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House File 2

Partial Bill History

Bill Text

PAG LIN
  1  1    Section 1.  Section 13B.4, Code 1995, is amended by adding
  1  2 the following new subsection:
  1  3    NEW SUBSECTION.  6A.  The state public defender shall
  1  4 perform all of the following duties with respect to the
  1  5 appointment of counsel for indigent persons in cases in which
  1  6 a sentence of death may be or is to be imposed:
  1  7    a.  Provide or contract with attorneys for appointment as
  1  8 lead counsel and co-counsel to provide legal services in cases
  1  9 where a person is charged with murder in the first degree and
  1 10 the state has given notice of intent to seek the death penalty
  1 11 or in cases in which a sentence of death is to be imposed.
  1 12    b.  Conduct or sponsor specialized training programs for
  1 13 attorneys representing persons who may be executed.
  1 14    Sec. 2.  NEW SECTION.  13D.1  QUALIFICATIONS OF COUNSEL IN
  1 15 DEATH PENALTY CASES.
  1 16    The supreme court shall prescribe rules which establish
  1 17 minimum standards and procedures by which attorneys may become
  1 18 qualified to provide legal services as lead counsel in cases
  1 19 in which a sentence of death may be or is to be imposed.
  1 20    Sec. 3.  Section 216A.133, Code 1995, is amended by adding
  1 21 the following new subsection:
  1 22    NEW SUBSECTION.  8.  Review the effects of the
  1 23 reinstatement of the death penalty on arrest, prosecution,
  1 24 conviction, and incarceration rates; law enforcement duties
  1 25 and ability to obtain evidence necessary for arrests; court
  1 26 dockets and workload; prison space; recidivism rates of
  1 27 persons charged with crimes of violence against persons; and
  1 28 other aspects of the criminal justice system.  Based on the
  1 29 review and other factors deemed relevant, the council shall
  1 30 make findings and develop recommendations resulting from those
  1 31 findings.  Commencing January 1, 1997, the council shall
  1 32 report its findings and any related recommendations annually
  1 33 to the governor and to the general assembly.
  1 34    Sec. 4.  NEW SECTION.  812A.1  PROCEDURE TO DETERMINE
  1 35 SANITY OF CONDEMNED INMATE.
  2  1    1.  At any time prior to execution of an inmate under
  2  2 section 902.1, if the director of the department of
  2  3 corrections or the counsel for a person who is under a
  2  4 sentence of execution has cause to believe that the inmate is
  2  5 suffering from such a diseased or deranged condition of the
  2  6 mind as to prevent the defendant from knowing the nature and
  2  7 quality of the act the defendant has been convicted of, or
  2  8 from understanding that trial on the offense has taken place
  2  9 and that execution proceedings are about to take place, or
  2 10 otherwise causes the defendant to lack the capacity to
  2 11 understand the sentence which has been imposed and to
  2 12 participate in any legal proceedings relating to the sentence,
  2 13 the director or counsel may file a request with the court that
  2 14 issued the warrant for execution for a determination of the
  2 15 inmate's sanity.  If the district court determines that there
  2 16 is not sufficient reason to believe that the inmate is insane,
  2 17 the court shall enter an order denying the request and shall
  2 18 state the grounds for denying the request.  If the court
  2 19 believes that there is sufficient reason to believe that the
  2 20 inmate is insane, the court shall suspend the execution and
  2 21 conduct a hearing to determine the sanity of the inmate.
  2 22    2.  At the hearing, the court shall determine the issue of
  2 23 the inmate's sanity.  The court shall order a psychiatric or
  2 24 psychological examination of the inmate.  For that purpose,
  2 25 the court shall appoint two licensed physicians or licensed
  2 26 psychologists, or one licensed physician and one licensed
  2 27 psychologist, who are qualified by training and practice to
  2 28 make such an examination and to examine the inmate and report
  2 29 any findings in writing to the court within ten days after the
  2 30 order of examination is issued.  The inmate shall have the
  2 31 right to present evidence and cross-examine any witnesses at
  2 32 the hearing.  Any statement made by the inmate during the
  2 33 course of any examination provided for in this section,
  2 34 whether or not the inmate consents to the examination, shall
  2 35 not be admitted into evidence against the convict in any
  3  1 criminal proceeding.
  3  2    3.  If, at the conclusion of a hearing held pursuant to
  3  3 this section, the court determines that the inmate is sane,
  3  4 the court shall enter an order setting a date for the
  3  5 convict's execution, which shall be carried into effect in the
  3  6 same manner as provided in the original sentence.  A copy of
  3  7 the order shall be sent to the director of the department of
  3  8 corrections and the governor.
  3  9    4.  If, at the conclusion of a hearing held pursuant to
  3 10 this section, the court determines that the convict is insane,
  3 11 the court shall suspend the execution until further order.  At
  3 12 any time after issuance of the order, if the court has
  3 13 sufficient reason to believe that the inmate has become sane,
  3 14 the court shall again determine the sanity of the inmate as
  3 15 provided by this section.  Proceedings pursuant to this
  3 16 section may continue to be held at such times as the court
  3 17 orders until it is either determined that the inmate is sane
  3 18 or incurably insane.
  3 19    Sec. 5.  NEW SECTION.  814.28  REVIEW OF DEATH SENTENCE.
  3 20    1.  In a case in which a sentence of death is imposed, the
  3 21 supreme court shall automatically review the judgment and
  3 22 sentence.  The court's review of the case shall be de novo.
  3 23 The case shall not be transferred to the court of appeals.
  3 24    2.  A review by the supreme court of a judgment and
  3 25 sentence imposing the punishment of death has priority over
  3 26 all other criminal and other actions pending before the
  3 27 supreme court.
  3 28    3.  The supreme court shall review the trial and judgment,
  3 29 and separately shall review the sentencing proceeding.  Upon
  3 30 determining that errors did not occur at the trial requiring
  3 31 reversal or modification of the judgment, the supreme court
  3 32 shall proceed to determine if the sentence of death is
  3 33 lawfully imposed.  In its review of the sentencing proceeding
  3 34 the supreme court shall determine all of the following:
  3 35    a.  Whether the sentence of death was imposed capriciously
  4  1 or under the influence of prejudice or other arbitrary factor.
  4  2    b.  Whether the special verdicts returned under section
  4  3 901.11 are supported by the evidence.
  4  4    c.  Whether the sentence of death is excessive or
  4  5 disproportionate to the penalty imposed in similar cases,
  4  6 considering both the crime and the defendant.
  4  7    4.  If the supreme court determines that the sentence of
  4  8 death was not lawfully imposed, the court shall set aside the
  4  9 sentence and shall remand the case to the trial court for
  4 10 imposition of a sentence of life imprisonment.
  4 11    5.  If the supreme court affirms the judgment and sentence
  4 12 of death, the clerk of the supreme court shall certify the
  4 13 judgment of the supreme court under the seal of the court to
  4 14 the clerk of the trial court.
  4 15    Sec. 6.  Section 815.10, Code 1995, is amended by adding
  4 16 the following new subsection:
  4 17    NEW SUBSECTION.  1A.  The court shall appoint for each
  4 18 indigent person who is charged with murder in the first degree
  4 19 and in which a notice of intent to seek the death penalty has
  4 20 been filed two attorneys to represent the person in the murder
  4 21 proceedings and in all state legal proceedings which take
  4 22 place from the time the person is arraigned until the time of
  4 23 sentencing on the charge.  In addition, if at any point in
  4 24 federal post-conviction proceedings an indigent defendant is
  4 25 not afforded court-appointed counsel, the state shall provide
  4 26 counsel to the defendant to present any claims determined
  4 27 meritorious by the federal court if the defendant is not
  4 28 otherwise represented by legal counsel.  Only private
  4 29 attorneys and public defenders who are qualified for
  4 30 representation in cases in which the death penalty may be
  4 31 imposed are eligible for appointment or assignment to a case
  4 32 in which the death penalty may be imposed.
  4 33    Sec. 7.  NEW SECTION.  901.11  MURDER PROCEEDINGS &endash;
  4 34 REQUEST FOR DEATH PENALTY &endash; PENALTY PROCEEDINGS.
  4 35    1.  If a notice of intent to seek the death penalty has
  5  1 been filed, objections to the imposition of the death penalty
  5  2 based upon allegations that a defendant was mentally retarded
  5  3 or mentally ill at the time of the commission of the offense
  5  4 shall be raised within the time provided for the filing of
  5  5 pretrial motions under rule of criminal procedure 10, Iowa
  5  6 court rules, third edition.  The court may, for good cause
  5  7 shown, allow late filing of the motion.  Hearing on the motion
  5  8 shall be held prior to trial and the burden of proof shall be
  5  9 on the defendant to prove mental retardation or mental illness
  5 10 by a preponderance of the evidence.  However, a rebuttable
  5 11 presumption of mental retardation arises if a defendant has an
  5 12 intelligence quotient of seventy or below.  If the court finds
  5 13 that the defendant is mentally retarded, the defendant, if
  5 14 convicted of murder in the first degree, shall be sentenced to
  5 15 life imprisonment in the manner provided in section 902.1,
  5 16 subsection 1.  A finding of the court that the evidence
  5 17 presented by the defendant at the hearing does not preclude
  5 18 the imposition of the death penalty under this section and
  5 19 section 902.12 shall not preclude the introduction of evidence
  5 20 of mental retardation or mental illness during the penalty
  5 21 proceeding.  If the court finds that evidence of mental
  5 22 retardation or mental illness does not preclude imposition of
  5 23 the death penalty, evidence of mental retardation or mental
  5 24 illness may be reviewed by the jury in the penalty proceeding
  5 25 and the jury shall not be informed of the finding in the
  5 26 initial proceeding at any time during the penalty proceeding.
  5 27    2.  If at the trial of a charge of murder in the first
  5 28 degree, the state intends to request that the death penalty be
  5 29 imposed under section 902.1, subsection 2, the prosecutor
  5 30 shall file a notice of intent to seek the death penalty,
  5 31 listing the factors enumerated under section 902.12 that the
  5 32 state intends to establish in support of imposition of the
  5 33 death penalty, at the time of and as part of the information
  5 34 or indictment filed in the case.
  5 35    3.  If a notice of intent to seek the death penalty has
  6  1 been filed, the trial shall be conducted in bifurcated
  6  2 proceedings before the same trier of fact.  During the initial
  6  3 proceeding, the jury, or the court, if the defendant waives
  6  4 the right to a jury trial, shall decide only whether the
  6  5 defendant is guilty or not guilty of murder in the first
  6  6 degree.
  6  7    a.  If, in the initial proceeding, the court or jury finds
  6  8 the defendant guilty of, or the defendant pleads guilty to, an
  6  9 offense other than murder in the first degree, the court shall
  6 10 sentence the defendant in accordance with the sentencing
  6 11 procedures set forth in rule of criminal procedure 22, Iowa
  6 12 court rules, third edition, and chapters 901 through 909,
  6 13 which are applicable to the offense.
  6 14    b.  If the court or jury finds the defendant guilty of, or
  6 15 the defendant pleads guilty to, murder in the first degree,
  6 16 but the prosecuting attorney waives the death penalty, the
  6 17 court shall sentence the defendant to life imprisonment in
  6 18 accordance with the sentencing procedures set forth in rule of
  6 19 criminal procedure 22, Iowa court rules, third edition, and
  6 20 chapters 901 through 909, which are applicable to convictions
  6 21 of murder in the first degree.
  6 22    c.  If the court or jury finds the defendant guilty of
  6 23 murder in the first degree, or a defendant enters a plea of
  6 24 guilty in the initial proceeding, and the prosecuting attorney
  6 25 does not waive imposition of the death penalty, a penalty
  6 26 proceeding shall be held in the manner provided in subsections
  6 27 4 through 12.
  6 28    4.  No sooner than twenty-four hours after a verdict of
  6 29 guilty or a plea of guilty to the charge of murder in the
  6 30 first degree is returned in the initial proceeding, a penalty
  6 31 proceeding shall be held to determine whether the defendant
  6 32 shall be sentenced to death or to life imprisonment.  The
  6 33 proceeding shall be conducted in the trial court before the
  6 34 trial jury, or the court if the defendant has waived the right
  6 35 to a jury trial.  Both the state and the defendant shall have
  7  1 the right to present opening statements at the commencement of
  7  2 the penalty proceedings.  In the proceeding, evidence relevant
  7  3 to the existence of any aggravating or mitigating
  7  4 circumstances may be presented as follows:
  7  5    a.  The state or the defendant may present evidence
  7  6 relevant to any of the factors enumerated in section 902.12
  7  7 and any aggravating circumstances other than juvenile
  7  8 delinquency adjudications for offenses which carry penalties
  7  9 equivalent to the penalties imposed for simple or serious
  7 10 misdemeanors.  The state may introduce evidence of the actual
  7 11 harm caused by the commission of the murder including, but not
  7 12 limited to, evidence relating to the life of the victim and
  7 13 the impact of the loss of the victim to the victim's family
  7 14 and society.  The state shall be required to prove the
  7 15 existence of any of the factors enumerated in section 902.12
  7 16 beyond a reasonable doubt.
  7 17    b.  The defendant may present evidence that the defendant
  7 18 was mentally retarded at the time of the commission of the
  7 19 offense.  The burden of proof shall be on the defendant to
  7 20 prove mental retardation by a preponderance of the evidence.
  7 21 However, a rebuttable presumption of mental retardation arises
  7 22 if a defendant has an intelligence quotient of seventy or
  7 23 below.
  7 24    c.  The state or the defendant may present evidence
  7 25 relevant to any mitigating circumstances which may exist.
  7 26 Mitigating circumstances may include the following
  7 27 circumstances:
  7 28    (1)  The defendant was under the influence of an extreme
  7 29 mental or emotional disturbance insufficient to constitute a
  7 30 defense.
  7 31    (2)  The victim solicited, participated in, or consented to
  7 32 the conduct which resulted in the victim's death.
  7 33    (3)  The age of the defendant at the time of the murder.
  7 34    (4)  The defendant's capacity to appreciate the
  7 35 wrongfulness of the defendant's conduct and to conform that
  8  1 conduct to the requirements of law was significantly impaired
  8  2 as a result of a mental disease or defect or mental
  8  3 retardation, but not to a degree sufficient to constitute a
  8  4 defense.
  8  5    (5)  The defendant has no significant history of prior
  8  6 adult criminal activity.
  8  7    (6)  The defendant acted under extreme duress or under the
  8  8 substantial domination of another person.
  8  9    (7)  The defendant did not directly commit the murder and
  8 10 the defendant did not intend to kill or anticipate that lethal
  8 11 force would be used.
  8 12    (8)  Any other factor which is relevant to the defendant's
  8 13 character or record or to the circumstances of the offense.
  8 14    (9)  The defendant rendered substantial assistance to the
  8 15 state in the prosecution of another person for the crime of
  8 16 murder.
  8 17    (10)  The evidence which establishes that the defendant
  8 18 committed murder in the first degree does not include direct
  8 19 evidence from at least two different sources.
  8 20    d.  The state and the defendant or the defendant's counsel
  8 21 shall be permitted to present and cross-examine witnesses and
  8 22 present arguments for or against a sentence of death.  The
  8 23 court shall receive any evidence offered that is required to
  8 24 be presented under the rules of criminal procedure.  The
  8 25 admission of evidence in support of the existence of a factor
  8 26 enumerated in section 902.12 shall be governed by the rules
  8 27 governing admissibility of evidence at a criminal trial.
  8 28 Evidence regarding aggravating and mitigating circumstances
  8 29 shall not be governed by the rules governing admissibility of
  8 30 evidence, except that introduction of evidence secured in
  8 31 violation of the Constitution of the United States or of the
  8 32 Constitution of the State of Iowa shall not be permitted.
  8 33    5.  At the conclusion of presentation of evidence in the
  8 34 penalty proceeding, the state and the defendant or the
  8 35 defendant's counsel shall be permitted to make closing
  9  1 arguments, including any rebuttal arguments, in the same
  9  2 manner as in the initial proceeding and the following issues
  9  3 shall be determined by the jury or the court, if there is no
  9  4 jury:
  9  5    a.  Whether one or more of the factors enumerated in
  9  6 section 902.12 have been established beyond a reasonable
  9  7 doubt.
  9  8    b.  If one or more aggravating circumstances are
  9  9 established, whether the aggravating circumstance or
  9 10 circumstances outweigh any one or more mitigating
  9 11 circumstances.
  9 12    c.  Whether the defendant shall be sentenced to death.
  9 13    6.  A recommendation for a sentence of death shall not be
  9 14 permitted if the recommendation is based on the race, color,
  9 15 religious beliefs, national origin, or sex of the defendant or
  9 16 the victim.  After submission of the issues, but prior to the
  9 17 return of a finding in the penalty proceeding, if the matter
  9 18 is tried before a jury, the court shall instruct the jury that
  9 19 in considering whether a sentence of death is justified, it
  9 20 shall not consider race, color, religious beliefs, national
  9 21 origin, or sex of the defendant or of any victim.  The court
  9 22 shall further instruct the jury that it shall not return a
  9 23 sentence of death unless it concludes that such a sentence
  9 24 would be recommended no matter what the race, color, religious
  9 25 beliefs, national origin, or sex of the defendant or victim
  9 26 may be.
  9 27    7.  After submission of the issues, but prior to the
  9 28 commencement of the jury deliberations in the penalty
  9 29 proceeding, the court shall instruct the jury that if the
  9 30 defendant is not sentenced to death, the court is required by
  9 31 law to impose a sentence of imprisonment until death without
  9 32 parole.  The court shall further instruct the jury that the
  9 33 sentence of imprisonment until death without parole is
  9 34 required by law if the jury fails to reach a unanimous verdict
  9 35 recommending a sentence of death.
 10  1    8.  Concurrently with the return of the findings on the
 10  2 issues submitted under subsection 5, the jury, or the court if
 10  3 there is no jury, shall return special verdicts as follows:
 10  4    a.  Which of the factor, or factors, enumerated in section
 10  5 902.12, has been unanimously found to have been established
 10  6 beyond a reasonable doubt.
 10  7    b.  Which aggravating circumstances were established and
 10  8 were considered in reaching the verdict returned on the issue
 10  9 specified in subsection 5, paragraph "b".
 10 10    c.  Which mitigating circumstances were established and
 10 11 were considered in reaching the verdict returned on the issue
 10 12 specified in subsection 5, paragraph "b".
 10 13    9.  If the jury, or the court if there is no jury, returns
 10 14 a unanimous affirmative finding on each of the issues
 10 15 submitted under subsection 5, paragraphs "a", "b", and "c",
 10 16 the court shall enter a judgment of conviction and shall
 10 17 sentence the defendant to death as provided in section 902.1,
 10 18 subsection 2.
 10 19    10.  However, if evidence that the defendant was not a
 10 20 major participant in the commission of the murder and that the
 10 21 defendant's conduct did not manifest a reckless indifference
 10 22 to human life is presented to the jury, or the court, if there
 10 23 is no jury, the jury or the court shall return a special
 10 24 verdict on the issue.  If the jury unanimously determines, or
 10 25 the court, if there is no jury, finds that a preponderance of
 10 26 evidence exists that shows that the defendant was not a major
 10 27 participant in the commission of the murder and that the
 10 28 defendant's conduct did not manifest a reckless indifference
 10 29 to human life, the court shall enter a judgment of conviction
 10 30 and shall sentence the defendant to life imprisonment as
 10 31 provided in section 902.1, subsection 1, even if the jury or
 10 32 the court returns unanimous affirmative findings on each of
 10 33 the issues submitted under subsection 5.
 10 34    11.  If the jury, or the court, if there is no jury,
 10 35 returns a negative finding on any of the issues submitted
 11  1 under subsection 5, paragraphs "a", "b", and "c", the court
 11  2 shall enter a judgment of conviction and shall sentence the
 11  3 defendant to life imprisonment as provided in section 902.1,
 11  4 subsection 1.
 11  5    12.  After a verdict has been rendered it shall be recorded
 11  6 on the jury verdict form and shall be read and recorded in
 11  7 open court.  The jurors shall be collectively asked by the
 11  8 court whether the verdict returned is their true and correct
 11  9 verdict.  Even though no juror makes any declaration to the
 11 10 contrary, the jury shall, if either party so requests, be
 11 11 polled and each juror shall be separately asked whether the
 11 12 verdict rendered by the jury foreperson is the juror's true
 11 13 and correct verdict.  If, upon either the collective or the
 11 14 separate inquiry, any juror denies that the verdict is the
 11 15 juror's verdict, the court shall refuse to accept the verdict.
 11 16 The court may direct inquiry or permit inquiry by counsel to
 11 17 ascertain whether any juror has been subjected to coercion or
 11 18 has become confused during the jury deliberation process.  The
 11 19 court may, as appropriate, direct the jury to resume
 11 20 deliberation in the case.  If no disagreement on the verdict
 11 21 is expressed by any of the jurors, the court shall discharge
 11 22 the jury.
 11 23    13.  This section shall not apply to a defendant who was
 11 24 under the age of eighteen at the time the offense was
 11 25 committed.
 11 26    Sec. 8.  Section 902.1, Code 1995, is amended to read as
 11 27 follows:
 11 28    902.1  CLASS "A" FELONY.
 11 29    1.  Upon Except as otherwise provided in subsection 2, upon
 11 30 a plea of guilty, a verdict of guilty, or a special verdict
 11 31 upon which a judgment of conviction of a class "A" felony may
 11 32 be rendered, the court shall enter a judgment of conviction
 11 33 and shall commit the defendant into the custody of the
 11 34 director of the Iowa department of corrections for the rest of
 11 35 the defendant's life.  Nothing in the Iowa corrections code
 12  1 pertaining to deferred judgment, deferred sentence, suspended
 12  2 sentence, or reconsideration of sentence applies to a sentence
 12  3 of life imprisonment for a class "A" felony, and a person
 12  4 convicted of a class "A" felony and sentenced to life
 12  5 imprisonment shall not be released on parole unless the
 12  6 governor commutes the sentence to a term of years.
 12  7    2.  Upon return of a plea or verdict of guilty to the
 12  8 offense of murder in the first degree under section 707.2 and
 12  9 a return of a verdict in favor of a sentence of death in a
 12 10 penalty proceeding conducted as provided in section 901.11,
 12 11 the court shall enter a judgment of conviction and shall
 12 12 commit the defendant into the custody of the director of the
 12 13 Iowa department of corrections.  The sentence shall be carried
 12 14 out by the administration of a lethal injection pursuant to
 12 15 rules adopted by the board of corrections.  If a defendant,
 12 16 for whom a warrant of execution is issued, is pregnant, the
 12 17 execution shall not take place until after the defendant is no
 12 18 longer pregnant.  If a defendant, for whom a warrant of
 12 19 execution is issued, is suffering from such a diseased or
 12 20 deranged condition of the mind as to prevent the defendant
 12 21 from knowing the nature and quality of the act the defendant
 12 22 has been convicted of, or from understanding that trial on the
 12 23 offense has taken place and that execution proceedings are
 12 24 about to take place, or otherwise causes the defendant to lack
 12 25 the capacity, to understand the sentence which has been
 12 26 imposed and to participate in any legal proceedings relating
 12 27 to the sentence the execution shall not take place until after
 12 28 the defendant's capacity is restored.  If the director of the
 12 29 department of corrections or the defendant's counsel files a
 12 30 request with the court which issued the warrant of execution,
 12 31 alleging that the defendant suffers from such a diseased or
 12 32 deranged condition, a hearing on the matter shall be held in
 12 33 the manner provided in section 812A.1.  If a defendant was
 12 34 under the age of eighteen at the time the offense was
 12 35 committed, the defendant shall be sentenced as provided in
 13  1 subsection 1.  For the purposes of this section, "lethal
 13  2 injection" means a continuous intravenous injection of a
 13  3 lethal substance sufficient to cause death.
 13  4    Sec. 9.  Section 902.2, Code 1995, is amended to read as
 13  5 follows:
 13  6    902.2  RECORD OF CLASS "A" FELON REVIEWED.
 13  7    The board shall interview a class "A" felon who has been
 13  8 sentenced to life imprisonment within five years of the
 13  9 felon's confinement and regularly thereafter.  If, in the
 13 10 opinion of the board, the person should be considered for
 13 11 release on parole, the board shall recommend to the governor
 13 12 that the person's sentence be commuted to a term of years.  If
 13 13 the person's sentence is so commuted, the person shall be
 13 14 eligible for parole as provided in chapter 906.
 13 15    Sec. 10.  NEW SECTION.  902.12  FIRST DEGREE MURDER &endash;
 13 16 ADDITIONAL FACTORS.
 13 17    A person who commits murder in the first degree, who is not
 13 18 mentally retarded or mentally ill, and who is age eighteen or
 13 19 older at the time the offense is committed, shall be eligible
 13 20 for a sentence of death under section 902.1, subsection 2, if
 13 21 one or more of the following factors have been established:
 13 22    1.  The person has been previously convicted of a class "A"
 13 23 felony in this state or a criminal offense in any other state
 13 24 which would constitute a class "A" felony under section 707.2,
 13 25 709.2, or 710.2 if committed in this state.  For purposes of
 13 26 this section, a conviction which occurs prior to the filing of
 13 27 an indictment or information for murder in the first degree
 13 28 shall be considered to be a previous conviction.  An
 13 29 adjudication of delinquency does not constitute a conviction
 13 30 for purposes of this subsection.
 13 31    2.  The person is convicted, during the course of the same
 13 32 trial in which the defendant is convicted of murder in the
 13 33 first degree, of committing another class "A" felony under
 13 34 section 707.2, 709.2, or 710.2.
 13 35    3.  The victim was a witness to a crime and the murder is
 14  1 for the purpose of preventing the victim from testifying in
 14  2 any criminal proceeding and the murder was not committed
 14  3 during the commission of the crime that the victim witnessed,
 14  4 or the victim was a witness to a crime and the murder is in
 14  5 retaliation for the victim's testimony in any criminal
 14  6 proceeding.
 14  7    4.  The victim was a prosecutor or former prosecutor, as
 14  8 defined in section 801.4, subsection 12, or was a prosecutor
 14  9 or former prosecutor for any federal prosecutor's office, and
 14 10 the murder is in retaliation for or to prevent the victim from
 14 11 carrying out the victim's official duties.
 14 12    5.  The victim was a judicial officer as defined under
 14 13 section 602.1101, subsection 8, or a former judicial officer
 14 14 of any court of record in this state or any other state and
 14 15 the murder is in retaliation for or to prevent the victim from
 14 16 carrying out the victim's official duties.
 14 17    6.  The victim was an employee of an institution or
 14 18 facility under the control of the department of corrections or
 14 19 a judicial district department of correctional services or of
 14 20 a city or county jail who was performing the victim's official
 14 21 duties.
 14 22    7.  The victim was a peace officer, as defined under
 14 23 section 801.4, subsection 11, or a former peace officer and
 14 24 the murder is in retaliation for or to prevent the victim from
 14 25 carrying out the victim's official duties.
 14 26    8.  The victim was under the age of twelve years and the
 14 27 death results from exceptionally brutal or heinous behavior
 14 28 indicative of wanton cruelty.
 14 29    9.  The murder was especially heinous, atrocious, cruel, or
 14 30 manifesting exceptional depravity.  For purposes of this
 14 31 subsection, the phrase "especially heinous, atrocious, cruel,
 14 32 or manifesting exceptional depravity" means a conscienceless
 14 33 or pitiless crime which is unnecessarily torturous to the
 14 34 victim.
 14 35    For purposes of this section, "mentally retarded" means
 15  1 significant subaverage general intellectual functioning
 15  2 accompanied by significant deficits or impairments in adaptive
 15  3 functioning manifested in the developmental period, but no
 15  4 later than the age of eighteen years, and accompanied by
 15  5 deficits in adaptive behavior.
 15  6    For purposes of this section, "mentally ill" means the
 15  7 condition of a person who is suffering from a chronic and
 15  8 persistent serious mental disease or disorder and who, by
 15  9 reason of that condition, lacks sufficient judgment to make
 15 10 responsible decisions regarding treatment and is reasonably
 15 11 likely to injure the person's self or others who may come into
 15 12 contact with the person if the person is allowed to remain at
 15 13 liberty without treatment.
 15 14    Sec. 11.  NEW SECTION.  902.13  DATA COLLECTION FOR DEATH
 15 15 PENALTY.
 15 16    1.  The supreme court shall collect data on all murder
 15 17 charges in which the death penalty is or was not waived, which
 15 18 are filed and processed in the courts in this state.  This
 15 19 data may be used by the supreme court to determine whether
 15 20 death sentences imposed are excessive or disproportionate, or
 15 21 under the influence of prejudice as a result of racial
 15 22 discrimination under section 814.28.  The court shall make
 15 23 this data available to litigants in death penalty cases.
 15 24    2.  Data collected by public officials concerning factors
 15 25 relevant to the imposition of the death sentence shall be made
 15 26 publicly available.
 15 27    Sec. 12.  NEW SECTION.  903B.1  EXECUTIONS &endash; REFUSAL TO
 15 28 PERFORM.
 15 29    An employee of the state who may lawfully perform, assist,
 15 30 or participate in the execution of a person pursuant to
 15 31 section 902.1, and rules adopted by the department of
 15 32 corrections, shall not be required to perform, assist, or
 15 33 participate in the execution.  State employees who refuse to
 15 34 perform, assist, or participate in the execution of a person
 15 35 shall not be discriminated against in any way, including, but
 16  1 not limited to, employment, promotion, advancement, transfer,
 16  2 licensing, education, training, or the granting of any
 16  3 privileges or appointments because of the refusal to perform,
 16  4 assist, or participate in the execution.
 16  5    Sec. 13.  Section 904.105, Code 1995, is amended by adding
 16  6 the following new subsection:
 16  7    NEW SUBSECTION.  9A.  Adopt rules pursuant to chapter 17A
 16  8 pertaining to executions of persons convicted of murder in the
 16  9 first degree.  Rules adopted shall include, but are not
 16 10 limited to, rules permitting the witnessing of executions by
 16 11 members of the public.  Invitations to witness an execution
 16 12 shall at least be extended to the following representatives of
 16 13 the news media:
 16 14    a.  A representative from a wire service serving Iowa.
 16 15    b.  A representative from a broadcasting network serving
 16 16 Iowa.
 16 17    c.  A representative from a television station located in
 16 18 Iowa.
 16 19    d.  A representative from a radio station located in Iowa.
 16 20    e.  A representative from a daily newspaper published in
 16 21 Iowa.
 16 22    f.  A representative from a weekly newspaper published in
 16 23 Iowa.
 16 24    g.  A representative from the news media from the community
 16 25 in which the condemned person resided, if that community is
 16 26 located in Iowa.
 16 27    Sec. 14.  Rules of criminal procedure, Iowa court rules,
 16 28 third edition, are amended by adding sections 15 through 18 of
 16 29 this Act.
 16 30    Sec. 15.  NEW RULE.  MURDER IN THE FIRST DEGREE &endash;
 16 31 PROCEDURE.
 16 32    1.  If a notice of intent to seek the death penalty has
 16 33 been filed, objections to the imposition of the death penalty
 16 34 based upon allegations that a defendant was mentally retarded
 16 35 at the time of the commission of the offense shall be raised
 17  1 within the time provided for the filing of pretrial motions
 17  2 under R.Cr.P. 10, Iowa court rules, third edition.  The court
 17  3 may, for good cause shown, allow late filing of the motion.
 17  4 Hearing on the motion shall be held prior to trial and the
 17  5 burden of proof shall be on the defendant to prove mental
 17  6 retardation by a preponderance of the evidence.  However, a
 17  7 rebuttable presumption of mental retardation arises if a
 17  8 defendant has an intelligence quotient of seventy or below.  A
 17  9 finding of the court that the evidence presented by the
 17 10 defendant at the hearing does not preclude the imposition of
 17 11 the death penalty under this section and section 902.12 shall
 17 12 not preclude the introduction of evidence of mental
 17 13 retardation during the penalty proceeding.  If the court finds
 17 14 that the evidence presented by the defendant does not preclude
 17 15 the imposition of the death penalty, evidence of mental
 17 16 retardation may be reviewed by the jury during the penalty
 17 17 proceeding and the jury shall not be informed of the finding
 17 18 in the initial proceeding at any time during the penalty
 17 19 proceeding.
 17 20    2.  Upon a finding or plea that a defendant is guilty of
 17 21 murder in the first degree in an initial proceeding, if a
 17 22 notice of intent to seek the death penalty has been filed and
 17 23 has not been waived, the court shall conduct a separate
 17 24 penalty proceeding to determine whether the defendant shall be
 17 25 sentenced to death or to life imprisonment.  The proceeding
 17 26 shall be conducted in the trial court before the trial jury,
 17 27 or the court, if there is no jury, no sooner than twenty-four
 17 28 hours after the return of the verdict or plea in the initial
 17 29 proceeding.  In the proceeding, additional evidence may be
 17 30 presented as to any factor enumerated in Iowa Code section
 17 31 902.12 or any aggravating or mitigating circumstance which may
 17 32 exist.  Evidence presented which is relevant to the existence
 17 33 of a factor enumerated in Iowa Code section 902.12 shall be
 17 34 subject to the rules of evidence.  Presentation of evidence
 17 35 which is relevant to the existence of an aggravating or
 18  1 mitigating circumstance shall not be bound by the rules of
 18  2 evidence.  This subsection does not authorize the introduction
 18  3 of any evidence secured in violation of the Constitution of
 18  4 the United States or of the Constitution of the State of Iowa.
 18  5 The state and the defendant or the defendant's counsel shall
 18  6 be permitted to cross-examine witnesses and to present
 18  7 argument for or against a sentence of death.
 18  8    3.  On conclusion of the presentation of the evidence, the
 18  9 state and the defendant or the defendant's counsel shall be
 18 10 permitted to make closing arguments, including any rebuttal
 18 11 arguments, in the same manner as in the initial proceeding and
 18 12 the court shall submit each of the following issues to the
 18 13 jury:
 18 14    a.  Whether one or more of the factors enumerated in Iowa
 18 15 Code section 902.12 have been proven.
 18 16    b.  If one or more aggravating circumstances have been
 18 17 established, whether one or more of those circumstances
 18 18 outweigh any one or more mitigating circumstances.
 18 19    c.  Whether the defendant shall be sentenced to death.
 18 20    If the case is not tried to a jury, the court shall
 18 21 determine the issues.
 18 22    4.  The state must prove the issue in subsection 3,
 18 23 paragraph "a" beyond a reasonable doubt, and the jury, or the
 18 24 court if there is no jury, shall return a special verdict of
 18 25 "yes" or "no" on each issue.
 18 26    5.  If the case is tried to a jury, the court shall charge
 18 27 the jury that:
 18 28    a.  It shall answer any issue "yes" if it agrees
 18 29 unanimously.
 18 30    b.  It shall answer any issue "no" if the jurors
 18 31 unanimously agree that the answer is "no" or if the jurors do
 18 32 not unanimously agree that the answer is "yes".
 18 33    6.  Concurrently with the return of the findings on the
 18 34 issues submitted under subsection 5, the jury, or the court if
 18 35 there is no jury, shall return special verdicts as follows:
 19  1    a.  Which of the factor, or factors, enumerated in section
 19  2 902.12, has been unanimously found to have been established
 19  3 beyond a reasonable doubt.
 19  4    b.  Which aggravating circumstances were established and
 19  5 were considered in reaching the verdict returned on the issue
 19  6 specified in subsection 3, paragraph "b".
 19  7    c.  Which mitigating circumstances were established and
 19  8 were considered in reaching the verdict returned on the issue
 19  9 specified in subsection 3, paragraph "b".
 19 10    7.  If the jury, or the court, if there is no jury, returns
 19 11 an affirmative finding on all applicable issues, the court
 19 12 shall sentence the defendant to death.  If the jury or the
 19 13 court returns a negative finding on any applicable issue, the
 19 14 court shall sentence the defendant to the custody of the
 19 15 director of the department of corrections for confinement for
 19 16 the rest of the defendant's life.
 19 17    8.  However, if evidence that the defendant was not a major
 19 18 participant in the commission of the murder and that the
 19 19 defendant's conduct did not manifest a reckless indifference
 19 20 to human life is presented to the jury, or the court, if there
 19 21 is no jury, the jury or the court shall return a special
 19 22 verdict on the issue.  If the jury unanimously determines, or
 19 23 the court, if there is no jury, finds that a preponderance of
 19 24 evidence exists that shows that the defendant was not a major
 19 25 participant in the commission of the murder and that the
 19 26 defendant's conduct did not manifest a reckless indifference
 19 27 to human life, the court shall enter a judgment of conviction
 19 28 and shall sentence the defendant to life imprisonment as
 19 29 provided in section 902.1, subsection 1, even if the jury or
 19 30 the court returns unanimous affirmative findings on each of
 19 31 the issues submitted under subsection 3.
 19 32    9.  After a verdict has been rendered it shall be recorded
 19 33 on the jury verdict form and shall be read and recorded in
 19 34 open court.  The jurors shall be collectively asked by the
 19 35 court whether the verdict returned is their true and correct
 20  1 verdict.  Even though no juror makes any declaration to the
 20  2 contrary, the jury shall, if either party so requests, be
 20  3 polled and each juror shall be separately asked whether the
 20  4 verdict rendered by the jury foreperson is the juror's true
 20  5 and correct verdict.  If, upon either the collective or the
 20  6 separate inquiry, any juror denies that the verdict is the
 20  7 juror's verdict, the court shall refuse to accept the verdict.
 20  8 The court may direct inquiry or permit inquiry by counsel to
 20  9 ascertain whether any juror has been subjected to coercion or
 20 10 has become confused during the jury deliberation process.  The
 20 11 court may, as appropriate, direct the jury to resume
 20 12 deliberation in the case.  If no disagreement on the verdict
 20 13 is expressed by any of the jurors, the court shall discharge
 20 14 the jury.
 20 15    10.  Provisions relating to deferred judgment, deferred
 20 16 sentence, suspended sentence, reconsideration of sentence,
 20 17 probation, parole, or work release contained in Iowa Code
 20 18 chapters 901 through 909 do not apply to a conviction of
 20 19 murder in the first degree if the defendant is sentenced to
 20 20 death.
 20 21    Sec. 16.  NEW RULE.  AUTOMATIC REVIEW &endash; STAY OF EXECUTION
 20 22 OF JUDGMENT.
 20 23    1.  A judgment of conviction and sentence of death shall be
 20 24 reviewed automatically in the manner provided in Iowa Code
 20 25 section 814.28, and the Iowa supreme court has exclusive
 20 26 jurisdiction of the review.
 20 27    2.  Upon entry of judgment and sentence of death, the trial
 20 28 court shall prepare a complete record and transcript of the
 20 29 action in the manner provided in the rules of criminal
 20 30 procedure and shall docket the record and transcript with the
 20 31 clerk of the supreme court.
 20 32    3.  The execution of judgment of the trial court is stayed
 20 33 as a matter of law from the time of its entry until the
 20 34 judgment of the supreme court is certified to and entered by
 20 35 the trial court.  Upon entry of a judgment of the supreme
 21  1 court which affirms the conviction and sentence, the stay of
 21  2 execution of judgment terminates as a matter of law.
 21  3    4.  All court costs required due to the automatic
 21  4 preparation of the record and transcript, docketing with the
 21  5 supreme court, and stay of execution of judgment shall be
 21  6 assessed to the state.
 21  7    Sec. 17.  NEW RULE.  ISSUANCE OF WARRANT.
 21  8    1.  Upon entry by the trial court of the judgment of the
 21  9 supreme court affirming a judgment and sentence of death, a
 21 10 district judge shall within five days of the entry issue a
 21 11 warrant under the seal of the court for the execution of the
 21 12 sentence of death.  The warrant shall specifically set forth
 21 13 the offense and the fact of conviction, shall state the
 21 14 judgment and sentence of the court, shall state that the
 21 15 judgment and sentence were affirmed by the supreme court and
 21 16 the date of entry of judgment of the supreme court in the
 21 17 trial court, and shall, subject to the requirements of Iowa
 21 18 Code section 902.1, subsection 2, specify the date fixed for
 21 19 execution of the defendant which shall be not less than fifty
 21 20 nor more than sixty days after the date of entry in the trial
 21 21 court of the judgment of the supreme court affirming the
 21 22 judgment and sentence of death.  The warrant shall be directed
 21 23 to the director of the department of corrections commanding
 21 24 the director to cause the warrant to be executed on the date
 21 25 specified.  The trial court shall deliver the warrant to the
 21 26 sheriff of the county in which judgment of conviction was
 21 27 entered and the sheriff shall deliver the warrant to the
 21 28 director of the department of corrections.  The director of
 21 29 the department of corrections shall acknowledge receipt of the
 21 30 warrant and the defendant, and the sheriff shall return the
 21 31 acknowledgment to the office of the clerk of the trial court
 21 32 from which the warrant was issued.
 21 33    2.  Immediately after issuance of a warrant ordering a
 21 34 sentence of death, the clerk of the trial court issuing the
 21 35 warrant shall transmit by certified mail to the governor a
 22  1 copy of the indictment, the plea, the verdict and special
 22  2 findings, the affirmation of judgment and sentence by the
 22  3 supreme court, and the complete transcript of the trial court.
 22  4    3.  Notwithstanding subsection 1, if a defendant, for whom
 22  5 a warrant of execution is issued, is pregnant, the execution
 22  6 shall not take place until after the defendant is no longer
 22  7 pregnant.  Notwithstanding subsection 1, if a defendant, for
 22  8 whom a warrant of execution is issued, is suffering from such
 22  9 a diseased or deranged condition of the mind as to prevent the
 22 10 defendant from knowing the nature and quality of the act the
 22 11 defendant has been convicted of, or from understanding that
 22 12 trial on the offense has taken place and that execution
 22 13 proceedings are about to take place, or otherwise causes the
 22 14 defendant to lack the capacity to understand the sentence
 22 15 which has been imposed and to participate in any legal
 22 16 proceedings relating to the sentence, the execution shall not
 22 17 take place until after the defendant is no longer suffering
 22 18 from the condition.
 22 19    Sec. 18.  NEW RULE.  EVIDENCE AT PENALTY PROCEEDING WHERE
 22 20 DEATH SENTENCE REQUESTED.
 22 21    1.  At a reasonable time before the commencement of initial
 22 22 proceedings in a first degree murder trial in which a sentence
 22 23 of death has been requested, each party shall file and serve
 22 24 upon the other party the following:
 22 25    a.  A list of all aggravating or mitigating circumstances
 22 26 which the party intends to prove during the sentencing
 22 27 proceedings.
 22 28    b.  The names of all persons whom the party intends to call
 22 29 as witnesses during the sentencing proceedings.
 22 30    c.  Notwithstanding R.Cr.P. 13, copies, or for inspection
 22 31 purposes, the location, of all documents, including books,
 22 32 papers, writings, drawings, graphs, charts, photographs, phone
 22 33 records, and other data compilations from which information
 22 34 can be obtained, or other objects which the party intends to
 22 35 offer into evidence during the sentencing proceedings.  If
 23  1 copies are not supplied to opposing counsel, the party shall
 23  2 make the items available for inspection and copying without
 23  3 order of the court.
 23  4    2.  In proceedings to determine whether the sentence shall
 23  5 be death or life imprisonment, evidence may be presented as to
 23  6 any matter which the trial court deems relevant to the
 23  7 sentence, including but not limited to the nature,
 23  8 circumstances, and manner of completion of the murder, and the
 23  9 defendant's character, background, history, and mental and
 23 10 physical condition.  The trial court shall admit any relevant
 23 11 admissible evidence respecting any aggravating or mitigating
 23 12 circumstances, if the party has included the circumstance on a
 23 13 list provided pursuant to this rule, or good cause is shown
 23 14 for the failure to do so.
 23 15    Sec. 19.  EFFECTIVE DATE &endash; SEVERABILITY &endash; SENTENCES
 23 16 COMMUTED TO LIFE IMPRISONMENT IF ACT UNCONSTITUTIONAL.
 23 17    1.  This Act takes effect October 1, 1995, and applies to
 23 18 offenses committed on or after that date.
 23 19    2.  If any provision of this Act or the application thereof
 23 20 to any person is invalid, the invalidity shall not affect the
 23 21 provisions or application of this Act which can be given
 23 22 effect without the invalid provisions or application and to
 23 23 this end the provisions of this Act are severable.
 23 24    3.  If the imposition of a sentence of death under this Act
 23 25 is found to be unconstitutional, the sentence of any person
 23 26 who has been sentenced to death under this Act shall
 23 27 automatically be commuted to a term of life imprisonment.  
 23 28 HF 2
 23 29 lh/pk/25
     

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