doubt, the defendant should get the benefit of the doubt and a sentence less than death should be imposed. That sensibility is good enough for Texas, Louisiana, and Mississippi; it shows there is a fairly robust position in favor of mechanisms perfectly appropriate for us as well. Nevada has the highest per-capita, death-row population in the country. Our problem is not that we are not sentencing enough people to death. This default mechanism will honor doubts about whether the death penalty is the appropriate sentence and save significant resources in impaneling new juries in further litigation.

 

Senator Care:

Was there any discussion on that subject in the other House? It would seem to me, for example you talked about civil cases. You have a civil trial, a tort case, and the jury comes back and awards compensatory damages, but is hung on punitive damages. Then the issue arises, well are we going to have to have a trial to know who, or a trial on the punitive phase? The problem with that is, you have a jury which comes in to just try the punitive phase and is without the benefit of the ambiance of the original trial. I do not know if you had a second panel that would come in; what would they look at? What would be the basis of their making that determination? They had not sat through the trial; they do not know. I do not know how that would work.

 

I agree, Senator, that is very problematic because as soon as you bring in another jury not having the perspective of the trial jury, that is why it is important that the trial jury be the jury that has that say. If they cannot be unanimous, we should not keep trying for the death penalty because as you say, you bring in a new jury, cold, and you are going to have to retry much of the case, in order to give the penalty phase any context. It is never going to be the same as the original trial. In terms of fairness, and in terms of having a resolution of the case that is for less than death, when there is doubt in the sentence, this proposal serves both those purposes.

 

Senator Care:

Tell me about the information you want to gather. You could have bias in the street, the cop, maybe bias during the investigation, perhaps bias in the prosecutor’s office. A majority of the judges in the Eighth Judicial District are people I knew before they went to the bench. I am loath to suggest there might be some bias there, but just assuming there is for the moment, what would you do with all of the information that you want to gather? It would ultimately go to the Nevada Supreme Court who would then turn it over to the Legislative Counsel Bureau (LCB). What would you expect the LCB to do with the information after that?

 

Mr. Pescetta:

For our purposes, it is completely sufficient that it is maintained and that we have access to it. Ultimately, its use is going to depend on litigants or private groups. For instance, before it became defunct due to lack of funding we did have a task force on racial and economic bias in the justice system. Such a group would have been interested in taking data and analyzing it to see if there were patterns suggesting bias or patterns explaining the disparities we perceive.

 

As a litigant and as an attorney for litigants in capital cases, I would be getting that information and analyzing it myself to see if I had a claim that any particular decision was or could have been motivated by some sort of bias. In order for that kind of claim to be made, we have to identify the individuals who participated in the decision-making. We have to show probable bias played a role in the charging or negotiating decisions. Litigants would employ most of the data. However, The Grant Sawyer Center for Justice Studies might be interested in a project to analyze the data. Other private bodies such as the American Civil Liberties Union (ACLU) and the National Association for the Advancement of Colored People (NAACP) may also be involved. At least we would have the data. At least we would be able to make a start at determining whether or not something is going on suggesting bias as opposed to having innocent explanations.

 

JoNell Thomas, Attorney:

I am an attorney in private practice. I primarily do appellate and post-conviction work although I was counsel in a recent case where there was a hung jury. I concur in everything Mr. Pescetta had to say and he was very thorough. I offer my support in favor of A.B. 13.

 

Richard L. Siegel, Ph.D., Lobbyist, American Civil Liberties Union of Nevada, Human Services Network:

We strongly support A.B. 13 in its present form. I hope we do not get involved in a hang-up over an amendment. The main reason I am here is to talk about the need for a study; I have reviewed studies from Connecticut, Maryland, and Illinois. They had the money and the opportunity to be much more thorough than was our death penalty study. We need a thorough study of the points alluded to by Mr. Pescetta. We do not have on the record the kinds of statements Mr. Pescetta made about the identity of the victims in relationship to the identity of the perpetrators. We do not have on the record the identities of all who were involved in the decision-making process. The federal courts have said we have to have this kind of information in order to properly review death penalty cases. I sincerely hope we have the whole body of the data collection. I do not think of that so much as in terms of litigation issues, but as educational issues. The public, including everybody in this room, needs to be aware that virtually never has a death penalty been given on a case where there was a white perpetrator and a black victim, and a lot of minds would be changed on the death penalty.

 

I allude also to a point Senator Care made about not knowing any judges who are biased. We know bias is systemic, not individual. We do not go around saying this or that judge is biased. We say the system has institutional bias. From the very youngest ages with black defendants, who on the average do not have the same kind of homes to go back to and are not given the same choices in terms of custodial care that white young people are given, is the kind of bias that proceeds through the system.

 

There are two profound myths about our judicial and criminal justice systems. One, it is nonpolitical and the other myth is it is nonracial. It is neither nonracial nor is it nonpolitical. We have to recognize the realities of those points.

 

There is some suggestion from the material we have seen today and from earlier testimony that there are district attorney offices who would like to continue with three-judge panels. I hope that is behind us because it would be a crapshoot for the State of Nevada to proceed with the use of three-judge panels at $2 million when they lose a case. The State of Nevada cannot afford that kind of crapshoot. Just as it was in terms of mental retardation, the U.S. Supreme Court is determined to end the role of judges as they presently exist in terms of death penalties.

 

Finally, concerning the second jury idea, I remind everybody here we are first in the country in death penalties per capita and people sitting on death row per capita. We do not need a second shot at a death penalty in order to do anything but to intensify that rather ignominious situation.

 

Nancy Hart, Lobbyist, Nevada Coalition Against the Death Penalty:

I am here testifying in my private capacity and not as a deputy attorney general. I am here on behalf of Amnesty International in Nevada and am also representing the Nevada Coalition Against the Death Penalty. We strongly support A.B. 13 as it is written.

 

Concerns about racial discrimination in Nevada’s death penalty must be addressed. This Legislature has not been asked to consider anything enormous like a racial justice act or proportionality review. The provisions in this bill governing data gathering is a small, but very important step toward being able to meaningfully assess the impact of race in our death penalty sentences. In the Assembly hearing, the district attorneys expressed no opposition to the provisions in this part of the bill and there has been no change in the language so, frankly, I am somewhat surprised to see they are now coming forward with proposed amendments. They are proposing amendments at this very late date that go to the core of what data is needed in order to evaluate concerns about racial bias. As far as any burden on the prosecution, they testify in the Assembly that this information was already available in the information they retain in their files and it was not expressed as a concern. Other states have adopted similar provisions so this is not a novel thing to do. It is a small but important step we need to take, if we are going to address concerns about racial bias.

 

With respect to three-judge panels, none of this concern came up during the study committee on the death penalty, which met for six sessions for a period of 10 months and gave a great deal of consideration to this issue and many others. None of the alternatives being proposed today came up during that study when there was certainly ample time and opportunity to explore alternatives to three-judge panels even though the U.S. Supreme Court had not ruled on that matter at that time.

 

Ms. Hart:

The Ring decision is fundamentally about a defendant’s Sixth Amendment right to a jury trial. The district attorney will be asking you to consider giving the defendants the choice between a new jury or a three-judge panel when the defendant’s first sentencing jury cannot reach a decision or hangs or when the defendant pleads guilty. In light of Ring, why do the prosecutors want to preserve the three-judge panels at all? Unlike a jury, three-judge panels are not the conscience of the jury, because by definition they come from three different parts of the State. Also, they are elected in three different judicial districts, which adds an element of politics that is simply not present in a jury. The prosecutors will suggest the evidence less emotionally affects judges because they see it or hear it more often and have more experience than a jury in listening to the evidence in some kind of detached manner. Perhaps they might even be more lenient is the suggestion. But there is no evidence that this detachment is either true or beneficial to defendants. Because judges in Nevada are elected, they are subject to local politics including death-penalty politics and that is just a fact.

 

Why do the prosecutors want to preserve the three-judge panels at all by offering this choice, a choice the defense part does not support? In no other setting in the criminal justice setting do we give the defendant such a choice. Why here? Because statistically they impose the death penalty more often, 75 to 80 percent of the time, because prosecutors win more in front of three-judge panels, and that is why they want it.

 

The choice the prosecutors propose is completely illusory. Given the statistics, no defendant would logically choose a three-judge panel yet we know that some will. Such a choice as the default will only lead to more appeals and more litigation. Any proposal to provide the defendant a choice should be rejected. While the vote in the full Assembly was somewhat divided, I can assure you there was broad consensus on the fact that the three-judge panels should be eliminated and the split vote arose because there were concerns about the default provision.

 

Ms. Hart:

The prosecutors will say you should change the default provision and make it different. But the default provision before you, A.B. 13, is sound and you should keep it because of fairness, cost-effectiveness, and finality. Regarding fairness, the State should put on its case, give it its best shot to convince the jury regarding the sentence and if all 12 jurors cannot agree, there is certainly some doubt about whether the death penalty is an appropriate sentence. The prosecution should not get a second or third chance at what one might call jury shopping, just because it cannot convince the first jury. The first jury heard the entire guilt and penalty phases and was already death-qualified to exclude any jurors who could not impose a death sentence. The prosecution had the first and the last word in argument at the penalty phase and the jury was as primed as any jury could be to reach a sentencing decision. If, with all of that, the jury cannot reach a decision, the fair thing to do is to have the trial judge impose a sentence of life without eligibility for parole. You should reject any notion that a holdout juror somehow justifies a second chance with a new jury. A jury is a jury, and a jury’s decision or indecision should be respected.

 

Secondly, keeping the default provision is cost-effective. Having the trial judge impose a sentence of life without possibility of parole is cost-effective. Impaneling one or more new juries and litigating the penalty phase over again is extremely expensive. In addition to the costs of impaneling a new jury and litigating the penalty phase itself, which would have costs for counsel, witnesses, experts, and the judges, there would be the added costs of extra appeals and habeas proceedings since each penalty phase would present unique and additional appellate issues.

 

Finally, using the default process brings finality. There is much said about the never-ending process involved in capital cases. The default-sentencing provision in the bill, as it is now, effectively ends the case without resorting to further proceedings. Although there will be appeals from the trial and the sentence, the default brings a measure of finality to the case without requiring a victim’s family members and witnesses to go through the penalty phase over and over again. Please reject any proposals to alter the default sentencing in the bill.

 

Senator Washington:

My concern would be with all of the expert witnesses and the forensics. Sometimes cases are very technical in nature and jurors who may not be experts in those fields or with dealing with their own common sense may not understand all the intricate parts that have made up the trial. They may be lost and unable to make a decision. In those cases a three-judge panel may be able to cipher through all of the information, the forensics, and the whole nine yards to come up with a better conclusion. What is your point and what is your position?

 

Ms. Hart:

As the bill is written, a hung jury would not go to a three-judge panel, it would go to the default sentence of a life without possibility of parole. With respect to your question, it is an appropriate thing. If a jury for some reason has so much expert testimony and technical difficulties assessing all of the information that it cannot reach a decision, and I do not know if that is why juries cannot reach decisions, certainly the trial judge in that case could make that assessment and would be able to impose a sentence if the jury did hang. I do not believe a three‑judge panel is any more able to wade through those complicated issues than the trial judge. The appropriate person is the trial judge who has been hearing all of the information, and who probably is in the best position to either help answer questions the jury might have or if they are so confused they cannot reach a decision, then the trial judge is the appropriate person to impose sentence.

 

Dr. Siegel:

In the Ring case, the U.S. Supreme Court said the jury must be the tryer of fact. If we move to a situation where the judge becomes the tryer of fact we will have cases systematically overruled by the U.S. Supreme Court.

 

Jan Gilbert, Lobbyist, Nevadans for Quality Health Care, and Progressive Leadership Alliance of Nevada:

I am here representing the Progressive Leadership Alliance of Nevada. Our group is a 45-member group. During the interim we followed the interim study and approved of its recommendations and we would like to urge you to support both of the bills before you today.

R. Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association/Las Vegas:

I am here on behalf of the Nevada District Attorneys’ Association. What a beautiful system we have. God, I cannot believe it. We are creating, creating more and more work for us attorneys and god it is beautiful. To have people come up here and say, “Where has the prosecutor been the last 4 or 5 years?” We have been here everyday in 1999, 2001, 2002, and in 2003. Maybe they were not listening.

 

I am probably the one that says, “Give the poor damned defendant a choice.” You get a jury that comes back and hangs your guilt in 30 minutes, what in the heck do you think that jury is going to do with you at the sentencing phase? You get a legislative committee that is going to hang your position in 30 minutes, what are you going to do? Get up there and get run over a few more times? No! We might have visited the other side a little more extensively than we visited the other committee because maybe we are going to have a little more fair hearing with a three-judge panel as an option. It is Ben Graham’s option and you do not have to pass it. God only knows if you do not pass it there is going to be an appellate issue. You watch; this is going to be an appellate issue. This has been taken away from the jury. When you have a hanging jury, we would like another option. It is a decision.

 

Why does the three-judge panel generally come out with the death penalty more than a jury? It is because they get cases that are hung 90 percent of the time or more, 10 or 11 to 1 or 2 for death. So what in the heck are you going to expect? I am not a strong advocate of the death penalty. I respect my friends on the other side of the court. I respect the concern all of you have given this. Whatever you do it will be the right thing, and if it is not, somebody will be back here in 2005.

 

Senator Care:

One thing we have not talked about is the amendment on the Assembly side. The provision in section 2 giving the jury the option of imprisonment of a definite term of 50 years is not in the original bill. What does it do to existing law where you do not have a hung jury? Is that something with which we need to concern ourselves?

 

Mr. Graham:

I will defer to Mr. Peterson.

 

Chairman Amodei:

Were you involved in the study committee?

 

Mr. Graham:

We were and we had people testifying.

 

chairman Amodei:

What came out of the study committee in the original version of A.B. 13 is not what came out of the Judiciary committee. Can you give us any background in terms of how the study committee recommendation evolved in the Assembly Committee on Judiciary?

 

Mr. Graham:

That evolved a little bit more with input all the way around. Assemblyman Jason D. Geddes was here to express support for the original language. I will defer to Mr. Peterson and his presentation.

 

Senator Washington:

I was in the study during the interim and I know we dealt with the racial issue and the bias of the court in dealing with the death penalty. I am a little remiss or maybe I just forgot but I do not remember the language coming out being this explicit about the reporting requirements and I do not remember any recommendations. Was this language added on the Assembly side or was this actually a part of the bill?

 

Mr. Graham:

Mr. Peterson is here with me and I would like to defer these questions to Mr. Peterson.

 

Clark Peterson, Chief Deputy District Attorney, Office of the District Attorney, Clark County:

Like Mr. Pescetta and Ms. Hart, I can provide some inside the courtroom information to this body to help with some practical issues arising as a part of this legislation. We are generally in support of this legislation. The three-judge panel as it exists now has to change. We are thankful for all of the hard work on in both Houses and all the prior work regarding this topic. Additionally, I am a big fan of the Illinois State study regarding the death penalty. It was excellent. If we are going to impose the most serious punishment, we need to open the windows and let the light in and see how things are really working.

 

The problem is that you get some sort of a bugaboo statistics that scare people. A greater analysis of the issue is going to lead us to understand some of the statistics people throw around to shape the debate. In general, we do not oppose the keeping of important records to help determine systemic bias, if there is any. The Illinois commission has numbers very similar to ours in Nevada and they found there is no racial prejudice against the defendant regardless of the person’s race. They made that specific finding. I submit to this body that we should not expect capital murders to reflect America. To the extent there are differences, it is going to take someone a lot smarter than me to explain why those differences exist. We should not expect the death-row population to mirror the population at large. These are very unique, very individual types of crimes with varying circumstances.

 

In my last appearance I provided you with U.S. Department of Justice statistics regarding the death penalty. What you will find is one of the greatest correlations concerns people who have prior crimes of violence and people who have committed more than one murder, et cetera. The Illinois study finds the same thing. Those are the guiding principles leading to when someone gets the death penalty as opposed to not getting the death penalty.

 

It is often cited Nevada has the highest per capita population on death row. I find that to be an interesting statistic. What does that really mean? Does that mean that is somehow bad? I do not quite understand that number. Nearly 50 percent of our death-row inmates are not originally Nevada residents. They came from other states to commit their crimes here. To the extent that number is high does not take into effect the unique transient nature of Las Vegas, in particular, and Nevada, in general, the population and the growth rate of Nevada. I ask the body not to be frightened by that number that is often waved around. When you look beneath the surface you see something different than to what is initially eluded.

 

Mr. Peterson:

I am going to talk quickly about the three-judge panel procedure, which has to change. I provided, at the Assembly side, my idea, which was choice (Exhibit C). Though Ms. Hart paints it as a sort of evil plan by the prosecutors to get in front of more death-prone bodies, that is not my intention. I am concerned I am going to have to litigate these matters and there are going to be claims in a guilty-plea situation saying, “I wanted to have gone to a three-judge panel.”

 

We hear that Ring said judges cannot do sentencing. That is not true. Judges cannot do death-penalty sentencing when a finding of fact needs to be made and after a jury trial. Our Nevada Supreme Court has held, and it is consistent with the United States Supreme Court case law, you can have a three-judge panel after a guilty plea. Why? Because the Ring decision is based on the right to trial. When a person pleads guilty they waive that right.

 

The reason I propose choice is because it is the position of the Clark County district attorney’s office that a death case is a death case. To us it does not matter if we try the case in front of a jury or if we try it in front of a three-judge panel. However, if a defendant feels they are going to get a fairer shake in front of one body or another, let them chose, it is fine with us. The reason I propose this is because in the real world we have seen cases where the defendant is in front of a judge he likes because that judge has given him favorable rulings throughout the trial, but the jury comes back in 30 minutes with first degree-murder. I guarantee that defendant is sitting there saying, “Boy, if I could have this judge be involved in my sentencing decision as opposed to that jury, which came back in 30 minutes.” That happens. That defendant may want the choice to go to a three-judge panel. It does not matter to me.

 

If you do not adopt the proposal I outlined about choice, if you whole-heartedly do away with the three-judge panel, that works too. The choice solution is more constitutional and would prevent some types of challenges. If you wholesale do away with the three-judge panel, that is an acceptable solution as well. We are discussing two acceptable solutions; one is my preference. I will leave it to this committee and to the Legislature in general to decide which one is more appropriate. I am not trying to forum shop to maintain three-judge panels. We would see a challenge and time will bear out what happens.

 

Mr. Peterson:

I do want to talk about the default to life, the life without provision. Mr. Pescetta indicated a large number of death-penalty states have that provision. There is a famous quote, “And now for the rest of the story.” Most jurisdictions do not provide the sentencing structures we have in Nevada. Nevada provides, quite liberally, for death, life without, life with the possibility of parole, and a minimum term of years, 50 years with a minimum of 20. For first-degree murder, very few jurisdictions provide anything other than the two choices of death or life without. In that type of a situation, is it uncommon that a default provision would occur to life without? Of course not. Is that default appropriate in the unique Nevada situation?

 

There are two instances which are going to cause problems with the default provision. Ms. Thomas, who is present in Las Vegas, handled the Dorian Daniel case. The case hung up in penalty and went to a three-judge panel. Even though the record says something different, it always has been Ms. Thomas’s contention that a large portion of the penalty jury wanted life with the possibility of parole. If we adopt the default provision proposed in the current legislation and we have a situation like Ms. Thomas’s Dorian Daniel case where the penalty jury hangs in favor of life with the possibility and the default provision defaults to life without, all of a sudden she is going to complain she did not get a second shot at a penalty jury to convince them of life with the possibility of parole.

 

You are hearing defense attorneys line up in favor of it today but they are going to line up in opposition on appeal tomorrow when the default provision is imposed and they say, “Wait a minute, we wanted a shot at life with and no, we did not get that and we think the jury would have given it to us.” Similarly, it will occur for the State side. I tried a capital case that hung up 11 to 1 for the death penalty. The Donte Johnson case hung up on 11 to 1 in favor of death. Another recent case in Clark County hung up 11 to 1 and then a compromise decision was reached. The evidence is that the hang was very severe and in favor of death.

 

I have heard persons say the rogue juror or the one holdout is a myth. As a practitioner who has seen it, nothing could be further from the truth. It does occur. I would request this committee do one of two things. Simply say, as I have proposed, the court shall impanel a new jury pursuant to section 1 of the act to determine the sentence. Sort of like, we can retry a case for guilt and there is no limit. In fact, I have taken a defendant to trial three times. It was not a murder case; it was a sexual assault case. There is no limit on the number of times we can take someone to trial. There is, however, a reasonable limit. I negotiated that case. It got out of control. The discretion of the individuals stepped in and resolved the matter. If we can have a person face a conviction numerous times on retrial, when there is a hung jury for guilt, the same logic applies at the penalty phase.

 

Mr. Peterson:

If this body does not wish to do that, I would ask you to simply insert the language from the original version of A.B. 13 that was changed in the Assembly Committee on Judiciary. The original version of A.B. 13 said, “If the jury cannot reach a decision, the court shall sentence the defendant to life without the possibility of parole or impanel a new jury to determine the sentence.” This gives discretion to the district court. When will the district court use that discretion? In the Dorian Daniel case with Ms. Thomas, when she says, “Judge, I really think they were considering life with the possible of parole,” maybe the judge gives her a new sentencing jury. The Donte Johnson case hung up 11 to 1 in favor of death and the record was reasonably clear a juror changed his or her mind on her or his feeling on the death penalty. In jury selection she or he said they could consider all punishments and then changed their mind and could not consider death in that extreme of a case. This means that juror would have been removed for cause or would have been preemptively challenged by the State and only changed their mind later. In that case, the judge could appropriately grant a new sentencing jury.

 

I would submit to this body to use either one of my two suggestions, either to simply impanel a new jury at all times or give the discretion to the court to, in most cases, impose life without the possibility of parole. I am not going to squawk at an 11 to 1 case, or a 10 to 2 case if the judge decides, ”No Mr. Peterson, I am not going to give you a new sentencing jury, I am going to default to life without the possibility of parole.” However, in a Donte Johnson type situation, I believe it is fair. In a Dorian Daniel situation I think it is fair for the defendant as well to be able to request of the court a new sentencing jury in those types of cases.

 

When I hear comments saying we are improper in our suggestions of the venues we want to go before to get our sentences, I hope this body sees that is not my intent at all. If we are changing statute to cure constitutional problems, I want one that does not simply create another problem. Using the original language is the most constitutional way to do this or the blanket default provision will be challenged.

 

Senator Nolan:

Under your proposal, if we end up with a second hung jury, what are the current options available and what would you propose those to be?

 

Mr. Peterson:

I made two proposals, one being that we simply keep re-impaneling or perhaps the second proposal is more up your alley if it answers that concern. I cannot imagine a judge who gives us a second chance considering the sentence being petitioned to do it yet again. As a practical matter, those cases for the most part negotiate. I negotiated a case because I did not want to put the victim’s family members through another penalty-phase trial. We used our discretion as prosecutors to negotiate the case. He took life without the possibility of parole, et cetera. Frequently, the State will make an offer after a hung sentence. The reason we go to a three-judge panel or to another body is because the defendant does not want to. Under the first alternative we would impanel a new jury but if you are concerned about this repeating then perhaps the second alternative is more to your liking.

 

Senator Nolan:

My concern is continually shopping until you get a jury that makes a decision in favor of the prosecution or the death penalty and having the opportunity to continue to do that. We talk about cost and I have always contended that cost really should not be a factor in justice. It is funny when you talk about cost on the prosecution side. They do not have a problem asking us to put more money and resources into prosecution and the defense does not either until cost becomes a factor, not in their favor.

 

In any case there is a reality. If you are impaneling jury after jury and they are reaching the same conclusion, one where they just cannot come to a solid conclusion, they get hung, what would be the problem if, after a second jury, it does default? If you have impaneled two juries, you have put the defense and the prosecution through this whole process twice and they have reached the same conclusion with two sets of people, why not now say, listen, the chance of having this happen a third time is just very probable, why can we not default at that point?

 

Mr. Peterson:

I understand that dilemma. In Nevada the problem is we have sentences less than life without the possibility of parole. At what point is a default provision fair? If it did default to life without the possibility of parole, I guarantee you, Ms. Thomas or whoever a defendant’s attorney is, would be saying it was unfair not to give another jury. Discretion steps in and we resolve a case one way or the other. While I appreciate your concern, I do not see it as a reality. We dislike having to do second-penalty phases. There is a cost to the victim’s family. My concern is, I am the guy who is going to have to write and litigate appeals and I have a personal interest in making sure the provision we pass does not allow situations to result in another appellate issue. To me that is problematic.

 

Senator Care:

I am having a tough time understanding the sort of jury instruction you give to the second jury. Something like, “Ladies and gentlemen, the defendant here has been judged guilty of the crime of murder therefore you are not to allow any doubts as to his guilt or innocence affect your deliberations.” Maybe I am off base, but I do not know how you get a second jury focused on the penalty phase when they have not had the benefit of the testimony and the emotion, et cetera. Could you address this a little bit?

 

Mr. Peterson:

Let me tell you how it works now in front of the three-judge panel, our current procedure. If we hang at the penalty phase and we would go before the three‑judge panel, it would be the same as if we went in front of a new jury. What we generally do is put on a limited version of the case. Neither the initial penalty jury nor a newly impaneled penalty jury can consider what they call lingering doubt, which is not appropriate for any jury at sentencing phase. Even the initial jury has to put aside any thought this might not be the person. Lingering doubt is not allowed in the jury’s deliberations. Even the initial jury must presume guilt and the question is penalty.

 

We normally would get together with the defense and agree on a limited recap of the initial trial. We call the initial detective who talks about the crime scene and any interviews. Usually we craft stipulations and, in all candor, because this summary of the guilt phase is much shorter and in less-impact detail than in initial trial, it works vastly in favor of the defendant because we do not linger as long on gory photos and all of the things that go along with the guilt-phase case. In the guilt phase, it is very persuasive to go day by day, building guilt upon guilt. We, the prosecutor, lose that when we go before a new sentencing jury and summarize the guilt-phase portion of the trial to the three-judge panel or to the new jury. Normally the three-judge panel has read the trial record. In front of the new jury we would do a slightly expanded version of what we do now but that is only to the extent that the guilt phase evidence is relevant to the sentencing procedures. Usually the nature of the crime is something that is useful for the penalty jury to consider when considering what sentence is appropriate. A lot of times we litigate in guilt a number of issues that have nothing to do with the murderer and those issues would be streamlined and not presented to the new penalty jury.

 

Senator Care:

Jurors do not necessarily pay any attention to, or understand jury instructions, or misapply them. The natural thing for a second jury for a penalty phase only is to ask themselves if the defendant committed the crime. They are going to be told the defendant committed the crime and there has been a conviction but they are still going to wonder if the defendant is guilty; that might linger for a while. Your testimony points out that is this is a fairly complex bill. Since this bill is exempt, I would like to consider it for a while.

 

Mr. Peterson:

In going back to the three-judge panel point, you have made an excellent point. Having a new penalty jury also favors the defendant because those jurors were not involved personally in the finding of guilt. In addition, because they do not have the same moral investment the first jury did in finding guilt, they may be more likely to consider lingering doubt even though they have been instructed not to do so. Additionally, if a trial has complex expert testimony or if the mitigation evidence at penalty has complex, psychological evidence or evidence of that nature, it may be the defendant’s belief that a panel of judges can more appropriately digest evidence than a panel of jurors who may be offended by a defendant’s behavior and more likely to impose death. This is why I prefer choice to total abolition.

 

Senator Washington:

If the trial is so complex and the information is far above the comprehension of the jurors they may have a sense to pronounce judgment or during the penalty to waiver because they cannot decide whether or not they can comprehend the information that has been given to them. You then have a possibility of hanging up the jury and my sense would be the three-judge panel would be able to waiver through or decipher or work through that technical information to determine whether the sentence should be life or death.

You indicated three-judge panels were unconstitutional, but the Nevada Supreme Court found it to be constitutional. The constitutionality question can go either way, but we have had cases tried and sentenced with a three‑judge panel.

 

Mr. Peterson:

There is not doubt if a defendant goes to a jury trial, a jury must consider the fact-finding issues regarding the death penalty. After a jury trial we cannot have a three-judge panel and that is undisputable case law. The issue is when a defendant waives his right to a jury trial, which is what all of these rights are based on, and pleads guilty. Our Nevada Supreme Court in Colwell v. State [118 Nev. Adv. Op. No. 80 (2002)], a recent case after Ring, considered Ring and said, “Well, because he has pled guilty, he has waived his Sixth Amendment right, therefore a three-judge panel is appropriate.” The question is whether this body finds there is a use for the three-judge panel in situations where it is constitutional. One way to make it constitutional would be if a defendant chooses it. There is nothing more constitutional than the defendant choosing to do something. In some situations it may be appropriate. I am a huge believer in the jury system and that is why I like to send things to juries. I like juries to make those types of determinations. Jurors can sort through complex information. It does not really matter what I believe, it matters what the defendant believes. That is why I propose choice because if the defendant believes a three-judge panel could better understand his defense than can 12 citizens, let him have it. Whichever way he thinks is fair.

 

Senator Washington:

In your amendment on choices, was your proposed language to allow the defendant to make the decision or that choice for himself?

 

Mr. Peterson:

Absolutely, it is our position he should be allowed to make that choice. He does not even have to choose up front. If after he goes to trial, he is convicted by his jury and then wants a three-judge panel, great. If he wants to plead guilty and have a three-judge panel, great. If he wants to plead guilty and have a jury, great. If his case gets remanded on appeal and he was sentenced by a jury and now he wants a three-judge panel, great. It is his decision. We are not here to forum shop. The question is, where does the defendant think he gets a fairer shake? If he thinks three judges are going to return death verdicts more often than not, he is not going to choose it then. However, if he feels he really likes his judge, who he feels has been lenient all throughout his case and the jury returns a verdict in the blink of an eye, he may well want to go in front of a sentencing three-judge panel.

 

Senator Washington:

Or the other choice would be to impanel a new jury?

 

Mr. Peterson:

Correct.

 

Senator Washington:

Or take the chance of having life without the possibility of parole?

 

Mr. Peterson:

Yes, depending on how this body enacts the default provision.

 

Senator Wiener:

There is language that looks like it was added in section 2 concerning imprisonment for a definite term of 50 years. You mentioned earlier the 20 to 50. Does the added word definite mean it would be 50?

 

Mr. Peterson:

I noticed that in the reprint as well, and I am not quite sure where it came from. The Assembly Judiciary made that change; I do not recall discussing it. I appeared at the Assembly to discuss this bill and I do not recall us discussing changing a punishment.

 

This does not really change much. The current language is a definite term of 50 years with parole eligibility beginning after 20 years. This now says imprisonment for a definite 50 years because the minimum cannot be more than 40 percent of the maximum. This still is a 20 to 50 term. I am concerned it would allow the district court to impose something less than that. I cannot tell you the intent behind that change. I find it a strange change and would object to any change that changes 20 to 50 to something else or something less. All this is trying to do is say a definite term of 50 meaning parole eligibility begins after 20. I was not involved in that process and was surprised by that change.

 

I would like to talk about record keeping. Studying this important and serious aspect of our criminal justice system is very important and I do not necessarily believe cost is a factor. It is certainly not a factor that I discuss and it is something that, while important, needs to be of lesser priority when we are dealing with something as important as the death penalty. My response always when a cost argument is raised regarding the death penalty is, “Well, right now it is expensive to look into things like the death penalty.  What if it was cheaper?” Would that all of a sudden justify the death penalty? There are some matters in which the cost has to be considered less important. I am not here to argue that this record keeping is a burden on the district attorney’s office. When I saw the draft of A.B. 13 sometime back, I went to our newly elected district attorney and said, “You know what? Some of this stuff is a really good idea. Whether they pass it or not, we need to start keeping and collecting some of this data. We have an interest in making sure justice is administered fairly and to the extent this data gathering allows us to determine, systemically, if justice is being done fairly, I do not have problem with the collection of it.”

 

Mr. Peterson:

A lot of this is very appropriate. Looking at the list of the things in section 6, it says we have to report the age, gender, and race of the defendant, great. Age, gender, and race of a codefendant or other person charged or suspected of having participated in the homicide, is generally good, but I will get back to this in a minute as there is a slight problem with it. The problem is the language “charged” or “suspected.” Defense attorneys suspect just about everyone of having committed a crime other than their particular client. In particular, “suspected” causes me concern with compliance. Unless a person is arrested or charged, we do not have the data on them. Let us say it is suspected Joey B. may have been involved and that is all we know. I cannot gather that data. I cannot comply in any meaningful way. I propose that we amend it so that that section reads, “or other person charged or arrested for participation in the crime,” because that is the only way we are going to able to have meaningful data to gather.

 

See, the age, gender, and race of the victim of the homicide is great, and data we have to gather. Paragraph (d) of subsection 2 of section 6 is the date of the homicide and any alleged related offence; I support that. The data filing of the information, wonderful. Paragraph (f), the name of each court in which the case was prosecuted, wonderful. Paragraph (g) is whether or not the prosecutor filed a notice of intent to seek death and if so, when the prosecutor filed it, that is great. Paragraph (h) is the final disposition of the case and whether or not it was tried to a jury, great. All of those things need to be gathered.

Before I go on to paragraphs (i) and (j), which are problematic for different reasons, I do want to talk about the limitation of this particular section. Currently, the bill applies to record keeping in all cases where there is a charge of murder or voluntary manslaughter. I propose we keep it in relation to murder cases. Voluntary manslaughter cases are not even close to the death penalty. I understand Mr. Pescetta’s argument that non-death cases need to be studied; that is true, but remember there are first-degree murder cases that are capital cases, and first-degree murder cases that are non-capital cases. We should collect data in all of those cases. We should also collect data in all second‑degree murder cases or what we call open murder cases. If a case is even remotely murder, we file it as murder. Voluntary manslaughter cases are an entirely different breed of case. I do not see a reason to collect data as to those. For the most part, voluntary manslaughter cases would be excluded from the following provision that says, “not voluntary manslaughter cases that involve motor vehicles.” Voluntary manslaughter cases are a different beast entirely than any case that would even be remotely capital-eligible. I would submit there is no need and there is a burden on us to gather this information. I am not going to say it is an impermissible burden. We are happy to do it; I have encouraged our office to start doing it already. However, to gather data on voluntary manslaughter cases does not really inform us in any way on the systemic bias. What we are trying to gather information for are the systemic bias assertions regarding the death penalty.

 

Senator Nolan:

When we look at the case where the woman caught her husband cheating on her and ran over him with her car, because it was a crime of passion, she was charged with second-degree murder. Even in many cases when those are charged with manslaughter, do we then lose the opportunity to ever collect that type of information where somebody actually takes a car and the prosecution may not have the case to put forward on a second-degree murder?

 

Mr. Peterson:

Under the proposed legislation, we would gather data on that case. That defendant was charged with murder. Regardless of the outcome, even if a case resolves to voluntary manslaughter, if the defendant is charged with murder, under this proposal, we would gather the data.

 

What we would not gather data on would be your very odd, voluntary manslaughter cases. They are generally traffic cases but sometimes they involve injuries to children resulting in death where it clearly was not an intentional act. Those types of cases are way different from what we would consider a capital murder case.

 

I did want to talk about paragraphs (i) and (j) of the reporting requirements. Paragraph (i) requires the race, ethnicity, and gender of each member of the jury to be recorded and I understand the importance of gathering this information. I can understand why people want information to analyze. My problem with this proposal is it requires me, as the prosecutor, to gather the information. That is a difficult and dangerous idea. Prosecutors are not allowed to use racial information in jury selection. It puts us in a difficult position when we have to gather information on jurors and potential jurors from possibly their self-reported racial information. It is very problematic. I do not have any problem with this body asking the district court to gather that information. That is a neutral body. It is just not proper for prosecutors to be concerned with the race of jurors. That information is not provided on the jury forms when I go to select a jury before a case and as a practical matter, how do I gather that? Do I have to ask the juror, “You know, potential juror, I am not certain what race you would self-report as, could you please tell me?” That is a horrible thing to have to do in jury selection and it is wildly improper, because all of a sudden now that is injected in the jury selection and challenges will be made. If this body feels this information is important to gather, which I agree that it is, ask the district court to collect it after the fact of the trial because jurors should have to, before a trial is heard, disclose this kind of information. It is their privacy right, it is their issue, it is their right to serve on the jury and they are going to feel there is discrimination if they are asked up front regarding this.

 

Senator McGinness:

What about asking for the race, ethnicity, and gender of the judge, the prosecutor, the defendant, and defending attorneys? If we are going to do everybody else, should we not include him or her?

 

Mr. Peterson:

I notice that was not in here as well. We are really starting to get far afield. I understand why an analyst would want the race of jurors regarding jury decision-making. They will want to find if there is any correlation. When we start asking for other information it becomes a reason why we should not be asking for that information. If this information is to be gathered, it should not be imposed on the prosecutor. Other neutral agencies are more appropriate gatherers of that information.

 

My other concern is with paragraph (j). If we remember the purpose of this information gathering is to find if there is systemic injustice, paragraph (j) wants me to list the names of prosecutors involved in decision-making. You have heard testimony indicating federal courts need names. What they need names for is for civil rights lawsuits. This provision is to enable persons to file individual civil rights lawsuits. It has nothing to do with collecting systemic data. The question is, does the State do something wrong? Is the system improper? Names of prosecutors allows for nuisance lawsuits and civil rights actions in federal court. If they feel things are going on that they want to litigate, there are discovery provisions they can follow. Reporting is being required to determine systemic injustice, not to scrutinize individual actions of individual prosecutors.

 

I ask this body to amend the initial portion of paragraph (6) so it limits it to murder cases and not voluntary manslaughter cases. In paragraph b, persons charged or suspected should be changed to persons charged or arrested since I cannot gather data on suspects. Omit paragraphs (i) and (j), or in the alternative, I request it to be the district court rather than the prosecutor that gathers the information.

 

Senator Washington:

I looked at paragraph (i) and I appreciate your compromise with having the district court take the information concerning the jurors. From my perspective, as a possible potential juror, you inquired about my race and my ethnicity, I would tell you to take a flying leap because I would not want to be on your panel. I do not think it is pertinent to the case. It is difficult to get anybody to serve on a jury anyway. If you send me a little card and you inquire about my race and gender, I do not want to participate. I am not the only one who thinks like this. I would just delete the whole section.

 

Mr. Peterson:

Senator, in my very opening comments I was hoping to share with you practical observations. What you just said is exactly why I am here talking to you today, because that is a practical consideration. Paragraph (i) is a big danger. Jurors are offended by those questions. They feel they should not have to provide that information because they are to serve as jurors, not to be questioned about these sorts of things. However, I am trying to see both sides of the fence and I can see why the defense wants to have this information. In some instances, I would not mind having the information.

 

Senator Washington:

I am not disagreeing with the fact the defense wants the information, I am just looking at it from the practical standpoint as being selected as a juror and you are inquiring of my ethnicity. You are right. I am offended by the question.

 

Senator Wiener:

I am seeing a verb-tense difference. If the case was tried before a jury, this data is gathered after and would not be used in jury selection. I do not see it as part and parcel with what is going on in your dialogue right now.

 

Mr. Peterson:

The stage we gather information about jurors happens at two points. One, when they fill out their initial response card and two, during jury selection. There is no mechanism to officially poll jurors regarding their race at the end of a case. We do not speak with jurors, the court says, “Thank you for your verdict, you are discharged.” We can speak with them in the jury room, but that does not lead to official recordings and at that point, they are done. If I ask them then, if they were going to tell me to talk a flying leap before trial, they are definitely going to tell me to take a flying leap after trial. I am concerned the information has to be recorded up front because there is no other time to do it. I guess the district could, after a verdict, could poll the jury of how they self-report their race. I see so many problems. It is offensive to jurors, and it is an invasion of their privacy, but I understand why the data needs to be gathered.

 

Senator Nolan:

Early on in your testimony, you indicated the death penalty, as far as juries are concerned, is weighted heavily by aggravating and mitigating circumstances as well as some predisposition to prior convictions. We are not gathering that information in a case-by-case basis. It seems to be very weighty information, which would be helpful. If you are trying to trend these things and we are going to try to benchmark this study, do you not think we should go back and establish the same type of information in a time period prior to when this is enacted so we can say this is really what the system was and how it looked prior to this being enacted and this is how it looks going forward?

 

Mr. Peterson:

I agree with you completely regarding aggravators and mitigators and similar things. My internal suggestion to our office is we track not only this information, but what aggravators were charged, what aggravators were found, whether or not there were multiple victims, whether or not mitigators were presented, what mitigators were found et cetera. All of that stuff is very important to record keeping. As far as going back, that is going to be very difficult. I have tried to do it and it is difficult. It could be done, but it is difficult.

 

Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney:

On behalf of the Nevada District Attorneys Association and the Washoe County district attorney’s office, Mr. Peterson has more than adequately stated our position and I would like to put our support on the record.

 

Chairman Amodei:

Seeing no more testimony we will close the hearing on A.B. 13, and open the hearing on A.B. 16.

 

Mr. Pescetta:

Assembly Bill 16 is the DNA testing bill. I am in the odd position of supporting a bill that has been both editorialized in favor of by the Las Vegas Review‑Journal and supported by Mr. Peterson. This provision is limited to capital cases and it is designed to provide a simple procedure for getting DNA testing when there is no other proceeding pending. At trial, or in the course of state or federal habeas proceedings, if there is DNA evidence that has not been subjected to testing, it is tested in the course of those proceedings. This plugs a hole where there is not anything pending. It is a simple petition that can be filed in the district court. The district court reviews whether there is any DNA evidence to be tested. The test is conducted, the results fall whichever way they do.

 

This is a bill that will be applied very seldom. It is important to have it in place for those cases where for whatever reason, there is not some other legal proceeding pending in which this can be obtained.

 

Mr. Peterson has submitted an opposition on amendment (Exhibit D), which is also sort of a support and amendment. I have reviewed the amendment, which provides for an appeal provision. The current state of the bill is the court directs the prosecutor to preserve the evidence. As Mr. Peterson points out, frequently evidence with any relevance may have been admitted at trial so it may be in possession of the clerk of the court. It may be in the possession of the police agencies. It may be in the possession of the prosecutor. The provision he suggests is acceptable in terms of identifying who has got what that may be subject to testing. He also proposes, in section 10, an appeal provision and I would support that.

 

With the amendments suggested by Mr. Peterson, I ask for the bill to be processed.

 

SENATOR TITUS MOVED TO AMEND AND DO PASS A.B. 16.

 

SENATOR WASHINGTON SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman Amodei:

With the discussion on A.B. 13, I will allow the committee members to consider, converse, discuss, whatever with the appropriate parties A.B. 13 as it exists or with the proposed amendments. We will now work session some items beginning with A.B. 475.

 

ASSEMBLY BILL 475 (1st Reprint): Makes various changes concerning providing health insurance for child pursuant to court order for support. (BDR 3‑1246)

 

Nicholas Anthony, Committee Policy Analyst:

Assembly Bill 475 was heard on May 13. It was brought forward by the Assembly Committee on Ways and Means on behalf of Mr. Sullivan from the Nevada Child Support Enforcement Program. There was no opposition or amendments offered to the bill. Mr. Sullivan testified this measure was brought forward to bring Nevada law into compliance with federal law and would satisfy Temporary Assistance to Needy Families requirements.

 

Chairman Amodei:

I had an inquiry from a constituent regarding a potential issue that might be germane to this bill.

 

Bradley Wilkinson, Committee Counsel:

Currently, the definition of gross monthly income, which is used in the determination of child support, includes all income received by a person who has an employer. The definition is slightly different for self-employed persons. It is all of the money the person receives. There is no deduction for retirement contributions. With State employees there are two kinds of retirement. There is employer-paid retirement in which the employee receives a lower gross monthly amount, and employee-paid retirement in which the employee receives a higher gross income but pays the contribution. That results in if an employee opts to pay retirement, that employee has a higher monthly gross income and therefore owes a higher obligation for child support. Conversely if the employee chooses the employer-paid retirement and has a lower gross monthly income the employee then pays a lower obligation of support for children.

 

Chairman Amodei:

Is there any appetite for attempting to fashion a change to the definition of gross monthly income in the context of A.B. 475? Hearing none, what is the pleasure of the committee?

 

SENATOR CARE MOVED TO DO PASS A.B. 475.

 

SENATOR WIENER SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman Amodei:

We have some concur, not concurs to go through beginning with S.B. 199 which was Senator McGinness’s legislation.

 

SENATE BILL 199 (3rd Reprint): Makes various changes concerning the sale, disposition, manufacture and possession of weapons. (BDR 15-331)

 

Senator McGinness:

We should concur. They took out some parts that had some concerns by gun dealers and they worked with Mr. Nadeau and Mr. Olsen. Assemblyman Lynn C. Hettrick put in a quirk about switchblade knives because there is a manufacturer who wants to come to Douglas County to make them and with the previous language they would not have been able to do that.

 

SENATOR MCGINNESS MOVED TO CONCUR WITH AMENDMENT NO. 699 TO S.B. 199.

 

SENATOR WASHINGTON SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman Amodei:

Senate Bill 297 was amended by Assembly Amendment No. 626. The date was changed.

 

SENATE BILL 297 (1st Reprint): Makes various changes relating to personal identifying information. (BDR 15-28)

 

Senator Wiener:

I move we concur. This change moves the date out as to when retailers need to comply. This is the identity theft bill. Retailers need to comply with removing the expiration date and including only up to the last five numbers of the credit card. This is to assist some of the small retailers who need more time to make the transition from their current credit card devices and satisfy the requirement in the law.

 

SENATOR WIENER MOVED TO CONCUR WITH AMENDMENT NO. 626 TO S.B. 297.

 

SENATOR WASHINGTON SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

Chairman Amodei:

Next is S.B. 317.

 

SENATE BILL 317 (2nd Reprint): Makes various changes relating to incarcerated persons. (BDR 34-594)

 

Senator Wiener:

I move we concur. This has had quite a bit of visibility in the media, much of it misunderstood. The Assembly Committee on Judiciary made a joint referral. There are two things that occurred with the bill. Section 8 which dealt with waivers for registration of inmates who would participate in post-secondary education was removed. There is still section 6 enabling the community college or the university system to provide courses, but there is no provision for waivers. If the inmates were to participate they would have to pay for it. At the request of Mr. Nadeau, on behalf of Washoe County, a section was added to deal with the overcrowding of jails and would allow the chief judge in the district court to determine, based on quite a substantial criteria list, who would be released if there is an overcrowding, otherwise consent decrees would be issued and they would lose control of their jail.

 

SENATOR WIENER MOVED TO CONCUR WITH AMENDMENT NO. 653 TO S.B. 317.

 

SENATOR CARE SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman Amodei:

Next is S.B. 204.

 

SENATE BILL 204 (2nd Reprint): Makes various changes concerning disclosure of certain information to purchasers, lessees and tenants of real property, manufactured homes, mobile homes and commercial coaches. (BDR3‑562)

 

This bill is from the City of North Las Vegas concerning methamphetamine lab cleanup. The Assembly has added Amendment No. 563 to S.B. 204 and what they have done in the amendment is to expand upon the language talking about manufactured homes. I have checked with the bill sponsors and they have no objections to the amendment and would appreciate if we agree with their recommendation to concur.

 

SENATOR WASHINGTON MOVED TO CONCUR WITH AMENDMENT NO. 563 TO S.B. 204.

 

SENATOR NOLAN SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman Amodei:

The final bill is S.B. 394, which is a Senate Committee on Judiciary bill.

 

The Assembly has added Amendment No. 676. The first amendment is at page 30 of the bill, which is the last page. It adds the word “optical” in the context of all those lines. Mr. Wilkinson do you know what safrole is? Also, it says amend section 29 on page 31 by deleting line 1. As near as I figure, the bill I have in front of me ends on page 30.

 

SENATE BILL 394 (1st Reprint): Revises various provisions relating to certain criminal statutes. (BDR 15-1026)

 

Mr. Wilkinson:

That sounds like Assemblyman Jason D. Geddes’ amendment. I am not a chemist.

 

Chairman Amodei:

Do you recall for whom we did this introduction?

 

James F. Nadeau, Lobbyist, Nevada Sheriffs and Chief’s Association/North, and Washoe County Sheriff’s Office:

Mr. Wilkinson is exactly correct. This is Assemblyman Geddes’ amendment. He said the optical thing was not needed, just isomers and all the other stuff. He went into a long lecture. He is the chemist and figured it all out.

 

Ms. Erickson:

We have no objection to the amendment.

 

Senator McGinness:

Technically, it says amend section 29, page 31 and there is no page 31.

 

Mr. Wilkinson:

The old bill must have had a page 31. The amendment reflects the bill as it existed originally.

 

Chairman Amodei:

We added a word and a subsection and cut down on the length of the bill?

 

Senator Washington:

We will not deliberate the sense of this bill, and by default will make a motion to concur.

 

SENATOR WASHINGTON MOVED TO CONCUR WITH AMENDMENT NO. 676 TO S.B. 394.

 

SENATOR TITUS SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman Amodei:

One final item; we have an update on A.B. 40, which was Assemblyman Oceguera’s regarding extending the period of limitations concerning a civil action.

 

ASSEMBLY BILL 40 (2nd Reprint): Extends period of limitations for commencing civil action after action has been dismissed under certain circumstances. (BDR 2-769)

 

We put on an amendment proposed by Senator Care, which changed 90 days to 30 days in section 1.

 

Senator Care:

This was the bill where a case was dismissed from federal court for subject matter jurisdiction, then the plaintiff may refile. The amendment shortens the period in which the action must be recommenced from 90 days to 30 days, which would be consistent with the federal rule. The amendment also makes it clear that any findings of fact or law in the federal matter would apply to be law of the case in State court action.

 

Chairman Amodei:

I will not bring this back to the committee for recommendation to recede or not recede. Senator Care may discuss this further with Assemblyman Oceguera. There being no further business to come before the committee, the meeting is adjourned until the call of the chair at floor session throughout the rest of the session.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Lora Nay,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Senator Mark E. Amodei, Chairman

 

 

DATE: