Senate File 2095 - Introduced SENATE FILE 2095 BY BEHN A BILL FOR An Act creating the penalty of death for the commission of 1 murder in the first degree, kidnapping, and sexual abuse 2 against the same minor, providing a penalty, and including 3 effective date provisions. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 5867XS (3) 84 jm/rj

S.F. 2095 Section 1. Section 13B.4, Code 2011, is amended by adding 1 the following new subsection: 2 NEW SUBSECTION . 6A. The state public defender shall perform 3 all of the following duties with respect to the appointment of 4 counsel for indigent persons in cases in which a sentence of 5 death may be or is to be imposed: 6 a. Provide or contract with attorneys for appointment as 7 lead counsel and cocounsel to provide legal services in cases 8 where a person is charged with murder in the first degree, 9 kidnapping, and sexual abuse under section 902.15, and the 10 state has given notice of intent to seek the death penalty or 11 in cases in which a sentence of death is to be imposed. 12 b. Conduct or sponsor specialized training programs for 13 attorneys representing persons who may be executed. 14 Sec. 2. NEW SECTION . 602.10112 Qualifications of counsel 15 in death penalty cases. 16 The supreme court shall prescribe rules which establish 17 minimum standards and procedures by which attorneys may become 18 qualified to provide legal services as lead counsel in cases in 19 which a sentence of death may be or is to be imposed. 20 Sec. 3. NEW SECTION . 812A.1 Procedure to determine sanity 21 of condemned inmate. 22 1. At any time prior to execution of an inmate under section 23 902.1, if the director of the department of corrections or 24 the counsel for a person who is under a sentence of execution 25 has cause to believe that the inmate is suffering from such 26 a diseased or deranged condition of the mind as to prevent 27 the defendant from knowing the nature and quality of the act 28 the defendant has been convicted of, or from understanding 29 that trial on the offense has taken place and that execution 30 proceedings are about to take place, or to otherwise cause the 31 defendant to lack the capacity to understand the sentence which 32 has been imposed and to participate in any legal proceedings 33 relating to the sentence, the director or counsel may file a 34 request with the court that issued the warrant for execution 35 -1- LSB 5867XS (3) 84 jm/rj 1/ 23

S.F. 2095 for a determination of the inmate’s sanity. If the district 1 court determines that there is not sufficient reason to believe 2 that the inmate is insane, the court shall enter an order 3 denying the request and shall state the grounds for denying the 4 request. If the court believes that there is sufficient reason 5 to believe that the inmate is insane, the court shall suspend 6 the execution and conduct a hearing to determine the sanity of 7 the inmate. 8 2. At the hearing, the court shall determine the issue of 9 the inmate’s sanity. Prior to the hearing, the court shall 10 appoint two licensed physicians or licensed psychologists, or 11 one licensed physician and one licensed psychologist, who are 12 qualified by training and practice, for purposes of conducting 13 a psychiatric or psychological examination of the inmate. The 14 physicians or psychologists shall examine the inmate and report 15 any findings in writing to the court within ten days after 16 the order of examination is issued. The inmate shall have 17 the right to present evidence and cross-examine any witnesses 18 at the hearing. Any statement made by the inmate during the 19 course of any examination provided for in this section, whether 20 or not the inmate consents to the examination, shall not be 21 admitted into evidence against the inmate in any criminal 22 proceeding for purposes other than a determination of the 23 inmate’s sanity. 24 3. If, at the conclusion of a hearing held pursuant to 25 this section, the court determines that the inmate is sane, 26 the court shall enter an order setting a date for the inmate’s 27 execution, which shall be carried into effect in the same 28 manner as provided in the original sentence. A copy of the 29 order shall be sent to the director of the department of 30 corrections and the governor. 31 4. If, at the conclusion of a hearing held pursuant to this 32 section, the court determines that the inmate is insane, the 33 court shall suspend the execution until further order. At any 34 time after issuance of the order, if the court has sufficient 35 -2- LSB 5867XS (3) 84 jm/rj 2/ 23

S.F. 2095 reason to believe that the inmate has become sane, the court 1 shall again determine the sanity of the inmate as provided 2 by this section. Proceedings pursuant to this section may 3 continue to be held at such times as the court orders until 4 it is either determined that the inmate is sane or incurably 5 insane. 6 Sec. 4. NEW SECTION . 814.28 Review of death sentence. 7 1. In a case in which a sentence of death is imposed, the 8 supreme court shall automatically review the judgment and 9 sentence. The court’s review of the case shall be de novo. The 10 case shall not be transferred to the court of appeals. 11 2. A review by the supreme court of a judgment and sentence 12 imposing the punishment of death has priority over all other 13 criminal and other actions pending before the supreme court. 14 3. The supreme court shall review the trial and judgment, 15 and shall separately review the sentencing proceeding. Upon 16 determining that errors did not occur at the trial requiring 17 reversal or modification of the judgment, the supreme court 18 shall proceed to determine if the sentence of death is lawfully 19 imposed. In its review of the sentencing proceeding the 20 supreme court shall determine all of the following: 21 a. Whether the sentence of death was imposed capriciously or 22 under the influence of prejudice or other arbitrary factor. 23 b. Whether the special verdicts returned under section 24 901.11 are supported by the evidence. 25 c. Whether the sentence of death is excessive or 26 disproportionate to the penalty imposed in similar cases, 27 considering both the crime and the defendant. 28 4. If the supreme court determines that the sentence of 29 death was not lawfully imposed, the court shall set aside the 30 sentence and shall remand the case to the trial court for a 31 second sentencing proceeding to determine if the imposition of 32 death is warranted. 33 5. If the supreme court affirms the judgment and sentence 34 of death, the clerk of the supreme court shall certify the 35 -3- LSB 5867XS (3) 84 jm/rj 3/ 23

S.F. 2095 judgment of the supreme court under the seal of the court to 1 the clerk of the trial court. 2 Sec. 5. Section 815.10, Code 2011, is amended by adding the 3 following new subsection: 4 NEW SUBSECTION . 1A. If two attorneys have not already 5 been appointed pursuant to section 13B.4 or 13B.9, the court 6 shall appoint, for each indigent person who is charged with 7 murder, kidnapping, and sexual abuse under section 902.15, and 8 in which a notice of intent to seek the death penalty has been 9 filed, two attorneys who are qualified under section 602.10112 10 to represent the person in the proceedings and in all state 11 legal proceedings which take place from the time the person 12 is indicted or arraigned until the person is sentenced on the 13 charge. In addition, if at any point in federal postconviction 14 proceedings an indigent person is not afforded court-appointed 15 counsel, the state shall provide counsel to the person to 16 present any claims determined meritorious by the federal court 17 if the person is not otherwise represented by legal counsel. 18 Only private attorneys and public defenders who are qualified 19 to provide representation in cases in which the death penalty 20 may be imposed are eligible for appointment or assignment to a 21 case in which the death penalty may be imposed. 22 Sec. 6. NEW SECTION . 901.11 Murder proceedings —— request 23 for death penalty —— penalty proceedings. 24 1. If a notice of intent to seek the death penalty has been 25 filed, objections to the imposition of the death penalty based 26 upon allegations that a defendant was mentally retarded or 27 mentally ill at the time of the commission of the offense shall 28 be raised within the time provided for the filing of pretrial 29 motions under rule of criminal procedure 2.11, Iowa court 30 rules. The court may, for good cause shown, allow late filing 31 of the motion. Hearing on the motion shall be held prior to 32 trial and the burden of proof shall be on the defendant to 33 prove mental retardation or mental illness by a preponderance 34 of the evidence. However, a rebuttable presumption of mental 35 -4- LSB 5867XS (3) 84 jm/rj 4/ 23

S.F. 2095 retardation arises if a defendant has an intelligence quotient 1 of seventy or below. If the court finds that the defendant 2 is mentally retarded, the defendant, if convicted of murder, 3 kidnapping, and sexual abuse under section 902.15, shall not be 4 sentenced to death but shall be sentenced to life imprisonment 5 in the manner provided in section 902.1, subsection 1. A 6 finding by the court that the evidence presented by the 7 defendant at the hearing does not preclude the imposition of 8 the death penalty under this section and section 902.15 shall 9 not preclude the introduction of evidence of mental retardation 10 or mental illness during the penalty proceeding. If the court 11 finds that evidence of mental retardation or mental illness 12 does not preclude imposition of the death penalty, evidence 13 of mental retardation or mental illness may be reviewed by 14 the jury in the penalty proceeding and the jury shall not be 15 informed of the finding in the initial proceeding at any time 16 during the penalty proceeding. 17 2. If at the trial on a charge of murder, kidnapping, 18 and sexual abuse under section 902.15, the state intends to 19 request that the death penalty be imposed under section 902.1, 20 subsection 3, the prosecutor shall file a notice of intent 21 to seek the death penalty, at the time of and as part of the 22 information or indictment filed in the case. 23 3. If a notice of intent to seek the death penalty has been 24 filed, the trial shall be conducted in bifurcated proceedings 25 before the same trier of fact. During the initial proceeding, 26 the jury, or the court, if the defendant waives the right to a 27 jury trial, shall decide only whether the defendant is guilty 28 or not guilty of murder, kidnapping, and sexual abuse under 29 section 902.15. 30 a. If, in the initial proceeding, the court or jury finds 31 the defendant guilty of, or the defendant pleads guilty to, 32 an offense other than murder, kidnapping, and sexual abuse 33 under section 902.15, the court shall sentence the defendant 34 in accordance with the sentencing procedures set forth in rule 35 -5- LSB 5867XS (3) 84 jm/rj 5/ 23

S.F. 2095 of criminal procedure 2.23, Iowa court rules, and chapters 901 1 through 909, which are applicable to the offense. 2 b. If the court or jury finds the defendant guilty of, or 3 the defendant pleads guilty to, murder, kidnapping, and sexual 4 abuse under section 902.15, but the prosecuting attorney waives 5 the death penalty, the court shall sentence the defendant to 6 life imprisonment in accordance with the sentencing procedures 7 set forth in rule of criminal procedure 2.23, Iowa court rules, 8 and chapters 901 through 909, which are otherwise applicable 9 to convictions of murder in the first degree, kidnapping, and 10 sexual abuse. 11 c. If the court or jury finds the defendant guilty of 12 murder, kidnapping, and sexual abuse under section 902.15, or a 13 defendant enters a plea of guilty in the initial proceeding, 14 and the prosecuting attorney does not waive imposition of the 15 death penalty, a penalty proceeding shall be held in the manner 16 provided in subsections 4 through 12. 17 4. No sooner than twenty-four hours after a verdict of 18 guilty or a plea of guilty to the charge of murder, kidnapping, 19 and sexual abuse under section 902.15 is returned in the 20 initial proceeding, a penalty proceeding shall be held to 21 determine whether the defendant shall be sentenced to death 22 or to life imprisonment. The proceeding shall be conducted 23 in the trial court before the trial jury, or the court if 24 the defendant has waived the right to a jury trial or has 25 waived the right for the proceeding to be before the trial 26 jury. Both the state and the defendant shall have the right to 27 present opening statements at the commencement of the penalty 28 proceedings. In the proceeding, evidence relevant to the 29 existence of any aggravating or mitigating circumstances may 30 be presented as follows: 31 a. The state or the defendant may present evidence relevant 32 to the conviction of the criminal offenses enumerated in 33 section 902.15 and any aggravating circumstances other than 34 juvenile delinquency adjudications for offenses which carry 35 -6- LSB 5867XS (3) 84 jm/rj 6/ 23

S.F. 2095 penalties equivalent to the penalties imposed for simple or 1 serious misdemeanors. The state may introduce evidence of the 2 actual harm caused by the commission of the murder, kidnapping, 3 and sexual abuse under section 902.15, including but not 4 limited to evidence relating to the life of the victim and the 5 impact of the loss of the victim to the victim’s family and 6 society. 7 b. The defendant may present evidence that the defendant was 8 mentally retarded at the time of the commission of the offense. 9 The burden of proof shall be on the defendant to prove mental 10 retardation by a preponderance of the evidence. However, 11 a rebuttable presumption of mental retardation arises if a 12 defendant has an intelligence quotient of seventy or below. 13 c. The state or the defendant may present evidence relevant 14 to any mitigating circumstances which may exist. Mitigating 15 circumstances may include the following circumstances: 16 (1) The defendant was under the influence of an extreme 17 mental or emotional disturbance insufficient to constitute a 18 defense. 19 (2) The age of the defendant at the time of the murder. 20 (3) The defendant’s capacity to appreciate the wrongfulness 21 of the defendant’s conduct and to conform that conduct to the 22 requirements of law was significantly impaired as a result of a 23 mental disease or defect or mental retardation, but not to a 24 degree sufficient to constitute a defense. 25 (4) The defendant has no significant history of prior adult 26 criminal activity. 27 (5) The defendant acted under extreme duress or under the 28 substantial domination of another person. 29 (6) The defendant did not directly commit the murder, 30 kidnapping, and sexual abuse and the defendant did not intend 31 to kill or anticipate that lethal force would be used. 32 (7) Any other factor which is relevant to the defendant’s 33 character or record or to the circumstances of the offense. 34 d. The state and the defendant or the defendant’s counsel 35 -7- LSB 5867XS (3) 84 jm/rj 7/ 23

S.F. 2095 shall be permitted to present and cross-examine witnesses and 1 present arguments for or against a sentence of death. Evidence 2 regarding aggravating and mitigating circumstances shall not 3 be governed by the rules governing admissibility of evidence, 4 except that introduction of evidence secured in violation of 5 the Constitution of the United States or of the Constitution of 6 the State of Iowa shall not be permitted. 7 5. At the conclusion of presentation of evidence in 8 the penalty proceeding, the state and the defendant or the 9 defendant’s counsel shall be permitted to make closing 10 arguments, including any rebuttal arguments, in the same manner 11 as in the initial proceeding and the following issues shall be 12 determined by the jury or the court, if there is no jury: 13 a. Whether the aggravating circumstance or circumstances 14 have been established beyond a reasonable doubt and outweigh 15 any one or more mitigating circumstances. 16 b. Whether the defendant shall be sentenced to death. 17 6. A recommendation for a sentence of death shall not be 18 permitted if the recommendation is based on the race, color, 19 religious beliefs, national origin, or sex of the defendant 20 or of any victim. After submission of the issues, but prior 21 to the return of a finding in the penalty proceeding, if 22 the matter is tried before a jury, the court shall instruct 23 the jury that in considering whether a sentence of death 24 is justified, it shall not consider race, color, religious 25 beliefs, national origin, or sex of the defendant or of any 26 victim. The court shall further instruct the jury that it 27 shall not return a sentence of death unless it concludes 28 that such a sentence would be recommended no matter what the 29 race, color, religious beliefs, national origin, or sex of the 30 defendant or of any victim may be. 31 7. After submission of the issues, but prior to the 32 commencement of the jury deliberations in the penalty 33 proceeding, the court shall instruct the jury that if the 34 defendant is not sentenced to death, the court is required by 35 -8- LSB 5867XS (3) 84 jm/rj 8/ 23

S.F. 2095 law to impose a sentence of imprisonment until death without 1 parole. The court shall further instruct the jury that 2 the sentence of imprisonment until death without parole is 3 required by law if the jury fails to reach a unanimous verdict 4 recommending a sentence of death. 5 8. Concurrently with the return of the findings on the 6 issues submitted under subsection 5, the jury, or the court if 7 there is no jury, shall return special verdicts as follows: 8 a. Which aggravating circumstances were established beyond a 9 reasonable doubt and were considered in reaching the verdict. 10 b. Which mitigating circumstances were established and 11 were considered in reaching the verdict returned on the issue 12 specified in subsection 5, paragraph “a” . 13 9. If the jury, or the court if there is no jury, returns a 14 unanimous affirmative finding on each of the issues submitted 15 under subsection 5, paragraphs “a” and “b” , the court shall 16 enter a judgment of conviction and shall sentence the defendant 17 to death as provided in section 902.1, subsection 3. 18 10. However, if evidence that the defendant was not a major 19 participant in the commission of the murder, kidnapping, and 20 sexual abuse under section 902.15, and that the defendant’s 21 conduct did not manifest a reckless indifference to human life 22 is presented to the jury, or the court if there is no jury, the 23 jury or the court shall also return a special verdict on the 24 issue. If the jury unanimously determines, or the court, if 25 there is no jury, finds that a preponderance of evidence exists 26 that shows that the defendant was not a major participant in 27 the commission of the murder, kidnapping, and sexual abuse 28 under section 902.15, and that the defendant’s conduct did not 29 manifest a reckless indifference to human life, the court shall 30 enter a judgment of conviction and shall sentence the defendant 31 to life imprisonment as provided in section 902.1, subsection 32 1, even if the jury or the court returns unanimous affirmative 33 findings on each of the issues submitted under subsection 5. 34 11. If the jury, or the court if there is no jury, returns 35 -9- LSB 5867XS (3) 84 jm/rj 9/ 23

S.F. 2095 a negative finding on any of the issues submitted under 1 subsection 5, paragraphs “a” or “b” , the court shall enter a 2 judgment of conviction and shall sentence the defendant to life 3 imprisonment as provided in section 902.1, subsection 1. 4 12. After a verdict has been rendered it shall be recorded 5 on the jury verdict form and shall be read and recorded in open 6 court. The jurors shall be collectively asked by the court 7 whether the verdict returned is their true and correct verdict. 8 Even though no juror makes any declaration to the contrary, the 9 jury shall, if either party so requests, be polled and each 10 juror shall be separately asked whether the verdict rendered by 11 the jury foreperson is the juror’s true and correct verdict. 12 If, upon either the collective or the separate inquiry, any 13 juror denies that the verdict is the juror’s verdict, the court 14 shall refuse to accept the verdict. The court may direct 15 inquiry or permit inquiry by counsel to ascertain whether any 16 juror has been subjected to coercion or has become confused 17 during the jury deliberation process. The court may, as 18 appropriate, direct the jury to resume deliberation in the 19 case. If no disagreement on the verdict is expressed by any of 20 the jurors, the court shall discharge the jury. 21 13. This section shall not apply to a defendant who 22 was under the age of eighteen at the time the offense was 23 committed. 24 Sec. 7. Section 902.1, subsection 1, Code Supplement 2011, 25 is amended to read as follows: 26 1. Upon Except as otherwise provided in subsection 2 or 27 3, upon a plea of guilty, a verdict of guilty, or a special 28 verdict upon which a judgment of conviction of a class “A” 29 felony may be rendered, the court shall enter a judgment of 30 conviction and shall commit the defendant into the custody of 31 the director of the Iowa department of corrections for the 32 rest of the defendant’s life. Nothing in the Iowa corrections 33 code pertaining to deferred judgment, deferred sentence, 34 suspended sentence, or reconsideration of sentence applies 35 -10- LSB 5867XS (3) 84 jm/rj 10/ 23

S.F. 2095 to a sentence of life imprisonment for a class “A” felony, 1 and a person convicted of a class “A” felony and sentenced to 2 life imprisonment shall not be released on parole unless the 3 governor commutes the sentence to a term of years. 4 Sec. 8. Section 902.1, Code Supplement 2011, is amended by 5 adding the following new subsection: 6 NEW SUBSECTION . 3. Notwithstanding subsection 1, upon 7 return of a plea or verdict of guilty to the offense of murder 8 in the first degree, kidnapping, and sexual abuse under section 9 902.15, and a return of a verdict in favor of a sentence of 10 death in a penalty proceeding conducted as provided in section 11 901.11, the court shall enter a judgment of conviction and 12 shall commit the defendant into the custody of the director 13 of the Iowa department of corrections. The sentence shall 14 be carried out by the administration of a lethal injection 15 pursuant to rules adopted by the board of corrections. If 16 a defendant, for whom a warrant of execution is issued, is 17 pregnant, the execution shall not take place until after the 18 defendant is no longer pregnant. If a defendant, for whom 19 a warrant of execution is issued, is suffering from such a 20 diseased or deranged condition of the mind as to prevent the 21 defendant from knowing the nature and quality of the act 22 the defendant has been convicted of, or from understanding 23 that trial on the offense has taken place and that execution 24 proceedings are about to take place, or otherwise causes the 25 defendant to lack the capacity to understand the sentence which 26 has been imposed and to participate in any legal proceedings 27 relating to the sentence, the execution shall not take place 28 until after the defendant’s capacity is restored. If the 29 director of the department of corrections or the defendant’s 30 counsel files a request with the court which issued the warrant 31 of execution, alleging that the defendant suffers from such 32 a diseased or deranged condition, a hearing on the matter 33 shall be held in the manner provided in section 812A.1. If a 34 defendant was under the age of eighteen at the time the offense 35 -11- LSB 5867XS (3) 84 jm/rj 11/ 23

S.F. 2095 was committed, the defendant shall be sentenced as provided 1 in subsection 1. For the purposes of this section, “lethal 2 injection” means a continuous intravenous injection of a lethal 3 substance sufficient to cause death. 4 Sec. 9. NEW SECTION . 902.15 First degree murder, 5 kidnapping, and sexual abuse. 6 A person who commits murder in the first degree, kidnapping, 7 and sexual abuse with respect to the same victim, who is not 8 mentally retarded or mentally ill, and who is age eighteen or 9 older at the time the offense is committed, shall be eligible 10 for a sentence of death under section 902.1, subsection 3, if 11 the victim was a minor. 12 For purposes of this section, “mentally retarded” means 13 significant subaverage general intellectual functioning 14 accompanied by significant deficits or impairments in adaptive 15 functioning manifested in the developmental period, but no 16 later than the age of eighteen years, and accompanied by 17 deficits in adaptive behavior. 18 For purposes of this section, “mentally ill” means the 19 condition of a person who is suffering from a chronic and 20 persistent serious mental disease or disorder and who, by 21 reason of that condition, lacks sufficient judgment to make 22 responsible decisions regarding treatment and is reasonably 23 likely to injure the person’s self or others who may come into 24 contact with the person if the person is allowed to remain at 25 liberty without treatment. 26 Sec. 10. NEW SECTION . 902.16 Data collection for death 27 penalty. 28 1. The supreme court shall collect data on all murder, 29 kidnapping, and sexual abuse charges in which the death 30 penalty is or was not waived, which are filed and processed 31 in the courts in this state. This data may be used by the 32 supreme court to determine whether death sentences imposed 33 are excessive or disproportionate, or under the influence of 34 prejudice as a result of racial discrimination under section 35 -12- LSB 5867XS (3) 84 jm/rj 12/ 23

S.F. 2095 814.28. The court shall make this data available to litigants 1 in death penalty cases. 2 2. Data collected by public officials concerning factors 3 relevant to the imposition of the death sentence shall be made 4 publicly available. 5 Sec. 11. NEW SECTION . 903C.1 Executions —— refusal to 6 perform. 7 An employee of the state who may lawfully perform, assist, or 8 participate in the execution of a person pursuant to section 9 902.1, and rules adopted by the department of corrections, 10 shall not be required to perform, assist, or participate in 11 the execution. State employees who refuse to perform, assist, 12 or participate in the execution of a person shall not be 13 discriminated against in any way, including but not limited 14 to employment, promotion, advancement, transfer, licensing, 15 education, training, or the granting of any privileges or 16 appointments because of the refusal to perform, assist, or 17 participate in the execution. 18 Sec. 12. Section 904.105, Code 2009, is amended by adding 19 the following new subsection: 20 NEW SUBSECTION . 9A. Adopt rules pursuant to chapter 17A 21 pertaining to executions of persons convicted of murder, 22 kidnapping, and sexual abuse under section 902.15. Rules 23 adopted shall include, but are not limited to, rules permitting 24 the witnessing of executions by members of the public and the 25 victim’s family. Invitations to witness an execution shall at 26 least be extended to the following representatives of the news 27 media: 28 a. A representative from a wire service serving Iowa. 29 b. A representative from a broadcasting network serving 30 Iowa. 31 c. A representative from a television station located in 32 Iowa. 33 d. A representative from a radio station located in Iowa. 34 e. A representative from a daily newspaper published in 35 -13- LSB 5867XS (3) 84 jm/rj 13/ 23

S.F. 2095 Iowa. 1 f. A representative from a weekly newspaper published in 2 Iowa. 3 g. A representative from the news media from the community 4 in which the condemned person resided, if that community is 5 located in Iowa. 6 Sec. 13. 7 Rules of criminal procedure, Iowa court rules, are amended 8 by adding the following four sections of this Act. 9 Sec. 14. 10 2.___ DEATH PENALTY — PROCEDURE. 11 2.___(1) If a notice of intent to seek the death penalty 12 has been filed, objections to the imposition of the death 13 penalty based upon allegations that a defendant was mentally 14 retarded at the time of the commission of the offense shall 15 be raised within the time provided for the filing of pretrial 16 motions under R.Cr.P. 2.11, Iowa court rules. The court may, 17 for good cause shown, allow late filing of the motion. Hearing 18 on the motion shall be held prior to trial and the burden of 19 proof shall be on the defendant to prove mental retardation 20 by a preponderance of the evidence. However, a rebuttable 21 presumption of mental retardation arises if a defendant has 22 an intelligence quotient of seventy or below. A finding of 23 the court that the evidence presented by the defendant at the 24 hearing does not preclude the imposition of the death penalty 25 under this rule and Iowa Code section 902.15 shall not preclude 26 the introduction of evidence of mental retardation during the 27 penalty proceeding. If the court finds that the evidence 28 presented by the defendant does not preclude the imposition 29 of the death penalty, evidence of mental retardation may be 30 reviewed by the jury during the penalty proceeding and the jury 31 shall not be informed of the finding in the initial proceeding 32 at any time during the penalty proceeding. 33 2.___(2) Upon a finding or plea that a defendant is guilty of 34 murder, kidnapping, and sexual abuse under Iowa Code section 35 -14- LSB 5867XS (3) 84 jm/rj 14/ 23

S.F. 2095 902.15, in an initial proceeding, if a notice of intent to seek 1 the death penalty has been filed and has not been waived, the 2 court shall conduct a separate penalty proceeding to determine 3 whether the defendant shall be sentenced to death or to life 4 imprisonment. The penalty proceeding shall be conducted in 5 the trial court before the trial jury, or the court, if there 6 is no jury, no sooner than twenty-four hours after the return 7 of the verdict or plea in the initial proceeding. In the 8 penalty proceeding, additional evidence may be presented as to 9 the conviction for murder, kidnapping, and sexual abuse under 10 section 902.15, or any aggravating or mitigating circumstance 11 which may exist. Presentation of evidence which is relevant 12 to the existence of an aggravating or mitigating circumstance 13 shall not be bound by the rules of evidence. This subsection 14 does not authorize the introduction of any evidence secured in 15 violation of the Constitution of the United States or of the 16 Constitution of the State of Iowa. The state and the defendant 17 or the defendant’s counsel shall be permitted to cross-examine 18 witnesses and to present arguments for or against a sentence of 19 death. 20 2.___(3) On conclusion of the presentation of the evidence 21 in the penalty proceeding, the state and the defendant or 22 the defendant’s counsel shall be permitted to make closing 23 arguments, including any rebuttal arguments, in the same manner 24 as in the initial proceeding and the court shall submit each of 25 the following issues to the jury: 26 a. Whether one or more aggravating circumstances outweigh 27 any one or more mitigating circumstances. 28 b. Whether the defendant shall be sentenced to death. 29 If the case is not tried to a jury, the court shall determine 30 the issues. 31 2.___(4) The state must prove the issue in rule 2.___(3)(a) 32 beyond a reasonable doubt, and the jury, or the court if there 33 is no jury, shall return a special verdict of “yes” or “no” on 34 each issue. 35 -15- LSB 5867XS (3) 84 jm/rj 15/ 23

S.F. 2095 2.___(5) If the case is tried to a jury, the court shall 1 charge the jury that: 2 a. It shall answer any issue “yes” if it agrees unanimously. 3 b. It shall answer any issue “no” if the jurors unanimously 4 agree that the answer is “no” or if the jurors do not 5 unanimously agree that the answer is “yes”. 6 2.___(6) Concurrently with the return of the special 7 verdicts under rule 2.___(3), the jury, or the court if there 8 is no jury, shall also return special verdicts as follows: 9 a. Which aggravating circumstances were established beyond 10 a reasonable doubt and were considered in reaching the verdict 11 returned on the issue specified in rule 2.___(3)(a). 12 b. Which mitigating circumstances were established and 13 were considered in reaching the verdict returned on the issue 14 specified in rule 2.___(3)(a). 15 2.___(7) If the jury, or the court if there is no jury, 16 returns an affirmative finding on all applicable issues, the 17 court shall sentence the defendant to death. If the jury or 18 the court returns a negative finding on any applicable issue, 19 the court shall sentence the defendant to the custody of the 20 director of the department of corrections for confinement for 21 the rest of the defendant’s life. 22 2.___(8) After a verdict has been rendered it shall be 23 recorded on the jury verdict form and shall be read and 24 recorded in open court. The jurors shall be collectively asked 25 by the court whether the verdict returned is their true and 26 correct verdict. Even though no juror makes any declaration 27 to the contrary, the jury shall, if either party so requests, 28 be polled and each juror shall be separately asked whether the 29 verdict rendered by the jury foreperson is the juror’s true 30 and correct verdict. If, upon either the collective or the 31 separate inquiry, any juror denies that the verdict is the 32 juror’s verdict, the court shall refuse to accept the verdict. 33 The court may direct inquiry or permit inquiry by counsel to 34 ascertain whether any juror has been subjected to coercion 35 -16- LSB 5867XS (3) 84 jm/rj 16/ 23

S.F. 2095 or has become confused during the jury deliberation process. 1 The court may, as appropriate, direct the jury to resume 2 deliberation in the case. If no disagreement on the verdict 3 is expressed by any of the jurors, the court shall discharge 4 the jury. 5 2.___(9) Provisions relating to deferred judgment, deferred 6 sentence, suspended sentence, reconsideration of sentence, 7 probation, parole, or work release contained in Iowa Code 8 chapters 901 through 909 do not apply to a conviction of 9 murder, kidnapping, and sexual abuse under Iowa Code section 10 902.15 if the defendant is sentenced to death. 11 Sec. 15. 12 2.___ AUTOMATIC REVIEW — STAY OF EXECUTION OF JUDGMENT. 13 2.___(1) A judgment of conviction and sentence of death 14 shall be reviewed automatically in the manner provided in Iowa 15 Code section 814.28, and the Iowa supreme court has exclusive 16 jurisdiction of the review. 17 2.___(2) Upon entry of judgment and sentence of death, the 18 trial court shall prepare a complete record and transcript of 19 the action in the manner provided in the rules of criminal 20 procedure and shall docket the record and transcript with the 21 clerk of the supreme court. 22 2.___(3) The execution of judgment of the trial court is 23 stayed as a matter of law from the time of its entry until 24 the judgment of the supreme court is certified to and entered 25 by the trial court. Upon entry of a judgment of the supreme 26 court which affirms the conviction and sentence, the stay of 27 execution of judgment terminates as a matter of law. 28 2.___(4) All court costs required due to the automatic 29 preparation of the record and transcript, docketing with the 30 supreme court, and stay of execution of judgment shall be 31 assessed to the state. 32 Sec. 16. 33 2.___ ISSUANCE OF WARRANT. 34 2.___(1) Upon entry by the trial court of the judgment of 35 -17- LSB 5867XS (3) 84 jm/rj 17/ 23

S.F. 2095 the supreme court affirming a judgment and sentence of death, 1 a district judge shall within five days of the entry issue 2 a warrant under the seal of the court for the execution of 3 the sentence of death. The warrant shall specifically set 4 forth the offense and the fact of conviction, shall state 5 the judgment and sentence of the court, shall state that the 6 judgment and sentence were affirmed by the supreme court and 7 the date of entry of judgment of the supreme court in the 8 trial court, and shall, subject to the requirements of Iowa 9 Code section 902.1, subsection 3, specify a range of five days 10 for execution of the defendant which shall be not less than 11 fifty nor more than sixty days after the date of entry in the 12 trial court of the judgment of the supreme court affirming the 13 judgment and sentence of death. The warrant shall be directed 14 to the director of the department of corrections commanding 15 the director to cause the warrant to be executed within the 16 dates specified. The trial court shall deliver the warrant 17 to the sheriff of the county in which judgment of conviction 18 was entered and the sheriff shall deliver the warrant to the 19 director of the department of corrections. The director of 20 the department of corrections shall acknowledge receipt of the 21 warrant and the defendant, and the sheriff shall return the 22 acknowledgment to the office of the clerk of the trial court 23 from which the warrant was issued. 24 2.___(2) Immediately after issuance of a warrant ordering 25 a sentence of death, the clerk of the trial court issuing the 26 warrant shall transmit by certified mail to the governor a copy 27 of the indictment, the plea, the verdict and special findings, 28 the affirmation of judgment and sentence by the supreme court, 29 and the complete transcript of the trial court. 30 2.___(3) Notwithstanding rule 2.___(1), if a defendant, 31 for whom a warrant of execution is issued, is pregnant, the 32 execution shall not take place until after the defendant 33 is no longer pregnant. Notwithstanding rule 2.___(1), if 34 a defendant, for whom a warrant of execution is issued, is 35 -18- LSB 5867XS (3) 84 jm/rj 18/ 23