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PAG LIN 1 1 Section 1. Section 13B.4, Code 2001, 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 cocounsel 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. 602.10111A QUALIFICATIONS OF 1 15 COUNSEL IN 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. NEW SECTION. 702.19A TERRORISM. 1 21 "Terrorism" means the killing of another person to 1 22 intimidate or coerce a civilian population, or to influence 1 23 the policy of a unit of government by intimidation or 1 24 coercion, or to affect the conduct of a unit of government. 1 25 Sec. 4. Section 707.2, Code 2001, is amended by adding the 1 26 following new subsection: 1 27 NEW SUBSECTION. 6. The person commits terrorism as 1 28 defined in section 702.19A. 1 29 Sec. 5. Section 708.6, Code 2001, is amended to read as 1 30 follows: 1 31 708.6TERRORISMINTIMIDATION WITH A DANGEROUS WEAPON. 1 32 A person commits a class "C" felony when the person, with 1 33 the intent to injure or provoke fear or anger in another, 1 34 shoots, throws, launches, or discharges a dangerous weapon at, 1 35 into, or in a building, vehicle, airplane, railroad engine, 2 1 railroad car, or boat, occupied by another person, or within 2 2 an assembly of people, and thereby places the occupants or 2 3 people in reasonable apprehension of serious injury or 2 4 threatens to commit such an act under circumstances raising a 2 5 reasonable expectation that the threat will be carried out. 2 6 A person commits a class "D" felony when the person shoots, 2 7 throws, launches, or discharges a dangerous weapon at, into, 2 8 or in a building, vehicle, airplane, railroad engine, railroad 2 9 car, or boat, occupied by another person, or within an 2 10 assembly of people, and thereby places the occupants or people 2 11 in reasonable apprehension of serious injury or threatens to 2 12 commit such an act under circumstances raising a reasonable 2 13 expectation that the threat will be carried out. 2 14 Sec. 6. Section 723A.1, subsection 1, paragraph c, Code 2 15 2001, is amended to read as follows: 2 16 c. An offense constituting a violation of section 708.6 2 17 involvingan act of terrorismintimidation with a dangerous 2 18 weapon. 2 19 Sec. 7. NEW SECTION. 812A.1 PROCEDURE TO DETERMINE 2 20 SANITY OF CONDEMNED INMATE. 2 21 1. At any time prior to execution of an inmate sentenced 2 22 under section 902.1, if the director of the department of 2 23 corrections or the counsel for the person who is under a 2 24 sentence of execution has cause to believe that the inmate is 2 25 suffering from such a diseased or deranged condition of the 2 26 mind as to prevent the defendant from knowing the nature and 2 27 quality of the act the defendant has been convicted of, or 2 28 from understanding that trial on the offense has taken place 2 29 and that execution proceedings are about to take place, or to 2 30 otherwise cause the defendant to lack the capacity to 2 31 understand the sentence that has been imposed and to 2 32 participate in any legal proceedings relating to the sentence, 2 33 the director or counsel may file a request with the court that 2 34 issued the warrant for execution for a determination of the 2 35 inmate's sanity. If the district court determines that there 3 1 is not sufficient reason to believe that the inmate is insane, 3 2 the court shall enter an order denying the request and shall 3 3 state the grounds for denying the request. If the court 3 4 determines that there is sufficient reason to believe that the 3 5 inmate is insane, the court shall suspend the execution and 3 6 conduct a hearing to determine the sanity of the inmate. 3 7 2. At the hearing, the court shall determine the issue of 3 8 the inmate's sanity. Prior to the hearing, the court shall 3 9 appoint two licensed physicians or licensed psychologists, or 3 10 one licensed physician and one licensed psychologist, who are 3 11 qualified by training and practice, for purposes of conducting 3 12 a psychiatric or psychological examination of the inmate. The 3 13 physicians or psychologists shall examine the inmate and 3 14 report any findings in writing to the court within ten days 3 15 after the order of examination is issued. The inmate shall 3 16 have the right to present evidence and cross-examine any 3 17 witnesses at the hearing. Any statement made by the inmate 3 18 during the course of any examination provided for in this 3 19 section, whether or not the inmate consents to the 3 20 examination, shall not be admitted into evidence against the 3 21 inmate in any criminal proceeding for purposes other than a 3 22 determination of the inmate's sanity. 3 23 3. If, at the conclusion of a hearing held pursuant to 3 24 this section, the court determines that the inmate is sane, 3 25 the court shall enter an order setting a date for the inmate's 3 26 execution, which shall be carried into effect in the same 3 27 manner as provided in the original sentence. A copy of the 3 28 order shall be sent to the director of the department of 3 29 corrections and the governor. 3 30 4. If, at the conclusion of a hearing held pursuant to 3 31 this section, the court determines that the inmate is insane, 3 32 the court shall suspend the execution until further order. At 3 33 any time after issuance of the order, if the court has 3 34 sufficient reason to believe that the inmate has become sane, 3 35 the court shall again determine the sanity of the inmate as 4 1 provided by this section. Proceedings pursuant to this 4 2 section may continue to be held at such times as the court 4 3 orders until it is either determined that the inmate is sane 4 4 or incurably insane. 4 5 Sec. 8. NEW SECTION. 814.28 REVIEW OF DEATH SENTENCE. 4 6 1. In a case in which a sentence of death is imposed, the 4 7 supreme court shall automatically review the judgment and 4 8 sentence. The court's review of the case shall be de novo. 4 9 The case shall not be transferred to the court of appeals. 4 10 2. A review by the supreme court of a judgment and 4 11 sentence imposing the punishment of death has priority over 4 12 all other criminal and other actions pending before the 4 13 supreme court. 4 14 3. The supreme court shall review the trial and judgment, 4 15 and shall separately review the sentencing proceeding. Upon 4 16 determining that errors did not occur at the trial requiring 4 17 reversal or modification of the judgment, the supreme court 4 18 shall proceed to determine if the sentence of death is 4 19 lawfully imposed. In its review of the sentencing proceeding 4 20 the supreme court shall determine all of the following: 4 21 a. Whether the sentence of death was imposed capriciously 4 22 or under the influence of prejudice or other arbitrary factor. 4 23 b. Whether the special verdicts returned under section 4 24 901.11 are supported by the evidence. 4 25 c. Whether the sentence of death is excessive or 4 26 disproportionate to the penalty imposed in similar cases, 4 27 considering both the crime and the defendant. 4 28 4. If the supreme court determines that the sentence of 4 29 death was not lawfully imposed, the court shall set aside the 4 30 sentence and shall remand the case to the trial court for 4 31 imposition of a sentence of life imprisonment. 4 32 5. If the supreme court affirms the judgment and sentence 4 33 of death, the clerk of the supreme court shall certify the 4 34 judgment of the supreme court under the seal of the court to 4 35 the clerk of the trial court. 5 1 Sec. 9. Section 815.10, Code 2001, is amended by adding 5 2 the following new subsection: 5 3 NEW SUBSECTION. 1A. If two attorneys have not already 5 4 been appointed pursuant to section 13B.4 or 13B.9, the court 5 5 shall appoint, for each indigent person who is charged with 5 6 murder in the first degree and in which a notice of intent to 5 7 seek the death penalty has been filed, two attorneys who are 5 8 qualified under section 602.10111A to represent the person in 5 9 the murder proceedings and in all state legal proceedings 5 10 which take place from the time the person is indicted or 5 11 arraigned until the person is sentenced on the charge. In 5 12 addition, if at any point in federal postconviction 5 13 proceedings an indigent person is not afforded court-appointed 5 14 counsel, the state shall provide counsel to the person to 5 15 present any claims determined meritorious by the federal court 5 16 if the person is not otherwise represented by legal counsel. 5 17 Only private attorneys and public defenders who are qualified 5 18 to provide representation in cases in which the death penalty 5 19 may be imposed are eligible for appointment or assignment to a 5 20 case in which the death penalty may be imposed. 5 21 Sec. 10. NEW SECTION. 901.11 MURDER PROCEEDINGS – 5 22 REQUEST FOR DEATH PENALTY – PENALTY PROCEEDINGS. 5 23 1. If a notice of intent to seek the death penalty has 5 24 been filed, objections to the imposition of the death penalty 5 25 based upon allegations that a defendant was mentally retarded 5 26 or mentally ill at the time of the commission of the offense 5 27 shall be raised within the time provided for the filing of 5 28 pretrial motions under rule of criminal procedure 2.11, Iowa 5 29 court rules, fourth edition. The court may, for good cause 5 30 shown, allow late filing of the motion. Hearing on the motion 5 31 shall be held prior to trial and the burden of proof shall be 5 32 on the defendant to prove mental retardation or mental illness 5 33 by a preponderance of the evidence. However, a rebuttable 5 34 presumption of mental retardation arises if a defendant has an 5 35 intelligence quotient of seventy or below. If the court finds 6 1 that the defendant is mentally retarded, the defendant, if 6 2 convicted of murder in the first degree, shall not be 6 3 sentenced to death but shall be sentenced to life imprisonment 6 4 in the manner provided in section 902.1, subsection 1. A 6 5 finding by the court that the evidence presented by the 6 6 defendant at the hearing does not preclude the imposition of 6 7 the death penalty under this section and section 902.13 shall 6 8 not preclude the introduction of evidence of mental 6 9 retardation or mental illness during the penalty proceeding. 6 10 If the court finds that evidence of mental retardation or 6 11 mental illness does not preclude imposition of the death 6 12 penalty, evidence of mental retardation or mental illness may 6 13 be reviewed by the jury in the penalty proceeding and the jury 6 14 shall not be informed of the finding in the initial proceeding 6 15 at any time during the penalty proceeding. 6 16 2. If, at the trial on a charge of murder in the first 6 17 degree, the state intends to request that the death penalty be 6 18 imposed under section 902.1, subsection 2, the prosecutor 6 19 shall file a notice of intent to seek the death penalty, at 6 20 the time of and as part of the information or indictment filed 6 21 in the case. 6 22 3. If a notice of intent to seek the death penalty has 6 23 been filed, the trial shall be conducted in bifurcated 6 24 proceedings before the same trier of fact. During the initial 6 25 proceeding, the jury, or the court, if the defendant waives 6 26 the right to a jury trial, shall decide only whether the 6 27 defendant is guilty or not guilty of murder in the first 6 28 degree. 6 29 a. If, in the initial proceeding, the court or jury finds 6 30 the defendant guilty of, or the defendant pleads guilty to, an 6 31 offense other than murder in the first degree, the court shall 6 32 sentence the defendant in accordance with the sentencing 6 33 procedures set forth in rule of criminal procedure 2.23, Iowa 6 34 court rules, fourth edition, and chapters 901 through 909, 6 35 which are applicable to the offense. 7 1 b. If the court or jury finds the defendant guilty of, or 7 2 the defendant pleads guilty to, murder in the first degree, 7 3 but the prosecuting attorney waives the death penalty, the 7 4 court shall sentence the defendant to life imprisonment in 7 5 accordance with the sentencing procedures set forth in rule of 7 6 criminal procedure 2.23, Iowa court rules, fourth edition, and 7 7 chapters 901 through 909, which are applicable to convictions 7 8 of murder in the first degree. 7 9 c. If the court or jury finds the defendant guilty of 7 10 murder in the first degree, or a defendant enters a plea of 7 11 guilty in the initial proceeding, and the prosecuting attorney 7 12 does not waive imposition of the death penalty, a penalty 7 13 proceeding shall be held in the manner provided in subsections 7 14 4 through 12. 7 15 4. No sooner than twenty-four hours after a verdict of 7 16 guilty or a plea of guilty to the charge of murder in the 7 17 first degree is returned in the initial proceeding, a penalty 7 18 proceeding shall be held to determine whether the defendant 7 19 shall be sentenced to death or to life imprisonment. The 7 20 proceeding shall be conducted in the trial court before the 7 21 trial jury, or the court if the defendant has waived the right 7 22 to a jury trial. Both the state and the defendant shall have 7 23 the right to present opening statements at the commencement of 7 24 the penalty proceedings. In the proceeding, evidence relevant 7 25 to the existence of any aggravating or mitigating 7 26 circumstances may be presented as follows: 7 27 a. The state shall or the defendant may present evidence 7 28 relevant to the factor in section 902.13. The state or the 7 29 defendant may present evidence relevant to any aggravating 7 30 circumstances. Evidence presented shall be other than 7 31 juvenile delinquency adjudications for offenses which carry 7 32 penalties equivalent to the penalties imposed for simple or 7 33 serious misdemeanors. The state may introduce evidence of the 7 34 actual harm caused by the commission of the murder including, 7 35 but not limited to, evidence relating to the life of the 8 1 victim and the impact of the loss of the victim on the 8 2 victim's family and society. The state shall be required to 8 3 prove the existence of the factor in section 902.13 beyond a 8 4 reasonable doubt. 8 5 b. The defendant may present evidence that the defendant 8 6 was mentally retarded at the time of the commission of the 8 7 offense. The burden of proof shall be on the defendant to 8 8 prove mental retardation by a preponderance of the evidence. 8 9 However, a rebuttable presumption of mental retardation arises 8 10 if a defendant has an intelligence quotient of seventy or 8 11 below. 8 12 c. The state or the defendant may present evidence 8 13 relevant to any mitigating circumstances which may exist. 8 14 Mitigating circumstances may include the following 8 15 circumstances: 8 16 (1) The defendant was under the influence of an extreme 8 17 mental or emotional disturbance insufficient to constitute a 8 18 defense. 8 19 (2) The victim solicited, participated in, or consented to 8 20 the conduct which resulted in the victim's death. 8 21 (3) The age of the defendant at the time of the murder. 8 22 (4) The defendant's capacity to appreciate the 8 23 wrongfulness of the defendant's conduct and to conform that 8 24 conduct to the requirements of law was significantly impaired 8 25 as a result of a mental disease or defect or mental 8 26 retardation, but not to a degree sufficient to constitute a 8 27 defense. 8 28 (5) The defendant has no significant history of prior 8 29 adult criminal activity. 8 30 (6) The defendant acted under extreme duress or under the 8 31 substantial domination of another person. 8 32 (7) The defendant did not directly commit the murder and 8 33 the defendant did not intend to kill or anticipate that lethal 8 34 force would be used. 8 35 (8) Any other factor which is relevant to the defendant's 9 1 character or record or to the circumstances of the offense. 9 2 (9) The defendant rendered substantial assistance to the 9 3 state in the prosecution of another person for the crime of 9 4 murder. 9 5 (10) The evidence which establishes that the defendant 9 6 committed murder in the first degree does not include direct 9 7 evidence from at least two different sources. 9 8 d. The state and the defendant or the defendant's counsel 9 9 shall be permitted to present and cross-examine witnesses and 9 10 present arguments for or against a sentence of death. The 9 11 admission of evidence in support of the existence of the 9 12 aggravating factor in section 902.13 shall be governed by the 9 13 rules governing admissibility of evidence at a criminal trial. 9 14 Evidence regarding aggravating and mitigating circumstances 9 15 shall not be governed by the rules governing admissibility of 9 16 evidence, except that introduction of evidence secured in 9 17 violation of the Constitution of the United States or of the 9 18 Constitution of the State of Iowa shall not be permitted. 9 19 5. At the conclusion of presentation of evidence in the 9 20 penalty proceeding, the state and the defendant or the 9 21 defendant's counsel shall be permitted to make closing 9 22 arguments, including any rebuttal arguments, in the same 9 23 manner as in the initial proceeding and the following issues 9 24 shall be determined by the jury or the court, if there is no 9 25 jury: 9 26 a. Whether the factor in section 902.13 has been 9 27 established beyond a reasonable doubt. 9 28 b. If one or more aggravating circumstances are 9 29 established, whether the aggravating circumstance or 9 30 circumstances outweigh any one or more mitigating 9 31 circumstances. 9 32 c. Whether the defendant shall be sentenced to death. 9 33 6. A recommendation for a sentence of death shall not be 9 34 permitted if the recommendation is based on the race, color, 9 35 religious beliefs, national origin, or sex of the defendant or 10 1 any victim. After submission of the issues, but prior to the 10 2 return of a finding in the penalty proceeding, if the matter 10 3 is tried before a jury, the court shall instruct the jury that 10 4 in considering whether a sentence of death is justified, it 10 5 shall not consider race, color, religious beliefs, national 10 6 origin, or sex of the defendant or of any victim. The court 10 7 shall further instruct the jury that it shall not return a 10 8 sentence of death unless it concludes that such a sentence 10 9 would be recommended no matter what the race, color, religious 10 10 beliefs, national origin, or sex of the defendant or any 10 11 victim may be. 10 12 7. After submission of the issues, but prior to the 10 13 commencement of the jury deliberations in the penalty 10 14 proceeding, the court shall instruct the jury that if the 10 15 defendant is not sentenced to death, the court is required by 10 16 law to impose a sentence of life imprisonment without parole. 10 17 The court shall further instruct the jury that the sentence of 10 18 life imprisonment without parole is required by law if the 10 19 jury fails to reach a unanimous verdict recommending a 10 20 sentence of death. 10 21 8. Concurrently with the return of the findings on the 10 22 issues submitted under subsection 5, the jury, or the court if 10 23 there is no jury, shall return special verdicts as follows: 10 24 a. If the factor enumerated in section 902.13 has been 10 25 unanimously found to have been established beyond a reasonable 10 26 doubt. 10 27 b. Which aggravating circumstances were established and 10 28 were considered in reaching the verdict returned on the issue 10 29 specified in subsection 5, paragraph "b". 10 30 c. Which mitigating circumstances were established and 10 31 were considered in reaching the verdict returned on the issue 10 32 specified in subsection 5, paragraph "b". 10 33 9. If the jury, or the court if there is no jury, returns 10 34 a unanimous affirmative finding on each of the issues 10 35 submitted under subsection 5, paragraphs "a", "b", and "c", 11 1 the court shall enter a judgment of conviction and shall 11 2 sentence the defendant to death as provided in section 902.1, 11 3 subsection 2. 11 4 10. However, if evidence that the defendant was not a 11 5 major participant in the commission of the murder and that the 11 6 defendant's conduct did not manifest a reckless indifference 11 7 to human life is presented to the jury, or the court, if there 11 8 is no jury, the jury or the court shall also return a special 11 9 verdict on the issue. If the jury unanimously determines, or 11 10 the court, if there is no jury, finds that a preponderance of 11 11 evidence exists that shows that the defendant was not a major 11 12 participant in the commission of the murder and that the 11 13 defendant's conduct did not manifest a reckless indifference 11 14 to human life, the court shall enter a judgment of conviction 11 15 and shall sentence the defendant to life imprisonment as 11 16 provided in section 902.1, subsection 1, even if the jury or 11 17 the court returns unanimous affirmative findings on each of 11 18 the issues submitted under subsection 5. 11 19 11. If the jury, or the court, if there is no jury, 11 20 returns a negative finding on any of the issues submitted 11 21 under subsection 5, paragraphs "a", "b", and "c", the court 11 22 shall enter a judgment of conviction and shall sentence the 11 23 defendant to life imprisonment as provided in section 902.1, 11 24 subsection 1. 11 25 12. After a verdict has been rendered it shall be recorded 11 26 on the jury verdict form and shall be read and recorded in 11 27 open court. The jurors shall be collectively asked by the 11 28 court whether the verdict returned is their true and correct 11 29 verdict. Even though no juror makes any declaration to the 11 30 contrary, the jury shall, if either party so requests, be 11 31 polled and each juror shall be separately asked whether the 11 32 verdict rendered by the jury foreperson is the juror's true 11 33 and correct verdict. If, upon either the collective or the 11 34 separate inquiry, any juror denies that the verdict is the 11 35 juror's verdict, the court shall refuse to accept the verdict. 12 1 The court may direct inquiry or permit inquiry by counsel to 12 2 ascertain whether any juror has been subjected to coercion or 12 3 has become confused during the jury deliberation process. The 12 4 court may, as appropriate, direct the jury to resume 12 5 deliberation in the case. If no disagreement on the verdict 12 6 is expressed by any of the jurors, the court shall discharge 12 7 the jury. 12 8 13. This section shall not apply to a defendant who was 12 9 under the age of eighteen at the time the offense was 12 10 committed. 12 11 Sec. 11. Section 902.1, Code 2001, is amended to read as 12 12 follows: 12 13 902.1 CLASS "A" FELONY. 12 14 1.UponExcept as otherwise provided in subsection 2, upon 12 15 a plea of guilty, a verdict of guilty, or a special verdict 12 16 upon which a judgment of conviction of a class "A" felony may 12 17 be rendered, the court shall enter a judgment of conviction 12 18 and shall commit the defendant into the custody of the 12 19 director of the Iowa department of corrections for the rest of 12 20 the defendant's life. Nothing in the Iowa corrections code 12 21 pertaining to deferred judgment, deferred sentence, suspended 12 22 sentence, or reconsideration of sentence applies to a sentence 12 23 of life imprisonment for a class "A" felony, and a person 12 24 convicted of a class "A" felony and sentenced to life 12 25 imprisonment shall not be released on parole unless the 12 26 governor commutes the sentence to a term of years. 12 27 2. Upon return of a plea or verdict of guilty to the 12 28 offense of murder in the first degree under section 707.2, 12 29 subsection 6, and a return of a verdict in favor of a sentence 12 30 of death in a penalty proceeding conducted as provided in 12 31 section 901.11, the court shall enter a judgment of conviction 12 32 and shall commit the defendant into the custody of the 12 33 director of the Iowa department of corrections. The sentence 12 34 shall be carried out by the administration of a lethal 12 35 injection pursuant to rules adopted by the board of 13 1 corrections. If a defendant, for whom a warrant of execution 13 2 is issued, is pregnant, the execution shall not take place 13 3 until after the defendant is no longer pregnant. If a 13 4 defendant, for whom a warrant of execution is issued, is 13 5 suffering from such a diseased or deranged condition of the 13 6 mind as to prevent the defendant from knowing the nature and 13 7 quality of the act the defendant has been convicted of, or 13 8 from understanding that trial on the offense has taken place 13 9 and that execution proceedings are about to take place, or 13 10 otherwise causes the defendant to lack the capacity to 13 11 understand the sentence which has been imposed and to 13 12 participate in any legal proceedings relating to the sentence, 13 13 the execution shall not take place until after the defendant's 13 14 capacity is restored. If the director of the department of 13 15 corrections or the defendant's counsel files a request with 13 16 the court which issued the warrant of execution, alleging that 13 17 the defendant suffers from such a diseased or deranged 13 18 condition, a hearing on the matter shall be held in the manner 13 19 provided in section 812A.1. If a defendant was under the age 13 20 of eighteen at the time the offense was committed, the 13 21 defendant shall be sentenced as provided in subsection 1. For 13 22 the purposes of this section, "lethal injection" means a 13 23 continuous intravenous injection of a lethal substance 13 24 sufficient to cause death. 13 25 Sec. 12. NEW SECTION. 902.13 FIRST DEGREE MURDER – 13 26 ADDITIONAL FACTOR. 13 27 A person who commits murder in the first degree, who is not 13 28 mentally retarded or mentally ill, and who is age eighteen or 13 29 older at the time the offense is committed, shall be eligible 13 30 for a sentence of death under section 902.1, subsection 2, if 13 31 the following factor is established: The person has been 13 32 convicted of a class "A" felony criminal offense in this state 13 33 or a criminal offense in any other state which would 13 34 constitute a class "A" felony under section 124.401D, 707.2, 13 35 709.2, or 710.2 if committed in this state. 14 1 For purposes of this section, "mentally retarded" means 14 2 significant subaverage general intellectual functioning 14 3 accompanied by significant deficits or impairments in adaptive 14 4 functioning manifested in the developmental period, but no 14 5 later than the age of eighteen years, and accompanied by 14 6 deficits in adaptive behavior. 14 7 For purposes of this section, "mentally ill" means the 14 8 condition of a person who is suffering from a chronic and 14 9 persistent serious mental disease or disorder and who, by 14 10 reason of that condition, lacks sufficient judgment to make 14 11 responsible decisions regarding treatment and is reasonably 14 12 likely to injure the person's self or others who may come into 14 13 contact with the person if the person is allowed to remain at 14 14 liberty without treatment. 14 15 Sec. 13. NEW SECTION. 902.14 DATA COLLECTION FOR DEATH 14 16 PENALTY. 14 17 1. The supreme court shall collect data on all murder 14 18 charges in which the death penalty is or was not waived, which 14 19 are filed and processed in the courts in this state. This 14 20 data may be used by the supreme court to determine whether 14 21 death sentences imposed are excessive or disproportionate, or 14 22 under the influence of prejudice as a result of racial 14 23 discrimination under section 814.28. The court shall make 14 24 this data available to litigants in death penalty cases. 14 25 2. Data collected by public officials concerning factors 14 26 relevant to the imposition of the death sentence shall be made 14 27 publicly available. 14 28 Sec. 14. NEW SECTION. 903C.1 EXECUTIONS – REFUSAL TO 14 29 PERFORM. 14 30 An employee of the state who may lawfully perform, assist, 14 31 or participate in the execution of a person pursuant to 14 32 section 902.1, and rules adopted by the department of 14 33 corrections, shall not be required to perform, assist, or 14 34 participate in the execution. State employees who refuse to 14 35 perform, assist, or participate in the execution of a person 15 1 shall not be discriminated against in any way, including, but 15 2 not limited to, employment, promotion, advancement, transfer, 15 3 licensing, education, training, or the granting of any 15 4 privileges or appointments because of the refusal to perform, 15 5 assist, or participate in the execution. 15 6 Sec. 15. Section 904.105, Code 2001, is amended by adding 15 7 the following new subsection: 15 8 NEW SUBSECTION. 9A. Adopt rules pursuant to chapter 17A 15 9 pertaining to executions of persons convicted of murder in the 15 10 first degree. Rules adopted shall include, but are not 15 11 limited to, rules permitting the witnessing of executions by 15 12 members of the public. Invitations to witness an execution 15 13 shall at least be extended to the following representatives of 15 14 the news media: 15 15 a. A representative from a wire service serving Iowa. 15 16 b. A representative from a broadcasting network serving 15 17 Iowa. 15 18 c. A representative from a television station located in 15 19 Iowa. 15 20 d. A representative from a radio station located in Iowa. 15 21 e. A representative from a daily newspaper published in 15 22 Iowa. 15 23 f. A representative from a weekly newspaper published in 15 24 Iowa. 15 25 g. A representative from the news media from the community 15 26 in which the condemned person resided, if that community is 15 27 located in Iowa. 15 28 Sec. 16. Rules of criminal procedure, Iowa court rules, 15 29 fourth edition, are amended by adding sections 17 through 20 15 30 of this Act. 15 31 Sec. 17. NEW RULE. 2. MURDER IN THE FIRST DEGREE – 15 32 PROCEDURE. 15 33 2. (1) If a notice of intent to seek the death penalty 15 34 has been filed, objections to the imposition of the death 15 35 penalty based upon allegations that a defendant was mentally 16 1 retarded at the time of the commission of the offense shall be 16 2 raised within the time provided for the filing of pretrial 16 3 motions under rule 2.11. The court may, for good cause shown, 16 4 allow late filing of the motion. Hearing on the motion shall 16 5 be held prior to trial and the burden of proof shall be on the 16 6 defendant to prove mental retardation by a preponderance of 16 7 the evidence. However, a rebuttable presumption of mental 16 8 retardation arises if a defendant has an intelligence quotient 16 9 of seventy or below. A finding of the court that the evidence 16 10 presented by the defendant at the hearing does not preclude 16 11 the imposition of the death penalty under this section and 16 12 Code section 902.13 shall not preclude the introduction of 16 13 evidence of mental retardation during the penalty proceeding. 16 14 If the court finds that the evidence presented by the 16 15 defendant does not preclude the imposition of the death 16 16 penalty, evidence of mental retardation may be reviewed by the 16 17 jury during the penalty proceeding and the jury shall not be 16 18 informed of the finding in the initial proceeding at any time 16 19 during the penalty proceeding. 16 20 2. (2) Upon a finding or plea that a defendant is guilty 16 21 of murder in the first degree in an initial proceeding, if a 16 22 notice of intent to seek the death penalty has been filed and 16 23 has not been waived, the court shall conduct a separate 16 24 penalty proceeding to determine whether the defendant shall be 16 25 sentenced to death or to life imprisonment. The penalty 16 26 proceeding shall be conducted in the trial court before the 16 27 trial jury, or the court, if there is no jury, no sooner than 16 28 twenty-four hours after the return of the verdict or plea in 16 29 the initial proceeding. In the penalty proceeding, additional 16 30 evidence shall be presented by the state and may be presented 16 31 by the defendant as to the factor in Code section 902.13. The 16 32 state and the defendant may present evidence relevant to any 16 33 aggravating or mitigating circumstance which may exist. 16 34 Evidence presented which is relevant to the existence of the 16 35 factor in Code section 902.13 shall be subject to the rules of 17 1 evidence. Presentation of evidence which is relevant to the 17 2 existence of an aggravating or mitigating circumstance shall 17 3 not be bound by the rules of evidence. This rule does not 17 4 authorize the introduction of any evidence secured in 17 5 violation of the Constitution of the United States or of the 17 6 Constitution of the State of Iowa. The state and the 17 7 defendant or the defendant's counsel shall be permitted to 17 8 cross-examine witnesses and to present arguments for or 17 9 against a sentence of death. 17 10 2. (3) On conclusion of the presentation of the evidence 17 11 in the penalty proceeding, the state and the defendant or the 17 12 defendant's counsel shall be permitted to make closing 17 13 arguments, including any rebuttal arguments, in the same 17 14 manner as in the initial proceeding and the court shall submit 17 15 each of the following issues to the jury: 17 16 a. Whether the factor in Code section 902.13 has been 17 17 established beyond a reasonable doubt. 17 18 b. If one or more aggravating circumstances have been 17 19 established, whether one or more of those circumstances 17 20 outweigh any one or more mitigating circumstances. 17 21 c. Whether the defendant shall be sentenced to death. 17 22 If the case is not tried to a jury, the court shall 17 23 determine the issues. 17 24 2. (4) The state must prove the issue in rule 17 25 2.___(3)(a) beyond a reasonable doubt, and the jury, or the 17 26 court if there is no jury, shall return a special verdict of 17 27 "yes" or "no" on each issue. 17 28 2. (5) If the case is tried to a jury, the court shall 17 29 charge the jury that: 17 30 a. It shall answer any issue "yes" if it agrees 17 31 unanimously. 17 32 b. It shall answer any issue "no" if the jurors 17 33 unanimously agree that the answer is "no" or if the jurors do 17 34 not unanimously agree that the answer is "yes". 17 35 2. (6) Concurrently with the return of the special 18 1 verdicts under rule 2. (4), the jury, or the court if there 18 2 is no jury, shall also return special verdicts as follows: 18 3 a. The factor in Code section 902.13 has been unanimously 18 4 found to have been established beyond a reasonable doubt. 18 5 b. Which aggravating circumstances were established and 18 6 were considered in reaching the verdict returned on the issue 18 7 specified in rule 2. (3)(b). 18 8 c. Which mitigating circumstances were established and 18 9 were considered in reaching the verdict returned on the issue 18 10 specified in rule 2. (3)(b). 18 11 2. (7) If the jury, or the court, if there is no jury, 18 12 returns an affirmative finding on all applicable issues, the 18 13 court shall sentence the defendant to death. If the jury or 18 14 the court returns a negative finding on any applicable issue, 18 15 the court shall sentence the defendant to the custody of the 18 16 director of the department of corrections for confinement for 18 17 the rest of the defendant's life. 18 18 2. (8) However, if evidence that the defendant was not a 18 19 major participant in the commission of the murder and that the 18 20 defendant's conduct did not manifest a reckless indifference 18 21 to human life is presented to the jury, or the court, if there 18 22 is no jury, the jury or the court shall also return a special 18 23 verdict on the issue. If the jury unanimously determines, or 18 24 the court, if there is no jury, finds that a preponderance of 18 25 evidence exists that shows that the defendant was not a major 18 26 participant in the commission of the murder and that the 18 27 defendant's conduct did not manifest a reckless indifference 18 28 to human life, the court shall enter a judgment of conviction 18 29 and shall sentence the defendant to life imprisonment as 18 30 provided in Code section 902.1, subsection 1, even if the jury 18 31 or the court returns unanimous affirmative findings on each of 18 32 the issues submitted under rule 2. (3). 18 33 2. (9) After a verdict has been rendered it shall be 18 34 recorded on the jury verdict form and shall be read and 18 35 recorded in open court. The jurors shall be collectively 19 1 asked by the court whether the verdict returned is their true 19 2 and correct verdict. Even though no juror makes any 19 3 declaration to the contrary, the jury shall, if either party 19 4 so requests, be polled and each juror shall be separately 19 5 asked whether the verdict rendered by the jury foreperson is 19 6 the juror's true and correct verdict. If, upon either the 19 7 collective or the separate inquiry, any juror denies that the 19 8 verdict is the juror's verdict, the court shall refuse to 19 9 accept the verdict. The court may direct inquiry or permit 19 10 inquiry by counsel to ascertain whether any juror has been 19 11 subjected to coercion or has become confused during the jury 19 12 deliberation process. The court may, as appropriate, direct 19 13 the jury to resume deliberation in the case. If no 19 14 disagreement on the verdict is expressed by any of the jurors, 19 15 the court shall discharge the jury. 19 16 2. (10) Provisions relating to deferred judgment, 19 17 deferred sentence, suspended sentence, reconsideration of 19 18 sentence, reopening of a sentence, probation, parole, or work 19 19 release contained in Code chapters 901 through 909 do not 19 20 apply to a conviction of murder in the first degree if the 19 21 defendant is sentenced to death. 19 22 Sec. 18. NEW RULE. 2. AUTOMATIC REVIEW – STAY OF 19 23 EXECUTION OF JUDGMENT. 19 24 2. (1) A judgment of conviction and sentence of death 19 25 shall be reviewed automatically in the manner provided in Code 19 26 section 814.28, and the Iowa supreme court has exclusive 19 27 jurisdiction of the review. 19 28 2. (2) Upon entry of judgment and sentence of death, the 19 29 trial court shall prepare a complete record and transcript of 19 30 the action in the manner provided in the rules of criminal 19 31 procedure and shall docket the record and transcript with the 19 32 clerk of the supreme court. 19 33 2. (3) The execution of judgment of the trial court is 19 34 stayed as a matter of law from the time of its entry until the 19 35 judgment of the supreme court is certified to and entered by 20 1 the trial court. Upon entry of a judgment of the supreme 20 2 court which affirms the conviction and sentence, the stay of 20 3 execution of judgment terminates as a matter of law. 20 4 2. (4) All court costs required due to the automatic 20 5 preparation of the record and transcript, docketing with the 20 6 supreme court, and stay of execution of judgment shall be 20 7 assessed to the state. 20 8 Sec. 19. NEW RULE. 2. ISSUANCE OF WARRANT. 20 9 2. (1) Upon entry by the trial court of the judgment of 20 10 the supreme court affirming a judgment and sentence of death, 20 11 a district judge shall within five days of the entry issue a 20 12 warrant under the seal of the court for the execution of the 20 13 sentence of death. The warrant shall specifically set forth 20 14 the offense and the fact of conviction, shall state the 20 15 judgment and sentence of the court, shall state that the 20 16 judgment and sentence were affirmed by the supreme court and 20 17 the date of entry of judgment of the supreme court in the 20 18 trial court, and shall, subject to the requirements of Code 20 19 section 902.1, subsection 2, specify the date fixed for 20 20 execution of the defendant which shall be not less than fifty 20 21 nor more than sixty days after the date of entry in the trial 20 22 court of the judgment of the supreme court affirming the 20 23 judgment and sentence of death. The warrant shall be directed 20 24 to the director of the department of corrections commanding 20 25 the director to cause the warrant to be executed on the date 20 26 specified. The trial court shall deliver the warrant to the 20 27 sheriff of the county in which judgment of conviction was 20 28 entered and the sheriff shall deliver the warrant to the 20 29 director of the department of corrections. The director of 20 30 the department of corrections shall acknowledge receipt of the 20 31 warrant and the defendant, and the sheriff shall return the 20 32 acknowledgment to the office of the clerk of the trial court 20 33 from which the warrant was issued. 20 34 2. (2) Immediately after issuance of a warrant ordering 20 35 a sentence of death, the clerk of the trial court issuing the 21 1 warrant shall transmit by certified mail to the governor a 21 2 copy of the indictment, the plea, the verdict and special 21 3 findings, the affirmation of judgment and sentence by the 21 4 supreme court, and the complete transcript of the trial court. 21 5 3. Notwithstanding rule 2. (1), if a defendant, for whom 21 6 a warrant of execution is issued, is pregnant, the execution 21 7 shall not take place until after the defendant is no longer 21 8 pregnant. Notwithstanding rule 2. (1), if a defendant, for 21 9 whom a warrant of execution is issued, is suffering from such 21 10 a diseased or deranged condition of the mind as to prevent the 21 11 defendant from knowing the nature and quality of the act the 21 12 defendant has been convicted of, or from understanding that 21 13 trial on the offense has taken place and that execution 21 14 proceedings are about to take place, or to otherwise cause the 21 15 defendant to lack the capacity to understand the sentence 21 16 which has been imposed and to participate in any legal 21 17 proceedings relating to the sentence, the execution shall not 21 18 take place until after the defendant is no longer suffering 21 19 from the condition. 21 20 Sec. 20. NEW RULE. 2. EVIDENCE AT PENALTY PROCEEDING 21 21 WHERE DEATH SENTENCE REQUESTED. 21 22 2. (1) At a reasonable time before the commencement of 21 23 initial proceedings in a first degree murder trial in which a 21 24 sentence of death has been requested, each party shall file 21 25 and serve upon the other party the following: 21 26 a. A list of all aggravating or mitigating circumstances 21 27 which the party intends to prove during the sentencing 21 28 proceedings. 21 29 b. The names of all persons whom the party intends to call 21 30 as witnesses during the sentencing proceedings. 21 31 c. Notwithstanding rule 2.14, copies, or for inspection 21 32 purposes, the location, of all documents, including books, 21 33 papers, writings, drawings, graphs, charts, photographs, 21 34 telephone records, and other data compilations from which 21 35 information can be obtained, or other objects which the party 22 1 intends to offer into evidence during the sentencing 22 2 proceedings. If copies are not supplied to opposing counsel, 22 3 the party shall make the items available for inspection and 22 4 copying without order of the court. 22 5 2. (2) In proceedings to determine whether the sentence 22 6 shall be death or life imprisonment, evidence may be presented 22 7 as to any matter which the trial court deems relevant to the 22 8 sentence, including but not limited to the nature, 22 9 circumstances, and manner of completion of the murder, and the 22 10 defendant's character, background, history, and mental and 22 11 physical condition. The trial court shall admit any relevant 22 12 admissible evidence respecting any aggravating or mitigating 22 13 circumstances, if the party has included the circumstance on a 22 14 list provided pursuant to this rule, or good cause is shown 22 15 for the failure to do so. 22 16 Sec. 21. EFFECTIVE DATE – SEVERABILITY – SENTENCES 22 17 COMMUTED TO LIFE IMPRISONMENT IF ACT UNCONSTITUTIONAL. 22 18 1. This Act takes effect October 1, 2002, and applies to 22 19 offenses committed on or after that date. 22 20 2. If any provision of this Act or the application thereof 22 21 to any person is invalid, the invalidity shall not affect the 22 22 provisions or application of this Act which can be given 22 23 effect without the invalid provisions or application and to 22 24 this end, the provisions of this Act are severable. 22 25 3. If the imposition of a sentence of death under this Act 22 26 is found to be unconstitutional, the sentence of any person 22 27 who has been sentenced to death under this Act shall 22 28 automatically be commuted to a term of life imprisonment. 22 29 EXPLANATION 22 30 This bill amends the Iowa criminal code to provide for 22 31 punishment by death for murder committed under specified 22 32 circumstances if the trial jury, or the judge if there is no 22 33 jury, makes specific affirmative findings respecting the act 22 34 of murder and whether the jury believes the defendant should 22 35 be put to death in a separate penalty proceeding held after 23 1 the close of the initial trial proceeding. Under the bill, a 23 2 death sentence could be imposed if the murder would constitute 23 3 murder in the first degree and the state pleads and proves the 23 4 murder was committed by a person who has previously been 23 5 convicted of a class "A" felony. 23 6 If a person is indigent and is charged with capital murder, 23 7 payment of costs for two attorneys is authorized. The supreme 23 8 court is required to establish standards for the competency of 23 9 counsel in death penalty cases. The state public defender is 23 10 charged with establishing teams of qualified lead and co- 23 11 counsel for death penalty cases, as well as conducting or 23 12 sponsoring specialized training programs for attorneys 23 13 representing persons who may be executed. 23 14 If a murder case proceeds to trial and a notice of intent 23 15 to seek the death penalty has been filed, in addition to any 23 16 other defenses which may be presented to the charge, the 23 17 defendant may raise the issue of mental retardation during the 23 18 time of filing pretrial motions, and the defendant is entitled 23 19 to a rebuttable presumption of mental retardation if the 23 20 defendant establishes that the defendant has an intelligence 23 21 quotient of 70 or below. 23 22 Once the evidence is submitted to the jury, the court shall 23 23 instruct the jury that in considering whether a sentence of 23 24 death is justified, the race, color, religious beliefs, 23 25 national origin, or sex of the defendant or of any victim is 23 26 not to be considered. The supreme court shall collect 23 27 evidence relating to whether the death sentences imposed are 23 28 excessive, disproportionate, or imposed under the influence of 23 29 prejudice at trial which will be available to litigants. 23 30 The sentence of death is imposed only if the death penalty 23 31 has not been previously waived and the trier of fact 23 32 unanimously answers three questions affirmatively: (1) 23 33 whether the person committed terrorism; (2) whether other 23 34 aggravating circumstances outweigh any mitigating 23 35 circumstances that may exist; and (3) whether the defendant 24 1 should be sentenced to death. Mitigating factors the trier of 24 2 fact may consider include the following: the defendant was 24 3 under the influence of an extreme mental or emotional 24 4 disturbance; the victim solicited or participated in the 24 5 conduct; the age of the defendant; the defendant's ability to 24 6 appreciate the wrongfulness of the conduct due to mental 24 7 disease but not to a degree to constitute a defense; the 24 8 defendant has no significant prior criminal history; the 24 9 defendant was under extreme duress; the defendant did not 24 10 directly commit the murder; the defendant's character; the 24 11 defendant gave substantial assistance to the prosecution in 24 12 the prosecution of another person for the crime of murder; and 24 13 the evidence which convicted the defendant does not include 24 14 direct evidence from two sources. The sentencing penalty 24 15 proceeding is conducted separately from the finding of guilt 24 16 or innocence by the same trier of fact. 24 17 For the sentencing penalty proceeding, the trier of fact is 24 18 to weigh any aggravating circumstances established beyond a 24 19 reasonable doubt by the state against any of the enumerated 24 20 mitigating circumstances which may be presented by the 24 21 defendant. Evidence of juvenile delinquency adjudications is 24 22 not admissible in any proceeding to determine the sentence 24 23 penalty. If the jury fails to agree unanimously on the 24 24 required affirmative findings or if the supreme court 24 25 determines that error was committed in the sentencing 24 26 proceeding, the penalty would be life imprisonment. 24 27 The death penalty sentence would be reviewed automatically 24 28 by the supreme court. The bill requires the supreme court to 24 29 examine whether the sentence penalty is excessive or 24 30 disproportionate to penalties in similar cases. If affirmed 24 31 by the supreme court, the penalty would be accomplished by 24 32 lethal injection. The bill requires the board of corrections 24 33 to adopt rules pertaining to executions, including rules 24 34 pertaining to the witnessing of executions. 24 35 The bill further provides that in order to receive a 25 1 sentence of death, the defendant must be at least 18 years of 25 2 age at the time the offense is committed, must not be mentally 25 3 ill or mentally retarded, and must have been a major 25 4 participant in the commission of the murder or must have shown 25 5 a manifest indifference to human life. 25 6 A person who is sentenced to death, but who is pregnant 25 7 when the warrant of execution is issued, is not to be executed 25 8 until the person is no longer pregnant. A procedure is also 25 9 provided to stay execution of a condemned inmate who becomes 25 10 insane after conviction but before execution. 25 11 An employee of the state shall not be required to perform 25 12 or assist in any execution and shall not be discriminated 25 13 against for refusing to participate. 25 14 The bill contains severability provisions and takes effect 25 15 October 1, 2002, and applies only to offenses committed on or 25 16 after that date. 25 17 LSB 6229XS 79 25 18 jm/pj/5
Text: SF02261 Text: SF02263 Text: SF02200 - SF02299 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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