Nevada Panel votes to ban executing retarded criminals

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 first-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.