House File 2286 - Introduced
HOUSE FILE
BY J.R. VAN FOSSEN
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act creating the penalty of death for the commission of murder
2 in the first degree, kidnapping, and sexual abuse against the
3 same minor, using DNA or fingerprint evidence to identify the
4 perpetrator, providing a penalty, and providing an effective
5 date.
6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
7 TLSB 6219YH 81
8 jm/je/5
PAG LIN
1 1 Section 1. Section 13B.4, Code Supplement 2005, is amended
1 2 by adding 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,
1 10 kidnapping, and sexual abuse under section 902.15, and the
1 11 state has given notice of intent to seek the death penalty or
1 12 in cases in which a sentence of death is to be imposed.
1 13 b. Conduct or sponsor specialized training programs for
1 14 attorneys representing persons who may be executed.
1 15 Sec. 2. NEW SECTION. 602.10111A QUALIFICATIONS OF
1 16 COUNSEL IN DEATH PENALTY CASES.
1 17 The supreme court shall prescribe rules which establish
1 18 minimum standards and procedures by which attorneys may become
1 19 qualified to provide legal services as lead counsel in cases
1 20 in which a sentence of death may be or is to be imposed.
1 21 Sec. 3. NEW SECTION. 812A.1 PROCEDURE TO DETERMINE
1 22 SANITY OF CONDEMNED INMATE.
1 23 1. At any time prior to execution of an inmate under
1 24 section 902.1, if the director of the department of
1 25 corrections or the counsel for a person who is under a
1 26 sentence of execution has cause to believe that the inmate is
1 27 suffering from such a diseased or deranged condition of the
1 28 mind as to prevent the defendant from knowing the nature and
1 29 quality of the act the defendant has been convicted of, or
1 30 from understanding that trial on the offense has taken place
1 31 and that execution proceedings are about to take place, or to
1 32 otherwise cause the defendant to lack the capacity to
1 33 understand the sentence which has been imposed and to
1 34 participate in any legal proceedings relating to the sentence,
1 35 the director or counsel may file a request with the court that
2 1 issued the warrant for execution for a determination of the
2 2 inmate's sanity. If the district court determines that there
2 3 is not sufficient reason to believe that the inmate is insane,
2 4 the court shall enter an order denying the request and shall
2 5 state the grounds for denying the request. If the court
2 6 believes that there is sufficient reason to believe that the
2 7 inmate is insane, the court shall suspend the execution and
2 8 conduct a hearing to determine the sanity of the inmate.
2 9 2. At the hearing, the court shall determine the issue of
2 10 the inmate's sanity. Prior to the hearing, the court shall
2 11 appoint two licensed physicians or licensed psychologists, or
2 12 one licensed physician and one licensed psychologist, who are
2 13 qualified by training and practice, for purposes of conducting
2 14 a psychiatric or psychological examination of the inmate. The
2 15 physicians or psychologists shall examine the inmate and
2 16 report any findings in writing to the court within ten days
2 17 after the order of examination is issued. The inmate shall
2 18 have the right to present evidence and cross=examine any
2 19 witnesses at the hearing. Any statement made by the inmate
2 20 during the course of any examination provided for in this
2 21 section, whether or not the inmate consents to the
2 22 examination, shall not be admitted into evidence against the
2 23 inmate in any criminal proceeding for purposes other than a
2 24 determination of the inmate's sanity.
2 25 3. If, at the conclusion of a hearing held pursuant to
2 26 this section, the court determines that the inmate is sane,
2 27 the court shall enter an order setting a date for the inmate's
2 28 execution, which shall be carried into effect in the same
2 29 manner as provided in the original sentence. A copy of the
2 30 order shall be sent to the director of the department of
2 31 corrections and the governor.
2 32 4. If, at the conclusion of a hearing held pursuant to
2 33 this section, the court determines that the inmate is insane,
2 34 the court shall suspend the execution until further order. At
2 35 any time after issuance of the order, if the court has
3 1 sufficient reason to believe that the inmate has become sane,
3 2 the court shall again determine the sanity of the inmate as
3 3 provided by this section. Proceedings pursuant to this
3 4 section may continue to be held at such times as the court
3 5 orders until it is either determined that the inmate is sane
3 6 or incurably insane.
3 7 Sec. 4. NEW SECTION. 814.28 REVIEW OF DEATH SENTENCE.
3 8 1. In a case in which a sentence of death is imposed, the
3 9 supreme court shall automatically review the judgment and
3 10 sentence. The court's review of the case shall be de novo.
3 11 The case shall not be transferred to the court of appeals.
3 12 2. A review by the supreme court of a judgment and
3 13 sentence imposing the punishment of death has priority over
3 14 all other criminal and other actions pending before the
3 15 supreme court.
3 16 3. The supreme court shall review the trial and judgment,
3 17 and shall separately review the sentencing proceeding. Upon
3 18 determining that errors did not occur at the trial requiring
3 19 reversal or modification of the judgment, the supreme court
3 20 shall proceed to determine if the sentence of death is
3 21 lawfully imposed. In its review of the sentencing proceeding
3 22 the supreme court shall determine all of the following:
3 23 a. Whether the sentence of death was imposed capriciously
3 24 or under the influence of prejudice or other arbitrary factor.
3 25 b. Whether the special verdicts returned under section
3 26 901.11 are supported by the evidence.
3 27 c. Whether the sentence of death is excessive or
3 28 disproportionate to the penalty imposed in similar cases,
3 29 considering both the crime and the defendant.
3 30 4. If the supreme court determines that the sentence of
3 31 death was not lawfully imposed, the court shall set aside the
3 32 sentence and shall remand the case to the trial court for a
3 33 second sentencing proceeding to determine if the imposition of
3 34 death is warranted.
3 35 5. If the supreme court affirms the judgment and sentence
4 1 of death, the clerk of the supreme court shall certify the
4 2 judgment of the supreme court under the seal of the court to
4 3 the clerk of the trial court.
4 4 Sec. 5. Section 815.10, Code Supplement 2005, is amended
4 5 by adding the following new subsection:
4 6 NEW SUBSECTION. 1A. If two attorneys have not already
4 7 been appointed pursuant to section 13B.4 or 13B.9, the court
4 8 shall appoint, for each indigent person who is charged with
4 9 murder, kidnapping, and sexual abuse under section 902.15, and
4 10 in which a notice of intent to seek the death penalty has been
4 11 filed, two attorneys who are qualified under section
4 12 602.10111A to represent the person in the proceedings and in
4 13 all state legal proceedings which take place from the time the
4 14 person is indicted or arraigned until the person is sentenced
4 15 on the charge. In addition, if at any point in federal
4 16 postconviction proceedings an indigent person is not afforded
4 17 court=appointed counsel, the state shall provide counsel to
4 18 the person to present any claims determined meritorious by the
4 19 federal court if the person is not otherwise represented by
4 20 legal counsel. Only private attorneys and public defenders
4 21 who are qualified to provide representation in cases in which
4 22 the death penalty may be imposed are eligible for appointment
4 23 or assignment to a case in which the death penalty may be
4 24 imposed.
4 25 Sec. 6. NEW SECTION. 901.11 MURDER PROCEEDINGS ==
4 26 REQUEST FOR DEATH PENALTY == PENALTY PROCEEDINGS.
4 27 1. If a notice of intent to seek the death penalty has
4 28 been filed, objections to the imposition of the death penalty
4 29 based upon allegations that a defendant was mentally retarded
4 30 or mentally ill at the time of the commission of the offense
4 31 shall be raised within the time provided for the filing of
4 32 pretrial motions under rule of criminal procedure 2.11, Iowa
4 33 court rules. The court may, for good cause shown, allow late
4 34 filing of the motion. Hearing on the motion shall be held
4 35 prior to trial and the burden of proof shall be on the
5 1 defendant to prove mental retardation or mental illness by a
5 2 preponderance of the evidence. However, a rebuttable
5 3 presumption of mental retardation arises if a defendant has an
5 4 intelligence quotient of seventy or below. If the court finds
5 5 that the defendant is mentally retarded, the defendant, if
5 6 convicted of murder, kidnapping, and sexual abuse under
5 7 section 902.15, shall not be sentenced to death but shall be
5 8 sentenced to life imprisonment in the manner provided in
5 9 section 902.1, subsection 1. A finding by the court that the
5 10 evidence presented by the defendant at the hearing does not
5 11 preclude the imposition of the death penalty under this
5 12 section and section 902.15 shall not preclude the introduction
5 13 of evidence of mental retardation or mental illness during the
5 14 penalty proceeding. If the court finds that evidence of
5 15 mental retardation or mental illness does not preclude
5 16 imposition of the death penalty, evidence of mental
5 17 retardation or mental illness may be reviewed by the jury in
5 18 the penalty proceeding and the jury shall not be informed of
5 19 the finding in the initial proceeding at any time during the
5 20 penalty proceeding.
5 21 2. If at the trial on a charge of murder, kidnapping, and
5 22 sexual abuse under section 902.15, the state intends to
5 23 request that the death penalty be imposed under section 902.1,
5 24 subsection 2, the prosecutor shall file a notice of intent to
5 25 seek the death penalty, at the time of and as part of the
5 26 information or indictment filed in the case.
5 27 3. If a notice of intent to seek the death penalty has
5 28 been filed, the trial shall be conducted in bifurcated
5 29 proceedings before the same trier of fact. During the initial
5 30 proceeding, the jury, or the court, if the defendant waives
5 31 the right to a jury trial, shall decide only whether the
5 32 defendant is guilty or not guilty of murder, kidnapping, and
5 33 sexual abuse under section 902.15.
5 34 a. If, in the initial proceeding, the court or jury finds
5 35 the defendant guilty of, or the defendant pleads guilty to, an
6 1 offense other than murder, kidnapping, and sexual abuse under
6 2 section 902.15, the court shall sentence the defendant in
6 3 accordance with the sentencing procedures set forth in rule of
6 4 criminal procedure 2.23, Iowa court rules, and chapters 901
6 5 through 909, which are applicable to the offense.
6 6 b. If the court or jury finds the defendant guilty of, or
6 7 the defendant pleads guilty to, murder, kidnapping, and sexual
6 8 abuse under section 902.15, but the prosecuting attorney
6 9 waives the death penalty, the court shall sentence the
6 10 defendant to life imprisonment in accordance with the
6 11 sentencing procedures set forth in rule of criminal procedure
6 12 2.23, Iowa court rules, and chapters 901 through 909, which
6 13 are otherwise applicable to convictions of murder in the first
6 14 degree, kidnapping, and sexual abuse.
6 15 c. If the court or jury finds the defendant guilty of
6 16 murder, kidnapping, and sexual abuse under section 902.15, or
6 17 a defendant enters a plea of guilty in the initial proceeding,
6 18 and the prosecuting attorney does not waive imposition of the
6 19 death penalty, a penalty proceeding shall be held in the
6 20 manner provided in subsections 4 through 12.
6 21 4. No sooner than twenty=four hours after a verdict of
6 22 guilty or a plea of guilty to the charge of murder,
6 23 kidnapping, and sexual abuse under section 902.15 is returned
6 24 in the initial proceeding, a penalty proceeding shall be held
6 25 to determine whether the defendant shall be sentenced to death
6 26 or to life imprisonment. The proceeding shall be conducted in
6 27 the trial court before the trial jury, or the court if the
6 28 defendant has waived the right to a jury trial or has waived
6 29 the right for the proceeding to be before the trial jury.
6 30 Both the state and the defendant shall have the right to
6 31 present opening statements at the commencement of the penalty
6 32 proceedings. In the proceeding, evidence relevant to the
6 33 existence of any aggravating or mitigating circumstances may
6 34 be presented as follows:
6 35 a. The state or the defendant may present evidence
7 1 relevant to the conviction of the criminal offenses enumerated
7 2 in section 902.15 and any aggravating circumstances other than
7 3 juvenile delinquency adjudications for offenses which carry
7 4 penalties equivalent to the penalties imposed for simple or
7 5 serious misdemeanors. The state may introduce evidence of the
7 6 actual harm caused by the commission of the murder,
7 7 kidnapping, and sexual abuse under section 902.15, including,
7 8 but not limited to, evidence relating to the life of the
7 9 victim and the impact of the loss of the victim to the
7 10 victim's family and society.
7 11 b. The defendant may present evidence that the defendant
7 12 was mentally retarded at the time of the commission of the
7 13 offense. The burden of proof shall be on the defendant to
7 14 prove mental retardation by a preponderance of the evidence.
7 15 However, a rebuttable presumption of mental retardation arises
7 16 if a defendant has an intelligence quotient of seventy or
7 17 below.
7 18 c. The state or the defendant may present evidence
7 19 relevant to any mitigating circumstances which may exist.
7 20 Mitigating circumstances may include the following
7 21 circumstances:
7 22 (1) The defendant was under the influence of an extreme
7 23 mental or emotional disturbance insufficient to constitute a
7 24 defense.
7 25 (2) The age of the defendant at the time of the murder.
7 26 (3) The defendant's capacity to appreciate the
7 27 wrongfulness of the defendant's conduct and to conform that
7 28 conduct to the requirements of law was significantly impaired
7 29 as a result of a mental disease or defect or mental
7 30 retardation, but not to a degree sufficient to constitute a
7 31 defense.
7 32 (4) The defendant has no significant history of prior
7 33 adult criminal activity.
7 34 (5) The defendant acted under extreme duress or under the
7 35 substantial domination of another person.
8 1 (6) The defendant did not directly commit the murder,
8 2 kidnapping, and sexual abuse and the defendant did not intend
8 3 to kill or anticipate that lethal force would be used.
8 4 (7) Any other factor which is relevant to the defendant's
8 5 character or record or to the circumstances of the offense.
8 6 d. The state and the defendant or the defendant's counsel
8 7 shall be permitted to present and cross=examine witnesses and
8 8 present arguments for or against a sentence of death.
8 9 Evidence regarding aggravating and mitigating circumstances
8 10 shall not be governed by the rules governing admissibility of
8 11 evidence, except that introduction of evidence secured in
8 12 violation of the Constitution of the United States or of the
8 13 Constitution of the State of Iowa shall not be permitted.
8 14 5. At the conclusion of presentation of evidence in the
8 15 penalty proceeding, the state and the defendant or the
8 16 defendant's counsel shall be permitted to make closing
8 17 arguments, including any rebuttal arguments, in the same
8 18 manner as in the initial proceeding and the following issues
8 19 shall be determined by the jury or the court, if there is no
8 20 jury:
8 21 a. Whether the aggravating circumstance or circumstances
8 22 have been established beyond a reasonable doubt and outweigh
8 23 any one or more mitigating circumstances.
8 24 b. Whether the defendant shall be sentenced to death.
8 25 6. A recommendation for a sentence of death shall not be
8 26 permitted if the recommendation is based on the race, color,
8 27 religious beliefs, national origin, or sex of the defendant or
8 28 of any victim. After submission of the issues, but prior to
8 29 the return of a finding in the penalty proceeding, if the
8 30 matter is tried before a jury, the court shall instruct the
8 31 jury that in considering whether a sentence of death is
8 32 justified, it shall not consider race, color, religious
8 33 beliefs, national origin, or sex of the defendant or of any
8 34 victim. The court shall further instruct the jury that it
8 35 shall not return a sentence of death unless it concludes that
9 1 such a sentence would be recommended no matter what the race,
9 2 color, religious beliefs, national origin, or sex of the
9 3 defendant or of any victim may be.
9 4 7. After submission of the issues, but prior to the
9 5 commencement of the jury deliberations in the penalty
9 6 proceeding, the court shall instruct the jury that if the
9 7 defendant is not sentenced to death, the court is required by
9 8 law to impose a sentence of imprisonment until death without
9 9 parole. The court shall further instruct the jury that the
9 10 sentence of imprisonment until death without parole is
9 11 required by law if the jury fails to reach a unanimous verdict
9 12 recommending a sentence of death.
9 13 8. Concurrently with the return of the findings on the
9 14 issues submitted under subsection 5, the jury, or the court if
9 15 there is no jury, shall return special verdicts as follows:
9 16 a. Which aggravating circumstances were established beyond
9 17 a reasonable doubt and were considered in reaching the
9 18 verdict.
9 19 b. Which mitigating circumstances were established and
9 20 were considered in reaching the verdict returned on the issue
9 21 specified in subsection 5, paragraph "a".
9 22 9. If the jury, or the court if there is no jury, returns
9 23 a unanimous affirmative finding on each of the issues
9 24 submitted under subsection 5, paragraphs "a" and "b", the
9 25 court shall enter a judgment of conviction and shall sentence
9 26 the defendant to death as provided in section 902.1,
9 27 subsection 2.
9 28 10. However, if evidence that the defendant was not a
9 29 major participant in the commission of the murder, kidnapping,
9 30 and sexual abuse under section 902.15, and that the
9 31 defendant's conduct did not manifest a reckless indifference
9 32 to human life is presented to the jury, or the court if there
9 33 is no jury, the jury or the court shall also return a special
9 34 verdict on the issue. If the jury unanimously determines, or
9 35 the court, if there is no jury, finds that a preponderance of
10 1 evidence exists that shows that the defendant was not a major
10 2 participant in the commission of the murder, kidnapping, and
10 3 sexual abuse under section 902.15, and that the defendant's
10 4 conduct did not manifest a reckless indifference to human
10 5 life, the court shall enter a judgment of conviction and shall
10 6 sentence the defendant to life imprisonment as provided in
10 7 section 902.1, subsection 1, even if the jury or the court
10 8 returns unanimous affirmative findings on each of the issues
10 9 submitted under subsection 5.
10 10 11. If the jury, or the court if there is no jury, returns
10 11 a negative finding on any of the issues submitted under
10 12 subsection 5, paragraphs "a" or "b", the court shall enter a
10 13 judgment of conviction and shall sentence the defendant to
10 14 life imprisonment as provided in section 902.1, subsection 1.
10 15 12. After a verdict has been rendered it shall be recorded
10 16 on the jury verdict form and shall be read and recorded in
10 17 open court. The jurors shall be collectively asked by the
10 18 court whether the verdict returned is their true and correct
10 19 verdict. Even though no juror makes any declaration to the
10 20 contrary, the jury shall, if either party so requests, be
10 21 polled and each juror shall be separately asked whether the
10 22 verdict rendered by the jury foreperson is the juror's true
10 23 and correct verdict. If, upon either the collective or the
10 24 separate inquiry, any juror denies that the verdict is the
10 25 juror's verdict, the court shall refuse to accept the verdict.
10 26 The court may direct inquiry or permit inquiry by counsel to
10 27 ascertain whether any juror has been subjected to coercion or
10 28 has become confused during the jury deliberation process. The
10 29 court may, as appropriate, direct the jury to resume
10 30 deliberation in the case. If no disagreement on the verdict
10 31 is expressed by any of the jurors, the court shall discharge
10 32 the jury.
10 33 13. This section shall not apply to a defendant who was
10 34 under the age of eighteen at the time the offense was
10 35 committed.
11 1 Sec. 7. Section 902.1, Code 2005, is amended to read as
11 2 follows:
11 3 902.1 CLASS "A" FELONY.
11 4 1. Upon Except as otherwise provided in subsection 2, upon
11 5 a plea of guilty, a verdict of guilty, or a special verdict
11 6 upon which a judgment of conviction of a class "A" felony may
11 7 be rendered, the court shall enter a judgment of conviction
11 8 and shall commit the defendant into the custody of the
11 9 director of the Iowa department of corrections for the rest of
11 10 the defendant's life. Nothing in the Iowa corrections code
11 11 pertaining to deferred judgment, deferred sentence, suspended
11 12 sentence, or reconsideration of sentence applies to a sentence
11 13 of life imprisonment for a class "A" felony, and a person
11 14 convicted of a class "A" felony and sentenced to life
11 15 imprisonment shall not be released on parole unless the
11 16 governor commutes the sentence to a term of years.
11 17 2. Upon return of a plea or verdict of guilty to the
11 18 offense of murder in the first degree, kidnapping, and sexual
11 19 abuse under section 902.15, and a return of a verdict in favor
11 20 of a sentence of death in a penalty proceeding conducted as
11 21 provided in section 901.11, the court shall enter a judgment
11 22 of conviction and shall commit the defendant into the custody
11 23 of the director of the Iowa department of corrections. The
11 24 sentence shall be carried out by the administration of a
11 25 lethal injection pursuant to rules adopted by the board of
11 26 corrections. If a defendant, for whom a warrant of execution
11 27 is issued, is pregnant, the execution shall not take place
11 28 until after the defendant is no longer pregnant. If a
11 29 defendant, for whom a warrant of execution is issued, is
11 30 suffering from such a diseased or deranged condition of the
11 31 mind as to prevent the defendant from knowing the nature and
11 32 quality of the act the defendant has been convicted of, or
11 33 from understanding that trial on the offense has taken place
11 34 and that execution proceedings are about to take place, or
11 35 otherwise causes the defendant to lack the capacity to
12 1 understand the sentence which has been imposed and to
12 2 participate in any legal proceedings relating to the sentence,
12 3 the execution shall not take place until after the defendant's
12 4 capacity is restored. If the director of the department of
12 5 corrections or the defendant's counsel files a request with
12 6 the court which issued the warrant of execution, alleging that
12 7 the defendant suffers from such a diseased or deranged
12 8 condition, a hearing on the matter shall be held in the manner
12 9 provided in section 812A.1. If a defendant was under the age
12 10 of eighteen at the time the offense was committed, the
12 11 defendant shall be sentenced as provided in subsection 1. For
12 12 the purposes of this section, "lethal injection" means a
12 13 continuous intravenous injection of a lethal substance
12 14 sufficient to cause death.
12 15 Sec. 8. NEW SECTION. 902.15 FIRST DEGREE MURDER,
12 16 KIDNAPPING, AND SEXUAL ABUSE.
12 17 A person who commits murder in the first degree,
12 18 kidnapping, and sexual abuse with respect to the same victim,
12 19 who is not mentally retarded or mentally ill, and who is age
12 20 eighteen or older at the time the offense is committed, shall
12 21 be eligible for a sentence of death under section 902.1,
12 22 subsection 2, if the victim was a minor, and if
12 23 deoxyribonucleic acid or fingerprint evidence is persuasively
12 24 used to identify the defendant as part of the state's case in
12 25 chief.
12 26 For purposes of this section, "mentally retarded" means
12 27 significant subaverage general intellectual functioning
12 28 accompanied by significant deficits or impairments in adaptive
12 29 functioning manifested in the developmental period, but no
12 30 later than the age of eighteen years, and accompanied by
12 31 deficits in adaptive behavior.
12 32 For purposes of this section, "mentally ill" means the
12 33 condition of a person who is suffering from a chronic and
12 34 persistent serious mental disease or disorder and who, by
12 35 reason of that condition, lacks sufficient judgment to make
13 1 responsible decisions regarding treatment and is reasonably
13 2 likely to injure the person's self or others who may come into
13 3 contact with the person if the person is allowed to remain at
13 4 liberty without treatment.
13 5 Sec. 9. NEW SECTION. 902.16 DATA COLLECTION FOR DEATH
13 6 PENALTY.
13 7 1. The supreme court shall collect data on all murder,
13 8 kidnapping, and sexual abuse charges in which the death
13 9 penalty is or was not waived, which are filed and processed in
13 10 the courts in this state. This data may be used by the
13 11 supreme court to determine whether death sentences imposed are
13 12 excessive or disproportionate, or under the influence of
13 13 prejudice as a result of racial discrimination under section
13 14 814.28. The court shall make this data available to litigants
13 15 in death penalty cases.
13 16 2. Data collected by public officials concerning factors
13 17 relevant to the imposition of the death sentence shall be made
13 18 publicly available.
13 19 Sec. 10. NEW SECTION. 903C.1 EXECUTIONS == REFUSAL TO
13 20 PERFORM.
13 21 An employee of the state who may lawfully perform, assist,
13 22 or participate in the execution of a person pursuant to
13 23 section 902.1, and rules adopted by the department of
13 24 corrections, shall not be required to perform, assist, or
13 25 participate in the execution. State employees who refuse to
13 26 perform, assist, or participate in the execution of a person
13 27 shall not be discriminated against in any way, including, but
13 28 not limited to, employment, promotion, advancement, transfer,
13 29 licensing, education, training, or the granting of any
13 30 privileges or appointments because of the refusal to perform,
13 31 assist, or participate in the execution.
13 32 Sec. 11. Section 904.105, Code 2005, is amended by adding
13 33 the following new subsection:
13 34 NEW SUBSECTION. 9A. Adopt rules pursuant to chapter 17A
13 35 pertaining to executions of persons convicted of murder,
14 1 kidnapping, and sexual abuse under section 902.15. Rules
14 2 adopted shall include, but are not limited to, rules
14 3 permitting the witnessing of executions by members of the
14 4 public and the victim's family. Invitations to witness an
14 5 execution shall at least be extended to the following
14 6 representatives of the news media:
14 7 a. A representative from a wire service serving Iowa.
14 8 b. A representative from a broadcasting network serving
14 9 Iowa.
14 10 c. A representative from a television station located in
14 11 Iowa.
14 12 d. A representative from a radio station located in Iowa.
14 13 e. A representative from a daily newspaper published in
14 14 Iowa.
14 15 f. A representative from a weekly newspaper published in
14 16 Iowa.
14 17 g. A representative from the news media from the community
14 18 in which the condemned person resided, if that community is
14 19 located in Iowa.
14 20 Sec. 12. Rules of criminal procedure, Iowa court rules,
14 21 are amended by adding the following four sections of this Act.
14 22 Sec. 13. NEW RULE. 2.___ DEATH PENALTY == PROCEDURE.
14 23 2.___(1) If a notice of intent to seek the death penalty
14 24 has been filed, objections to the imposition of the death
14 25 penalty based upon allegations that a defendant was mentally
14 26 retarded at the time of the commission of the offense shall be
14 27 raised within the time provided for the filing of pretrial
14 28 motions under R.Cr.P. 2.11, Iowa court rules. The court may,
14 29 for good cause shown, allow late filing of the motion.
14 30 Hearing on the motion shall be held prior to trial and the
14 31 burden of proof shall be on the defendant to prove mental
14 32 retardation by a preponderance of the evidence. However, a
14 33 rebuttable presumption of mental retardation arises if a
14 34 defendant has an intelligence quotient of seventy or below. A
14 35 finding of the court that the evidence presented by the
15 1 defendant at the hearing does not preclude the imposition of
15 2 the death penalty under this rule and Iowa Code section 902.15
15 3 shall not preclude the introduction of evidence of mental
15 4 retardation during the penalty proceeding. If the court finds
15 5 that the evidence presented by the defendant does not preclude
15 6 the imposition of the death penalty, evidence of mental
15 7 retardation may be reviewed by the jury during the penalty
15 8 proceeding and the jury shall not be informed of the finding
15 9 in the initial proceeding at any time during the penalty
15 10 proceeding.
15 11 2.___(2) Upon a finding or plea that a defendant is guilty
15 12 of murder, kidnapping, and sexual abuse under Iowa Code
15 13 section 902.15, in an initial proceeding, if a notice of
15 14 intent to seek the death penalty has been filed and has not
15 15 been waived, the court shall conduct a separate penalty
15 16 proceeding to determine whether the defendant shall be
15 17 sentenced to death or to life imprisonment. The penalty
15 18 proceeding shall be conducted in the trial court before the
15 19 trial jury, or the court, if there is no jury, no sooner than
15 20 twenty=four hours after the return of the verdict or plea in
15 21 the initial proceeding. In the penalty proceeding, additional
15 22 evidence may be presented as to the conviction for murder,
15 23 kidnapping, and sexual abuse under section 902.15, or any
15 24 aggravating or mitigating circumstance which may exist.
15 25 Presentation of evidence which is relevant to the existence of
15 26 an aggravating or mitigating circumstance shall not be bound
15 27 by the rules of evidence. This subsection does not authorize
15 28 the introduction of any evidence secured in violation of the
15 29 Constitution of the United States or of the Constitution of
15 30 the State of Iowa. The state and the defendant or the
15 31 defendant's counsel shall be permitted to cross=examine
15 32 witnesses and to present arguments for or against a sentence
15 33 of death.
15 34 2.___(3) On conclusion of the presentation of the evidence
15 35 in the penalty proceeding, the state and the defendant or the
16 1 defendant's counsel shall be permitted to make closing
16 2 arguments, including any rebuttal arguments, in the same
16 3 manner as in the initial proceeding and the court shall submit
16 4 each of the following issues to the jury:
16 5 a. Whether one or more aggravating circumstances outweigh
16 6 any one or more mitigating circumstances.
16 7 b. Whether the defendant shall be sentenced to death.
16 8 If the case is not tried to a jury, the court shall
16 9 determine the issues.
16 10 2.___(4) The state must prove the issue in rule 2.
16 11 ___(3)(a) beyond a reasonable doubt, and the jury, or the
16 12 court if there is no jury, shall return a special verdict of
16 13 "yes" or "no" on each issue.
16 14 2.___(5) If the case is tried to a jury, the court shall
16 15 charge the jury that:
16 16 a. It shall answer any issue "yes" if it agrees
16 17 unanimously.
16 18 b. It shall answer any issue "no" if the jurors
16 19 unanimously agree that the answer is "no" or if the jurors do
16 20 not unanimously agree that the answer is "yes".
16 21 2.___(6) Concurrently with the return of the special
16 22 verdicts under rule 2.___(3), the jury, or the court if there
16 23 is no jury, shall also return special verdicts as follows:
16 24 a. Which aggravating circumstances were established beyond
16 25 a reasonable doubt and were considered in reaching the verdict
16 26 returned on the issue specified in rule 2.___(3)(a).
16 27 b. Which mitigating circumstances were established and
16 28 were considered in reaching the verdict returned on the issue
16 29 specified in rule 2.___(3)(a).
16 30 2.___(7) If the jury, or the court if there is no jury,
16 31 returns an affirmative finding on all applicable issues, the
16 32 court shall sentence the defendant to death. If the jury or
16 33 the court returns a negative finding on any applicable issue,
16 34 the court shall sentence the defendant to the custody of the
16 35 director of the department of corrections for confinement for
17 1 the rest of the defendant's life.
17 2 2.___(8) After a verdict has been rendered it shall be
17 3 recorded on the jury verdict form and shall be read and
17 4 recorded in open court. The jurors shall be collectively
17 5 asked by the court whether the verdict returned is their true
17 6 and correct verdict. Even though no juror makes any
17 7 declaration to the contrary, the jury shall, if either party
17 8 so requests, be polled and each juror shall be separately
17 9 asked whether the verdict rendered by the jury foreperson is
17 10 the juror's true and correct verdict. If, upon either the
17 11 collective or the separate inquiry, any juror denies that the
17 12 verdict is the juror's verdict, the court shall refuse to
17 13 accept the verdict. The court may direct inquiry or permit
17 14 inquiry by counsel to ascertain whether any juror has been
17 15 subjected to coercion or has become confused during the jury
17 16 deliberation process. The court may, as appropriate, direct
17 17 the jury to resume deliberation in the case. If no
17 18 disagreement on the verdict is expressed by any of the jurors,
17 19 the court shall discharge the jury.
17 20 2.___(9) Provisions relating to deferred judgment,
17 21 deferred sentence, suspended sentence, reconsideration of
17 22 sentence, probation, parole, or work release contained in Iowa
17 23 Code chapters 901 through 909 do not apply to a conviction of
17 24 murder, kidnapping, and sexual abuse under Iowa Code section
17 25 902.15 if the defendant is sentenced to death.
17 26 Sec. 14. NEW RULE. 2.___ AUTOMATIC REVIEW == STAY OF
17 27 EXECUTION OF JUDGMENT.
17 28 2.___(1) A judgment of conviction and sentence of death
17 29 shall be reviewed automatically in the manner provided in Iowa
17 30 Code section 814.28, and the Iowa supreme court has exclusive
17 31 jurisdiction of the review.
17 32 2.___(2) Upon entry of judgment and sentence of death, the
17 33 trial court shall prepare a complete record and transcript of
17 34 the action in the manner provided in the rules of criminal
17 35 procedure and shall docket the record and transcript with the
18 1 clerk of the supreme court.
18 2 2.___(3) The execution of judgment of the trial court is
18 3 stayed as a matter of law from the time of its entry until the
18 4 judgment of the supreme court is certified to and entered by
18 5 the trial court. Upon entry of a judgment of the supreme
18 6 court which affirms the conviction and sentence, the stay of
18 7 execution of judgment terminates as a matter of law.
18 8 2.___(4) All court costs required due to the automatic
18 9 preparation of the record and transcript, docketing with the
18 10 supreme court, and stay of execution of judgment shall be
18 11 assessed to the state.
18 12 Sec. 15. NEW RULE. 2.___ ISSUANCE OF WARRANT.
18 13 2.___(1) Upon entry by the trial court of the judgment of
18 14 the supreme court affirming a judgment and sentence of death,
18 15 a district judge shall within five days of the entry issue a
18 16 warrant under the seal of the court for the execution of the
18 17 sentence of death. The warrant shall specifically set forth
18 18 the offense and the fact of conviction, shall state the
18 19 judgment and sentence of the court, shall state that the
18 20 judgment and sentence were affirmed by the supreme court and
18 21 the date of entry of judgment of the supreme court in the
18 22 trial court, and shall, subject to the requirements of Iowa
18 23 Code section 902.1, subsection 2, specify a range of five days
18 24 for execution of the defendant which shall be not less than
18 25 fifty nor more than sixty days after the date of entry in the
18 26 trial court of the judgment of the supreme court affirming the
18 27 judgment and sentence of death. The warrant shall be directed
18 28 to the director of the department of corrections commanding
18 29 the director to cause the warrant to be executed within the
18 30 dates specified. The trial court shall deliver the warrant to
18 31 the sheriff of the county in which judgment of conviction was
18 32 entered and the sheriff shall deliver the warrant to the
18 33 director of the department of corrections. The director of
18 34 the department of corrections shall acknowledge receipt of the
18 35 warrant and the defendant, and the sheriff shall return the
19 1 acknowledgment to the office of the clerk of the trial court
19 2 from which the warrant was issued.
19 3 2.___(2) Immediately after issuance of a warrant ordering
19 4 a sentence of death, the clerk of the trial court issuing the
19 5 warrant shall transmit by certified mail to the governor a
19 6 copy of the indictment, the plea, the verdict and special
19 7 findings, the affirmation of judgment and sentence by the
19 8 supreme court, and the complete transcript of the trial court.
19 9 2.___(3) Notwithstanding rule 2.___(1), if a defendant,
19 10 for whom a warrant of execution is issued, is pregnant, the
19 11 execution shall not take place until after the defendant is no
19 12 longer pregnant. Notwithstanding rule 2.___(1), if a
19 13 defendant, for whom a warrant of execution is issued, is
19 14 suffering from such a diseased or deranged condition of the
19 15 mind as to prevent the defendant from knowing the nature and
19 16 quality of the act the defendant has been convicted of, or
19 17 from understanding that trial on the offense has taken place
19 18 and that execution proceedings are about to take place, or to
19 19 otherwise cause the defendant to lack the capacity to
19 20 understand the sentence which has been imposed and to
19 21 participate in any legal proceedings relating to the sentence,
19 22 the execution shall not take place until after the defendant
19 23 is no longer suffering from the condition.
19 24 Sec. 16. NEW RULE. 2.___ EVIDENCE AT PENALTY PROCEEDING
19 25 WHERE DEATH SENTENCE REQUESTED.
19 26 2.___(1) At a reasonable time before the commencement of
19 27 initial proceedings in a murder, kidnapping, and sexual abuse
19 28 trial in which a sentence of death has been requested, each
19 29 party shall file and serve upon the other party the following:
19 30 a. A list of all aggravating or mitigating circumstances
19 31 which the party intends to prove during the sentencing
19 32 proceedings.
19 33 b. The names of all persons whom the party intends to call
19 34 as witnesses during the sentencing proceedings.
19 35 c. Notwithstanding rule 2.14, copies, or for inspection
20 1 purposes, the location, of all documents, including books,
20 2 papers, writings, drawings, graphs, charts, photographs,
20 3 telephone records, and other data compilations from which
20 4 information can be obtained, or other objects which the party
20 5 intends to offer into evidence during the sentencing
20 6 proceedings. If copies are not supplied to opposing counsel,
20 7 the party shall make the items available for inspection and
20 8 copying without order of the court.
20 9 2.___(2) In proceedings to determine whether the sentence
20 10 shall be death or life imprisonment, evidence may be presented
20 11 as to any matter which the trial court deems relevant to the
20 12 sentence, including but not limited to the nature,
20 13 circumstances, and manner of completion of the murder,
20 14 kidnapping, and sexual abuse, and the defendant's character,
20 15 background, history, and mental and physical condition. The
20 16 trial court shall admit any relevant admissible evidence
20 17 respecting any aggravating or mitigating circumstances, if the
20 18 party has included the circumstance on a list provided
20 19 pursuant to this rule, or good cause is shown for the failure
20 20 to do so.
20 21 Sec. 17. EFFECTIVE DATE == SEVERABILITY.
20 22 1. This Act takes effect January 1, 2007, and applies to
20 23 offenses committed on or after that date.
20 24 2. If any provision of this Act or the application thereof
20 25 to any person is invalid, the invalidity shall not affect the
20 26 provisions or application of this Act which can be given
20 27 effect without the invalid provisions or application and to
20 28 this end, the provisions of this Act are severable.
20 29 EXPLANATION
20 30 This bill amends the Iowa criminal code to provide for
20 31 punishment by death for murder, kidnapping, and sexual abuse
20 32 committed with respect to the same victim who is a minor if
20 33 DNA or fingerprint evidence is persuasively used to identify
20 34 the defendant, and if the trial jury, or the judge if there is
20 35 no jury, makes specific findings and whether the jury believes
21 1 the defendant should be put to death in a separate penalty
21 2 proceeding held after the close of the initial trial
21 3 proceeding. Under the bill, a death sentence could be imposed
21 4 if the murder would constitute murder in the first degree and
21 5 the state pleads and proves the defendant also kidnapped and
21 6 committed sexual abuse against the murder victim who was a
21 7 minor by persuasively using, in part, DNA or fingerprint
21 8 evidence to identify the defendant.
21 9 If a person is indigent and is charged with capital murder,
21 10 payment of costs for two attorneys is authorized. The supreme
21 11 court is required to establish standards for the competency of
21 12 counsel in death penalty cases. The state public defender is
21 13 charged with establishing teams of qualified lead and co=
21 14 counsel for death penalty cases, as well as conducting or
21 15 sponsoring specialized training programs for attorneys
21 16 representing persons who may be executed.
21 17 If such a case proceeds to trial and a notice of intent to
21 18 seek the death penalty has been filed, in addition to any
21 19 other defenses which may be presented to the charge, the
21 20 defendant may raise the issue of mental retardation during the
21 21 time of filing pretrial motions, and the defendant is entitled
21 22 to a rebuttable presumption of mental retardation if the
21 23 defendant establishes that the defendant has an intelligence
21 24 quotient of 70 or below.
21 25 Once the evidence is submitted to the jury, the court will
21 26 instruct the jury, at the defendant's request, that in
21 27 considering whether a sentence of death is justified, the
21 28 race, color, religious beliefs, national origin, or sex of the
21 29 defendant or of any victim is not to be considered. The
21 30 supreme court shall collect evidence relating to whether the
21 31 death sentences imposed are excessive, disproportionate, or
21 32 imposed under the influence of prejudice at trial which will
21 33 be available to litigants.
21 34 The sentence of death is imposed only when the trier of
21 35 fact (the jury or the court if the defendant has waived the
22 1 right to a jury trial) unanimously answers two questions
22 2 affirmatively: (1) whether aggravating circumstances
22 3 established beyond a reasonable doubt outweigh any mitigating
22 4 circumstances that may exist; and (2) whether the defendant
22 5 should be sentenced to death. Mitigating factors the trier of
22 6 fact may consider include the following: the defendant was
22 7 under the influence of an extreme mental or emotional
22 8 disturbance; the age of the defendant; the defendant's ability
22 9 to appreciate the wrongfulness of the conduct due to mental
22 10 disease but not to a degree to constitute a defense; the
22 11 defendant has no significant prior criminal history; the
22 12 defendant was under extreme duress; the defendant did not
22 13 directly commit the murder, kidnapping, and sexual abuse; and
22 14 the defendant's character or record or the circumstances of
22 15 the offense. The sentencing proceeding is conducted
22 16 separately from the finding of guilt or innocence by the same
22 17 trier of fact.
22 18 For the sentencing proceeding, the trier of fact (the jury
22 19 or the court if the defendant has waived the right to have the
22 20 jury hear the proceedings) is to weigh any aggravating
22 21 circumstances established beyond a reasonable doubt by the
22 22 state against any of the enumerated mitigating circumstances
22 23 which may be presented by the defendant. Evidence of certain
22 24 juvenile delinquency adjudications is not admissible in any
22 25 proceeding to determine the sentence. If the jury fails to
22 26 agree unanimously on the required affirmative findings, the
22 27 penalty would be life imprisonment.
22 28 The death penalty sentence would be reviewed automatically
22 29 by the supreme court. The supreme court shall review the
22 30 trial and judgment separately from the sentencing proceeding.
22 31 If the supreme court finds error in the sentencing proceeding,
22 32 the supreme court may remand the case back to district court
22 33 for a new sentencing hearing. The bill requires the supreme
22 34 court to examine whether the sentence is excessive or
22 35 disproportionate to penalties in similar cases. If affirmed
23 1 by the supreme court, the penalty would be accomplished by
23 2 lethal injection. The bill requires the board of corrections
23 3 to adopt rules pertaining to executions, including rules
23 4 pertaining to the witnessing of executions. The criminal and
23 5 juvenile justice planning advisory council is required to
23 6 review the effects of the reinstatement of the death penalty,
23 7 make findings and develop recommendations, and report the
23 8 findings annually commencing January 1, 2007.
23 9 The bill further provides that in order to receive a
23 10 sentence of death, the defendant must be at least 18 years of
23 11 age at the time the offense is committed, must not be mentally
23 12 ill or mentally retarded, and must have been a major
23 13 participant in the commission of the crime or must have shown
23 14 a manifest indifference to human life.
23 15 A person who is sentenced to death, but who is pregnant
23 16 when the warrant of execution is issued, is not to be executed
23 17 until the person is no longer pregnant. A procedure is also
23 18 provided to stay execution of a condemned inmate who becomes
23 19 insane after conviction but before execution.
23 20 An employee of the state shall not be required to perform
23 21 or assist in any execution and shall not be discriminated
23 22 against for refusing to participate.
23 23 The bill contains severability provisions and takes effect
23 24 January 1, 2007, and applies only to offenses committed on or
23 25 after that date.
23 26 LSB 6219YH 81
23 27 jm:rj/je/5