The Nevada Senate has sent Gov. Kenny Guinn a bill that would ban the
execution of mentally retarded criminals.

AB15, approved without debate Friday, brings the state into line with a
U.S. Supreme Court decision that mentally retarded people can't be
sentenced to death. Under the bill, the defense in a potential capital
case would have to file a pretrial motion to have a district court judge
declare the accused mentally retarded. 2 more measures changing capital
punishment laws are up for final passage in the Assembly on Tuesday.

If AB13 and AB16 are passed, they go to the Senate. AB13 would have
juries, rather than a panel of 3 judges, decide if a person who has
pleaded guilty to 1st-degree murder should be sentenced to death or life
in prison. If a jury is unable to reach a decision in a death penalty
case, the presiding judge would sentence the accused to life in prison
without possibility of parole.

AB16 would allow a person sentenced to death to request a DNA test.
The bill gives a judge the right to stay any execution until the analysis
of the genetic marker evidence is analyzed. In some cases in other states,
DNA evidence has exonerated people on death row. Another bill dealing with
capital cases already has gone to Guinn.

AB17 would raise the rate paid to court-appointed defense attorneys in
death penalty cases to $125 an hour.
The current rate is $75 an hour. The maximum fee allowed would be changed
to$20,000, up from the current$12,000.

Court-appointed attorneys in other criminal cases would be paid $100 an
hour, up from $75. The bill also requires that courts appoint a team of
lawyers, not just one, to represent defendants in death penalty cases.
(source: Associated Press)


CARSON CITY -- A Nevada Assembly panel voted Wednesday to eliminate three-judge sentencing panels in capital trials and to remove a judge's ability to impanel a new jury when the first one can't decide whether to impose a death sentence.
AB13, which moved on a 9-5 Judiciary Committee vote to the full Assembly, mandates that when there is a hung jury in a capital trial during the sentencing phase, the presiding judge will impose a no-parole life sentence.
As originally drafted by an interim study panel, in cases with a hung jury a judge could have imposed the no-parole life sentence or impaneled a new jury for sentencing.

But Judiciary Committee members decided that even if one juror in a capital case won't impose death, that's enough reason to spare the convicted person's life.

The measure stems from a U.S. Supreme Court ruling that three-judge panels are unconstitutional, and the bill eliminates sentencing by such a panel when a person pleads guilty to first-degree murder and the state seeks the death penalty. Judges instead would have to impanel a jury for sentencing when people plead guilty.

As passed, the bill also changes the order of arguments during a sentencing hearing so that defense attorneys get to make the final argument before the jury considers the sentence.

Under current law, prosecutors get to argue first and last during the sentencing phase, which Pescetta said gives the state a clear advantage during sentencing.

Source: Associated Press


A bill barring executions of mentally retarded Nevada criminals won approval Tuesday in the Assembly Judiciary Committee. AB15, now moving to the full Assembly, would bring Nevada into line with a U.S. Supreme Court ruling last year against executions of mentally retarded people convicted of capital crimes.

After a lengthy discussion regarding the process used by experts to determine someone's mental state, the committee decided on a combative approach. Under the bill, defense attorneys claiming their client is mentally retarded would have to make that client available to an expert chosen by the prosecution. Both sides would then make their arguments to
the trial judge.

Lawyers for the state and defense could cross-examine one another's witnesses. The hearing on mental retardation would parallel trial proceedings.

In selecting the approach, the committee rejected a proposal requiring that the court appoint a panel of experts to determine the accused's mental state. Proponents of the approved method said it's more in line with the ideals and practices of courts and trials.

"We don't have a justice system where judges get to pick witnesses," Assembly Majority Leader Barbara Buckley, D-Las Vegas, said. Kristin Erickson, of the Nevada District Attorneys' Association, said the proposal to let judges select the experts would help ensure a more accurate diagnosis of the defendant. "It's not an expert hunt," Erickson said.

Michael Pescetta, an assistant federal public defender who specializes in death penalty cases, said the approved process will probably affect only a few cases, and it's better than the one the committee rejected.

The committee also adopted a definition of mental retardation that's close to what's already found in Nevada statutes.

Current law defines retardation as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period." The change removes a threshold age of 18 in favor of "during the developmental period." Also removed from the bill was the presumption of retardation when a defendant has an IQ of 70 or below. Lawmakers said an IQ of 70 is the general threshold at which people are considered retarded, but the
score itself isn't the only factor in a diagnosis.

Aside from intellectual capacity, doctors look at how well people function in and understand their environment, and when their adaptive behavior and intellectual shortcomings began.

Another change limits the required procedures for determining mental retardation to cases in which the prosecution is seeking the death penalty. The original bill included all 1st-degree murder cases.

The Judiciary Committee also amended and approved AB17, which increases standards for defense counsel for people charged with a death-penalty eligible crime, and raises the pay rates for court-appointed attorneys to
represent indigents.

The approved measure provides that court-appointed defense for capital trials must include two attorneys, as well as any other experts needed to aid in the defense. Attorneys would also get a pay raise from the
counties from $75 per hour to $125 per hour for their service.

Both proposals came out of an interim legislative study on the death penalty.

House set to OK ban on executing retarded -- Maximum sentence under bill is life with no parole; hearings would determine who qualifies

A bill that would ban executing the mentally retarded and use hearings to determine who is and who isn't mentally retarded won key approval in the House on Tuesday.

Since the U.S. Supreme Court ruled last summer that states may no longer execute the mentally retarded, prosecutors, defense attorneys, judges and legislators have been grappling with how South Carolina should determine
who is and who isn't retarded.

Defense lawyers say at least 6 of the state's 71 death row inmates are mentally retarded.

Under the House bill, defendants determined to be mentally retarded before trial would face a maximum sentence of life in prison without the possibility of parole rather than death, said Rep. Jay Lucas, R-Darlington.

The bill provides no lesser sentences as an alternative, taking away some of a trial judge's authority in sentencing mentally retarded defendants, said Rep. Joe Neal, D-Richland. "The judge shouldn't be told he has only one choice that he can make," Neal said. "I have a problem with the Legislature dictating to the court and limiting its options. I think that's a mistake."

Other legislators thought life in prison was an appropriate sentence for someone convicted of murder even if the defendant were determined to be mentally retarded, Lucas said. "We're not talking about someone who's insane, who doesn't know right from wrong," he said.

The bill requires a life sentence for defendants who are determined to be mentally retarded during a pretrial hearing and subsequently convicted of murder. At the pretrial hearing, the judge would hear expert testimony and consider evidence of mental retardation. At least one expert must be a trained clinician with expertise in mental retardation. If a defendant is ruled not mentally retarded, the case would continue and the jury would not be told of the earlier proceedings.

During sentencing, however, the defense could present evidence of mental retardation to the jury, which could impose a 30-year sentence if it cannot rule out mental retardation beyond a reasonable doubt.

The bill requires a final approval, which is usually a perfunctory vote, before moving to the Senate for debate.

(source for both: Associated Press)

For those who would have thought that such a bill is not important, since the US Supreme Court's ruling (Atkins v. Virginia) on mental retardation has stated that it was unconstitutional to execute people with mental retardation, let's clarify this point with the help of Paula Bernstein from Death Penalty Center:

Although it would initially seem that a state would not need to pass a law banning something that the Supreme Court has already said is banned, it is actually quite important that Nevada pass such a bill. Although the Supreme Court said that states could not execute those with mental retardation, they did not specify how states should determine WHO decides if the inmate has MR, HOW that determination is made, or WHEN that determination is made. The bill is important, because it will set those guidelines. Paula Bernstein

Capital punishment foes urge elimination of aggravating factor.

Death penalty foes urged Nevada lawmakers Tuesday to eliminate an aggravating factor that prosecutors can cite in capital cases, saying it's vague and often used inappropriately.

At least one aggravating factor is necessary in a murder case for the imposition of a death sentence.

AB14 targets language that says it's an aggravating factor if "the murder was committed by a person who knowingly created a great risk of death to more than one person by means of a weapon, device or course of action which would normally be hazardous to the lives of more than one person."

Michael Pescetta, a deputy federal public defender, told the Assembly Judiciary Committee that district attorneys often aggressively prosecute murder cases using the aggravating factor that AB14 would erase.

Pescetta said the result is a broad pool of death-penalty eligible murder defendants, but the U.S. Supreme Court has ruled states must establish aggravating factors to narrow the pool of people eligible for death.

Washoe County District Attorney Daniel Greco argued against AB14, saying the aggravating factor gives prosecutors an essential tool they need to seek the death penalty in cases where it's appropriate, and when additional factors don't fit the case.

Greco also argued that the factor has been regularly challenged in the Nevada Supreme Court, and the court continually upholds it.

AB14 also would add a mitigating circumstance that the "defendant suffers from a mental illness or has a history of psychological disturbance."

Before a jury can sentence a person to death, it must determine that the aggravating factors outweigh the mitigating circumstances of the crime.

Another part of the bill would change the order of the presentation of evidence during the penalty phase of a capital case by allowing defense attorneys to have the final argument during a penalty hearing.

Philip Kohn, special public defender for Clark County, said the measure is about fairness.

"I can tell you that allowing the prosecution to go first and last in final argument is a tremendous, tremendous advantage for the prosecution," Kohn said.

Greco, however, argued that bill proponents were trying to put an emotional face on the issue by claiming the defense has the burden of proof in a capital sentencing hearing.

"The law is straightforward," Greco said. "The burden of proof is on the prosecution to prove that one or more aggravating circumstances exist."


A bill banning the execution of people under the age of 18 convicted of capital crimes was introduced Thursday in the Nevada Assembly.

Assemblywoman Chris Giunchigliani, D-Las Vegas, is sponsoring AB118, a proposal she also pushed in the 2001 legislative session but was unable to get out of the Assembly Judiciary Committee.

She's hoping for better success the second time around.

"It just says we will not execute young men and women under the age of 18,"Giunchigliani said." Instead, they would be sentenced to life without the possibility of parole."

Key to the argument, Giunchigliani said, is that people under the age of 18 are still growing physically and mentally, and their capacity to make decisions is not fully developed.

The proposal is not an effort to excuse their crimes, she said.

"Life without the possibility of parole is a worse sentence in my mind,"the assemblywoman said.

Courts can currently impose the death penalty on anyone who was 16 year old when they committed the crime.

There is now one man on Nevada's death row who was convicted as a juvenile. Michael Domingues was 16 in 1993 when he killed Arjin Pechpho, 24, and her 4-year-old son, Jonathan Smith, at their home in Las Vegas. Domingues lived next door.

The state Supreme Court rejected his appeal and the U.S. Supreme Court has declined to review his claim that executing those under age 18 violates an international treaty.
Assembly Minority Leader Lynn Hettrick, R-Gardnerville, said he is against the proposal, arguing that prosecutors and the courts have enough discretion to decide who the state should execute.

"To get the death penalty in this state you have to do a pretty heinous crime. People at age 16 are competent enough to drive cars and do a lot of other things like adults, and I guess that I have concerns that age is the only factor,"Hettrick said.

"We get too many things here done on absolutes and the same cookie-cutter size fits all,"he said.

Assemblywoman Sheila Leslie, D-Reno, agreed with Giunchigliani that the measure has a better chance this year. Leslie chaired an interim subcommittee that studied the death penalty and came one vote short of officially recommending the bill.

"I've found a great willingness to be open on this issue,"Leslie said.

She also noted that major reforms often take time and that the death penalty was rarely discussed during her first term in office in 1999.

Leslie agreed the development issue would play a key role in the argument.

"There's a reason we have a juvenile justice system. It's because juveniles aren't adults,"she said.

And another effort to ban executions of those who were juveniles when their crimes were committed also is expected, which should prove more controversial. The U.S. Supreme Court refused to take up this issue earlier this year. Nevada allows the death penalty to be imposed on teens as young as 16. An effort to change the law in 2001 failed.

"We're going to hit the ground running on the death penalty bills," said Assemblywoman Sheila Leslie, D-Reno. "But I don't think it's going to be a smooth process."

But it should still be less intense than in 2001, when a former state senator called unsuccessfully for a controversial moratorium on executions, and inmate Sebastian Bridges was executed for a Las Vegas murder.

Leslie, who served as chairwoman of an interim study of death penalty issues following the 2001 session, said a lower level of intensity on the subject may prove helpful as lawmakers consider the various proposals.

"It's a little less emotional, which I think is better," she said. "I'm hopeful it will be more deliberative."

But though lawmakers are obligated to change Nevada statute regarding the execution of the retarded and in the use of three-judge panels, no mandate exists concerning execution of juveniles.

Leslie said any effort to change the law will be a challenge, given the Washington, D.C.-area sniper case involving Lee Boyd Malvo, who is 17, and the recent slaying in Mesquite of 3-year-old Kristyanna Cowen, in which a 16-year-old girl has been implicated. Kristyanna's older half-sister was left paralyzed in the attack. Prosecutors have yet to decide whether to seek the death penalty against either of the two suspects in that case.

"The political climate is not great for this bill," she said. "Getting people to separate the horrible crime from the issue of whether we as a society should be executing juveniles is very difficult. Emotions may run high."

The ban on capital punishment for those under 18 just missed an endorsement from the interim study panel, and it failed because of the position of Sen. Joe Neal, D-North Las Vegas, a death penalty opponent. Neal said he would not vote for the ban on capital punishment for juvenile offenders because the vote could be misconstrued as support for the death penalty for adults.

Assemblywoman Chris Giunchigliani, D-Las Vegas, who sought the ban on capital punishment for those under 18 two years ago, said she will try again.

"We're not talking about releasing these people, we're talking about a sentence of life in prison," Giunchigliani said.

Of the 38 states that have the death penalty, 16 prohibit it for those who were under 18 when they committed their crimes. The federal government also bans capital punishment for juveniles.

Nevada has one such death row inmate. Michael Domingues was 16 in 1993 when he killed a woman and her 4-year-old son in Las Vegas when they returned home during a robbery.

Only one death sentence was imposed in 2002, in a Reno-area case. Also in 2002, two death sentences were reversed, one was commuted and two death row inmates died of natural causes.

The actual death row population declined by four in 2002, to 81 men and one woman. There has not been an execution in Nevada since Bridges was put to death by lethal injection in April 2001.

ILLINOIS EXAMPLE: Death penalty changes sought
Foes of Nevada system hope Ryan's commutations will affect Silver State debate

Nevada death penalty foes hope the dramatic emptying of Illinois' death row will help their efforts to change this state's capital punishment laws.

They say changes suggested by a study subcommittee already ensured extensive attention to the issue during the 2003 Nevada Legislature, and that debate should increase after former Illinois Gov. George Ryan announced Saturday that he had commuted the death sentences of all 167 condemned inmates in his state.

Calling the death penalty process "arbitrary and capricious, and therefore immoral," Ryan said recent studies raised questions about the how the death penalty was imposed. He cited problems with trials, sentencing, the appeals process and the state's "spectacular failure" to reform the system.

"The same things that Governor Ryan is talking about as being problematic in death penalty cases in his state are the same problems that our legislative subcommittee identified here," said Michael Pescetta, a deputy federal public defender who specializes in capital cases.
"To the extent that we have the same problems that Illinois has, I would hope ... the same or a greater degree of attention will be paid here," Pescetta said Tuesday.

Nevada has 84 men and one woman on death row. Pescetta said the count gives Nevada the highest per-capita rate in the nation, and he has seen many cases of sentencing disparities and other problems of the sort cited by the outgoing Illinois governor.

Before commuting the death sentences, Ryan had halted all executions in Illinois nearly three years ago after courts found that 13 death row inmates had been wrongly convicted there since capital punishment resumed in 1977.

Richard Siegel, head of the Nevada American Civil Liberties Union, said the Illinois action will help mobilize death penalty foes in Nevada and throughout the nation, and reflects a public opinion shift away from capital punishment.

"Politicians have lost their certainty that the death penalty is a winner in political terms," Siegel said. "The public and the politicians have been put off stride by the weight of evidence that the death penalty is too often inaccurate and arbitrary."

The Nevada study panel was chaired by Assemblywoman Sheila Leslie, D-Reno, who said that at a minimum the 2003 Legislature will have to bring state laws into line with last year's U.S. Supreme Court rulings against executions of mentally retarded people and limiting the use of judicial sentencing panels.

Leslie said she expects debate on the execution of juveniles "since we are one of just a handful of states that still have this law on the books." A bill to ban such executions is expected from Assemblywoman Chris Giunchigliani, D-Las Vegas.

Leslie's subcommittee also has recommended changes to prevent racial, gender or economic discrimination in capital cases, and to revise the aggravating and mitigating factors that are considered in such cases. Other recommendations would ensure condemned convicts can file post-conviction petitions requesting DNA analyses and evidence preservation.

"I think everyone in Nevada, whether you believe in the morality of the death penalty or not, would agree that justice demands fairness," Leslie said.

Assembly Judiciary Chairman Bernie Anderson, D-Sparks, said he expects Sen. Joe Neal, D-North Las Vegas, to again seek a moratorium on executions. Anderson's committee and its Senate counterpart also will review death penalty-related bills.

Anderson said the Illinois action will affect the Nevada debate.

"I don't see how you can leave it out," he said.

He said the proposals coming from Leslie's study subcommittee have to be considered if the majority of state lawmakers favor retaining capital punishment in Nevada. Otherwise, Anderson said legal challenges from condemned inmates would have a better chance of success "and we wouldn't have a death penalty statute."

Anderson also said that aside from the morality issues there's a question of finances, an important concern given the state's revenue shortage.

Death penalty opponents say a capital punishment case can average about $2 million in legal costs, compared with an average $1 million cost of imprisoning someone for life.
"It isn't just a moral question," he said. "It's a dollar question, too. The burden is going to be on the taxpayer to come up with all the dollars."

Whatever Nevada does with its death penalty laws, what occurred in Illinois can't occur here.
Sentence commutations are handled in Nevada by the state Pardons Board -- and the governor is one of nine people who serve on that panel. Guinn chairs the Pardons Board, whose other members include the state attorney general and all seven justices of the state Supreme Court.
Nevada's last execution was in April 2001, when Sebastian Bridges was executed after refusing to challenge his conviction for the murder of his estranged wife's lover.

Bridges' execution was Nevada's ninth since the U.S. Supreme Court allowed states to revive capital punishment in the mid-1970s. All but one of Nevada's executions have involved inmates who declined to appeal.

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