Senate File 239 - Introduced SENATE FILE 239 BY BEHN , CHELGREN , GARRETT , KAPUCIAN , GUTH , CHAPMAN , FEENSTRA , ZAUN , and ROZENBOOM A BILL FOR An Act creating the penalty of death for the commission of the 1 multiple offense of murder in the first degree, kidnapping, 2 and sexual abuse against the same minor, providing a 3 penalty, and including effective date and applicability 4 provisions. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 6 TLSB 1101XS (4) 86 jm/rj

S.F. 239 Section 1. Section 13B.4, Code 2015, 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 the multiple offense of murder 9 in the first degree, kidnapping, and sexual abuse under section 10 902.15, and the state has given notice of intent to seek the 11 death penalty or in cases in which a sentence of death is to be 12 imposed. 13 b. Conduct or sponsor specialized training programs for 14 attorneys representing persons who may be executed. 15 Sec. 2. NEW SECTION . 602.10112 Qualifications of counsel 16 in death penalty cases. 17 The supreme court shall prescribe rules which establish 18 minimum standards and procedures by which attorneys may become 19 qualified to provide legal services as lead counsel in cases in 20 which a sentence of death may be or is to be imposed. 21 Sec. 3. NEW SECTION . 812A.1 Procedure to determine sanity 22 of condemned inmate. 23 1. At any time prior to execution of an inmate under section 24 902.1, if the director of the department of corrections or 25 the counsel for a person who is under a sentence of execution 26 has cause to believe that the inmate is suffering from such 27 a diseased or deranged condition of the mind as to prevent 28 the defendant from knowing the nature and quality of the act 29 the defendant has been convicted of, or from understanding 30 that trial on the offense has taken place and that execution 31 proceedings are about to take place, or to otherwise cause the 32 defendant to lack the capacity to understand the sentence which 33 has been imposed and to participate in any legal proceedings 34 relating to the sentence, the director or counsel may file a 35 -1- LSB 1101XS (4) 86 jm/rj 1/ 23

S.F. 239 request with the court that issued the warrant for execution 1 for a determination of the inmate’s sanity. If the court 2 determines that there is not sufficient reason to believe 3 that the inmate is insane, the court shall enter an order 4 denying the request and shall state the grounds for denying the 5 request. If the court believes that there is sufficient reason 6 to believe that the inmate is insane, the court shall suspend 7 the execution and conduct a hearing to determine the sanity of 8 the inmate. 9 2. At the hearing, the court shall determine the issue of 10 the inmate’s sanity. Prior to the hearing, the court shall 11 appoint two licensed physicians or licensed psychologists, or 12 one licensed physician and one licensed psychologist, who are 13 qualified by training and practice, for purposes of conducting 14 a psychiatric or psychological examination of the inmate. The 15 physicians or psychologists shall examine the inmate and report 16 any findings in writing to the court within ten days after 17 the order of examination is issued. The inmate shall have 18 the right to present evidence and cross-examine any witnesses 19 at the hearing. Any statement made by the inmate during the 20 course of any examination provided for in this section, whether 21 or not the inmate consents to the examination, shall not be 22 admitted into evidence against the inmate in any criminal 23 proceeding for purposes other than a determination of the 24 inmate’s sanity. 25 3. If, at the conclusion of a hearing held pursuant to 26 this section, the court determines that the inmate is sane, 27 the court shall enter an order setting a date for the inmate’s 28 execution, which shall be carried into effect in the same 29 manner as provided in the original sentence. A copy of the 30 order shall be sent to the director of the department of 31 corrections and the governor. 32 4. If, at the conclusion of a hearing held pursuant to this 33 section, the court determines that the inmate is insane, the 34 court shall suspend the execution until further order. At any 35 -2- LSB 1101XS (4) 86 jm/rj 2/ 23

S.F. 239 time after issuance of the order, if the court has sufficient 1 reason to believe that the inmate has become sane, the court 2 shall again determine the sanity of the inmate as provided 3 by this section. Proceedings pursuant to this section may 4 continue to be held at such times as the court orders until 5 it is either determined that the inmate is sane or incurably 6 insane. 7 Sec. 4. NEW SECTION . 814.28 Review of death sentence. 8 1. In a case in which a sentence of death is imposed, the 9 supreme court shall automatically review the judgment and 10 sentence. The court’s review of the case shall be de novo. The 11 case shall not be transferred to the court of appeals. 12 2. A review by the supreme court of a judgment and sentence 13 imposing the punishment of death has priority over all other 14 criminal and other actions pending before the supreme court. 15 3. The supreme court shall review the trial and judgment, 16 and shall separately review the sentencing proceeding. Upon 17 determining that errors did not occur at the trial requiring 18 reversal or modification of the judgment, the supreme court 19 shall proceed to determine if the sentence of death is lawfully 20 imposed. In its review of the sentencing proceeding the 21 supreme court shall determine all of the following: 22 a. Whether the sentence of death was imposed capriciously or 23 under the influence of prejudice or other arbitrary factor. 24 b. Whether the special verdicts returned under section 25 901.11 are supported by the evidence. 26 c. Whether the sentence of death is excessive or 27 disproportionate to the penalty imposed in similar cases, 28 considering both the crime and the defendant. 29 4. If the supreme court determines that the sentence of 30 death was not lawfully imposed, the supreme court shall set 31 aside the sentence and shall remand the case to the trial 32 court for a second sentencing proceeding to determine if the 33 imposition of death is warranted. 34 5. If the supreme court affirms the judgment and sentence 35 -3- LSB 1101XS (4) 86 jm/rj 3/ 23

S.F. 239 of death, the clerk of the supreme court shall certify the 1 judgment of the supreme court under the seal of the supreme 2 court to the clerk of the trial court. 3 Sec. 5. Section 815.10, Code 2015, is amended by adding the 4 following new subsection: 5 NEW SUBSECTION . 1A. If two attorneys have not already 6 been appointed pursuant to section 13B.4 or 13B.9, the court 7 shall appoint, for each indigent person who is charged with 8 the multiple offense of murder, kidnapping, and sexual abuse 9 under section 902.15, and in which a notice of intent to 10 seek the death penalty has been filed, two attorneys who are 11 qualified under section 602.10112 to represent the person in 12 the proceedings and in all state legal proceedings which take 13 place from the time the person is indicted or arraigned until 14 the person is sentenced on the charge. In addition, if at 15 any point in federal postconviction proceedings an indigent 16 person is not afforded court-appointed counsel, the state shall 17 provide counsel to the person to present any claims determined 18 meritorious by the federal court if the person is not otherwise 19 represented by legal counsel. Only private attorneys and 20 public defenders who are qualified to provide representation in 21 cases in which the death penalty may be imposed are eligible 22 for appointment or assignment to a case in which the death 23 penalty may be imposed. 24 Sec. 6. NEW SECTION . 901.11 Murder proceedings —— request 25 for death penalty —— penalty proceedings. 26 1. If a notice of intent to seek the death penalty has 27 been filed, objections to the imposition of the death penalty 28 based upon allegations that a defendant was intellectually 29 disabled or mentally ill at the time of the commission of 30 the offense shall be raised within the time provided for the 31 filing of pretrial motions under rule of criminal procedure 32 2.11, Iowa court rules. The court may, for good cause shown, 33 allow late filing of the motion. Hearing on the motion shall 34 be held prior to trial and the burden of proof shall be on the 35 -4- LSB 1101XS (4) 86 jm/rj 4/ 23

S.F. 239 defendant to prove intellectual disability or mental illness 1 by a preponderance of the evidence. However, a rebuttable 2 presumption of intellectual disability arises if a defendant 3 has an intelligence quotient of seventy or below. If the 4 court finds that the defendant is intellectually disabled, the 5 defendant, if convicted of the multiple offense of murder, 6 kidnapping, and sexual abuse under section 902.15, shall not be 7 sentenced to death but shall be sentenced to life imprisonment 8 in the manner provided in section 902.1, subsection 1. A 9 finding by the court that the evidence presented by the 10 defendant at the hearing does not preclude the imposition of 11 the death penalty under this section and section 902.15 shall 12 not preclude the introduction of evidence of intellectual 13 disability or mental illness during the penalty proceeding. 14 If the court finds that evidence of intellectual disability 15 or mental illness does not preclude imposition of the death 16 penalty, evidence of intellectual disability or mental illness 17 may be reviewed by the jury in the penalty proceeding and 18 the jury shall not be informed of the finding in the initial 19 proceeding at any time during the penalty proceeding. 20 2. If at the trial on a charge of the multiple offense of 21 murder, kidnapping, and sexual abuse under section 902.15, the 22 state intends to request that the death penalty be imposed 23 under section 902.1, subsection 3, the prosecutor shall file a 24 notice of intent to seek the death penalty, at the time of and 25 as part of the information or indictment filed in the case. 26 3. If a notice of intent to seek the death penalty has been 27 filed, the trial shall be conducted in bifurcated proceedings 28 before the same trier of fact. During the initial proceeding, 29 the jury, or the court if the defendant waives the right to a 30 jury trial, shall decide only whether the defendant is guilty 31 or not guilty of the multiple offense of murder, kidnapping, 32 and sexual abuse under section 902.15. 33 a. If, in the initial proceeding, the court or jury finds 34 the defendant guilty of, or the defendant pleads guilty to, an 35 -5- LSB 1101XS (4) 86 jm/rj 5/ 23

S.F. 239 offense other than the multiple offense of murder, kidnapping, 1 and sexual abuse under section 902.15, the court shall sentence 2 the defendant in accordance with the sentencing procedures set 3 forth in rule of criminal procedure 2.23, Iowa court rules, and 4 chapters 901 through 909, which are applicable to the offense. 5 b. If the court or jury finds the defendant guilty of, 6 or the defendant pleads guilty to, the multiple offense of 7 murder, kidnapping, and sexual abuse under section 902.15, but 8 the prosecuting attorney waives the death penalty, the court 9 shall sentence the defendant to life imprisonment in accordance 10 with the sentencing procedures set forth in rule of criminal 11 procedure 2.23, Iowa court rules, and chapters 901 through 909, 12 which are otherwise applicable to convictions of murder in the 13 first degree, kidnapping, and sexual abuse. 14 c. If the court or jury finds the defendant guilty of the 15 multiple offense of murder, kidnapping, and sexual abuse under 16 section 902.15, or a defendant enters a plea of guilty in the 17 initial proceeding, and the prosecuting attorney does not waive 18 imposition of the death penalty, a penalty proceeding shall be 19 held in the manner provided in subsections 4 through 12. 20 4. No sooner than twenty-four hours after a verdict of 21 guilty or a plea of guilty to the multiple offense of murder, 22 kidnapping, and sexual abuse under section 902.15 is returned 23 in the initial proceeding, a penalty proceeding shall be held 24 to determine whether the defendant shall be sentenced to death 25 or to life imprisonment. The proceeding shall be conducted 26 in the trial court before the trial jury, or the court if the 27 defendant has waived the right to a jury trial or has waived 28 the right for the proceeding to be before the trial jury. Both 29 the state and the defendant shall have the right to present 30 opening statements at the commencement of the proceeding. In 31 the proceeding, evidence relevant to the existence of any 32 aggravating or mitigating circumstances may be presented as 33 follows: 34 a. The state or the defendant may present evidence relevant 35 -6- LSB 1101XS (4) 86 jm/rj 6/ 23

S.F. 239 to the conviction of the multiple offense enumerated in section 1 902.15 and any aggravating circumstances other than juvenile 2 delinquency adjudications for offenses which carry penalties 3 equivalent to the penalties imposed for simple or serious 4 misdemeanors. The state may introduce evidence of the actual 5 harm caused by the commission of the multiple offense of 6 murder, kidnapping, and sexual abuse under section 902.15, 7 including but not limited to evidence relating to the life of 8 the victim and the impact of the loss of the victim to the 9 victim’s family and society. 10 b. The defendant may present evidence that the defendant 11 was intellectually disabled at the time of the commission of 12 the offense. The burden of proof shall be on the defendant 13 to prove intellectual disability by a preponderance of the 14 evidence. However, a rebuttable presumption of intellectual 15 disability arises if a defendant has an intelligence quotient 16 of seventy or below. 17 c. The state or the defendant may present evidence relevant 18 to any mitigating circumstances which may exist. Mitigating 19 circumstances may include the following circumstances: 20 (1) The defendant was under the influence of an extreme 21 mental or emotional disturbance insufficient to constitute a 22 defense. 23 (2) The age of the defendant at the time of the offense. 24 (3) The defendant’s capacity to appreciate the wrongfulness 25 of the defendant’s conduct and to conform that conduct to the 26 requirements of law was significantly impaired as a result of a 27 mental disease or defect or intellectual disability, but not to 28 a degree sufficient to constitute a defense. 29 (4) The defendant has no significant history of prior adult 30 criminal activity. 31 (5) The defendant acted under extreme duress or under the 32 substantial domination of another person. 33 (6) The defendant did not directly commit the multiple 34 offense of murder, kidnapping, and sexual abuse and the 35 -7- LSB 1101XS (4) 86 jm/rj 7/ 23

S.F. 239 defendant did not intend to kill or anticipate that lethal 1 force would be used. 2 (7) Any other factor which is relevant to the defendant’s 3 character or record or to the circumstances of the offense. 4 d. The state and the defendant or the defendant’s counsel 5 shall be permitted to present and cross-examine witnesses and 6 present arguments for or against a sentence of death. Evidence 7 regarding aggravating and mitigating circumstances shall not 8 be governed by the rules governing admissibility of evidence, 9 except that introduction of evidence secured in violation of 10 the Constitution of the United States or of the Constitution of 11 the State of Iowa shall not be permitted. 12 5. At the conclusion of presentation of evidence in 13 the penalty proceeding, the state and the defendant or the 14 defendant’s counsel shall be permitted to make closing 15 arguments, including any rebuttal arguments, in the same manner 16 as in the initial proceeding and the following issues shall be 17 determined by the jury or the court if there is no jury: 18 a. Whether the aggravating circumstance or circumstances 19 have been established beyond a reasonable doubt and outweigh 20 any one or more mitigating circumstances. 21 b. Whether the defendant shall be sentenced to death. 22 6. A recommendation for a sentence of death shall not be 23 permitted if the recommendation is based on the race, color, 24 religious beliefs, national origin, or sex of the defendant 25 or of any victim, or based on any other protected class under 26 chapter 216. After submission of the issues, but prior to the 27 return of a finding in the penalty proceeding, if the matter is 28 tried before a jury, the court shall instruct the jury that in 29 considering whether a sentence of death is justified, it shall 30 not consider race, color, religious beliefs, national origin, 31 or sex of the defendant or of any victim, or consider any other 32 protected class under chapter 216. The court shall further 33 instruct the jury that it shall not return a sentence of death 34 unless it concludes that such a sentence would be recommended 35 -8- LSB 1101XS (4) 86 jm/rj 8/ 23

S.F. 239 no matter what the race, color, religious beliefs, national 1 origin, sex, or other protected class of the defendant or of 2 any victim may be. 3 7. After submission of the issues, but prior to the 4 commencement of the jury deliberations in the penalty 5 proceeding, the court shall instruct the jury that if the 6 defendant is not sentenced to death, the court is required by 7 law to impose a sentence of imprisonment until death without 8 parole. The court shall further instruct the jury that 9 the sentence of imprisonment until death without parole is 10 required by law if the jury fails to reach a unanimous verdict 11 recommending a sentence of death. 12 8. Concurrently with the return of the findings on the 13 issues submitted under subsection 5, the jury, or the court if 14 there is no jury, shall return special verdicts as follows: 15 a. Which aggravating circumstances were established beyond a 16 reasonable doubt and were considered in reaching the verdict. 17 b. Which mitigating circumstances were established and 18 were considered in reaching the verdict returned on the issue 19 specified in subsection 5, paragraph “a” . 20 9. If the jury, or the court if there is no jury, returns a 21 unanimous affirmative finding on each of the issues submitted 22 under subsection 5, paragraphs “a” and “b” , the court shall 23 enter a judgment of conviction and shall sentence the defendant 24 to death as provided in section 902.1, subsection 3. 25 10. However, if evidence that the defendant was not a 26 major participant in the commission of the multiple offense 27 of murder, kidnapping, and sexual abuse under section 902.15, 28 and that the defendant’s conduct did not manifest a reckless 29 indifference to human life is presented to the jury, or the 30 court if there is no jury, the jury or the court shall also 31 return a special verdict on the issue. If the jury unanimously 32 determines, or the court if there is no jury, finds that a 33 preponderance of evidence exists that shows that the defendant 34 was not a major participant in the commission of the multiple 35 -9- LSB 1101XS (4) 86 jm/rj 9/ 23

S.F. 239 offense of murder, kidnapping, and sexual abuse under section 1 902.15, and that the defendant’s conduct did not manifest a 2 reckless indifference to human life, the court shall enter a 3 judgment of conviction and shall sentence the defendant to life 4 imprisonment as provided in section 902.1, subsection 1, even 5 if the jury or the court returns unanimous affirmative findings 6 on each of the issues submitted under subsection 5. 7 11. If the jury, or the court if there is no jury, returns 8 a negative finding on any of the issues submitted under 9 subsection 5, paragraphs “a” or “b” , the court shall enter a 10 judgment of conviction and shall sentence the defendant to life 11 imprisonment as provided in section 902.1, subsection 1. 12 12. After a verdict has been rendered it shall be recorded 13 on the jury verdict form and shall be read and recorded in open 14 court. The jurors shall be collectively asked by the court 15 whether the verdict returned is their true and correct verdict. 16 Even though no juror makes any declaration to the contrary, the 17 jury shall, if either party so requests, be polled and each 18 juror shall be separately asked whether the verdict rendered by 19 the jury foreperson is the juror’s true and correct verdict. 20 If, upon either the collective or the separate inquiry, any 21 juror denies that the verdict is the juror’s verdict, the court 22 shall refuse to accept the verdict. The court may direct 23 inquiry or permit inquiry by counsel to ascertain whether any 24 juror has been subjected to coercion or has become confused 25 during the jury deliberation process. The court may, as 26 appropriate, direct the jury to resume deliberation in the 27 case. If no disagreement on the verdict is expressed by any of 28 the jurors, the court shall discharge the jury. 29 Sec. 7. Section 902.1, subsection 1, Code 2015, is amended 30 to read as follows: 31 1. Upon Except as otherwise provided in subsection 2 or 32 3, upon a plea of guilty, a verdict of guilty, or a special 33 verdict upon which a judgment of conviction of a class “A” 34 felony may be rendered, the court shall enter a judgment of 35 -10- LSB 1101XS (4) 86 jm/rj 10/ 23

S.F. 239 conviction and shall commit the defendant into the custody of 1 the director of the Iowa department of corrections for the 2 rest of the defendant’s life. Nothing in the Iowa corrections 3 code pertaining to deferred judgment, deferred sentence, 4 suspended sentence, or reconsideration of sentence applies 5 to a sentence of life imprisonment for a class “A” felony, 6 and a person convicted of a class “A” felony and sentenced to 7 life imprisonment shall not be released on parole unless the 8 governor commutes the sentence to a term of years. 9 Sec. 8. Section 902.1, Code 2015, is amended by adding the 10 following new subsection: 11 NEW SUBSECTION . 3. Notwithstanding subsection 1, upon 12 return of a plea or verdict of guilty to the multiple offense 13 of murder in the first degree, kidnapping, and sexual abuse 14 under section 902.15, and a return of a verdict in favor of 15 a sentence of death in a penalty proceeding conducted as 16 provided in section 901.11, the court shall enter a judgment 17 of conviction and shall commit the defendant into the custody 18 of the director of the Iowa department of corrections. The 19 sentence shall be carried out by the administration of a 20 lethal injection pursuant to rules adopted by the board of 21 corrections. If a defendant, for whom a warrant of execution 22 is issued, is pregnant, the execution shall not take place 23 until after the defendant is no longer pregnant. If a 24 defendant, for whom a warrant of execution is issued, is 25 suffering from such a diseased or deranged condition of the 26 mind as to prevent the defendant from knowing the nature 27 and quality of the act the defendant has been convicted 28 of, or from understanding that trial on the offense has 29 taken place and that execution proceedings are about to take 30 place, or otherwise causes the defendant to lack the capacity 31 to understand the sentence which has been imposed and to 32 participate in any legal proceedings relating to the sentence, 33 the execution shall not take place until after the defendant’s 34 capacity is restored. If the director of the department of 35 -11- LSB 1101XS (4) 86 jm/rj 11/ 23

S.F. 239 corrections or the defendant’s counsel files a request with the 1 court which issued the warrant of execution, alleging that the 2 defendant suffers from such a diseased or deranged condition, 3 a hearing on the matter shall be held in the manner provided 4 in section 812A.1. For the purposes of this section, “lethal 5 injection” means a continuous intravenous injection of a lethal 6 substance sufficient to cause death. 7 Sec. 9. NEW SECTION . 902.15 Commission of the multiple 8 offense of first degree murder, kidnapping, and sexual abuse. 9 A person who commits the multiple offense of murder in the 10 first degree, kidnapping, and sexual abuse with respect to the 11 same victim, who is not intellectually disabled or mentally 12 ill, and who is age eighteen or older at the time the offense 13 is committed, shall be eligible for a sentence of death under 14 section 902.1, subsection 3, if the victim was a minor. 15 For purposes of this section, “intellectually disabled” 16 means significant subaverage general intellectual functioning 17 accompanied by significant deficits or impairments in adaptive 18 functioning manifested in the developmental period, but no 19 later than the age of eighteen years, and accompanied by 20 deficits in adaptive behavior. 21 For purposes of this section, “mentally ill” means the 22 condition of a person who is suffering from a chronic and 23 persistent serious mental disease or disorder and who, by 24 reason of that condition, lacks sufficient judgment to make 25 responsible decisions regarding treatment and is reasonably 26 likely to injure the person’s self or others who may come into 27 contact with the person if the person is allowed to remain at 28 liberty without treatment. 29 Sec. 10. NEW SECTION . 902.16 Data collection for death 30 penalty. 31 1. The supreme court shall collect data on all multiple 32 offenses of murder, kidnapping, and sexual abuse charges in 33 which the death penalty is or was not waived, which are filed 34 and processed in the courts in this state. This data may be 35 -12- LSB 1101XS (4) 86 jm/rj 12/ 23

S.F. 239 used by the supreme court to determine whether death sentences 1 imposed are excessive or disproportionate, or under the 2 influence of prejudice under section 814.28. The court shall 3 make this data available to litigants in death penalty cases. 4 2. Data collected by public officials concerning factors 5 relevant to the imposition of the death sentence shall be made 6 publicly available. 7 Sec. 11. NEW SECTION . 903C.1 Executions —— refusal to 8 perform. 9 An employee of the state who may lawfully perform, assist, or 10 participate in the execution of a person pursuant to section 11 902.1, and rules adopted by the department of corrections, 12 shall not be required to perform, assist, or participate in 13 the execution. State employees who refuse to perform, assist, 14 or participate in the execution of a person shall not be 15 discriminated against in any way, including but not limited 16 to employment, promotion, advancement, transfer, licensing, 17 education, training, or the granting of any privileges or 18 appointments because of the refusal to perform, assist, or 19 participate in the execution. 20 Sec. 12. Section 904.105, Code 2015, is amended by adding 21 the following new subsection: 22 NEW SUBSECTION . 9A. Adopt rules pursuant to chapter 17A 23 pertaining to executions of persons convicted of the multiple 24 offense of murder, kidnapping, and sexual abuse under section 25 902.15. Rules adopted shall include but are not limited to 26 rules permitting the witnessing of executions by members of 27 the public and the victim’s family. Invitations to witness 28 an execution shall at least be extended to the following 29 representatives of the news media: 30 a. A representative from a wire service serving Iowa. 31 b. A representative from a broadcasting network serving 32 Iowa. 33 c. A representative from a television station located in 34 Iowa. 35 -13- LSB 1101XS (4) 86 jm/rj 13/ 23

S.F. 239 d. A representative from a radio station located in Iowa. 1 e. A representative from a daily newspaper published in 2 Iowa. 3 f. A representative from a weekly newspaper published in 4 Iowa. 5 g. A representative from the news media from the community 6 in which the condemned person resided, if that community is 7 located in Iowa. 8 Sec. 13. 9 Rules of criminal procedure, Iowa court rules, are amended 10 by adding the following four sections of this Act. 11 Sec. 14. 2.___ DEATH PENALTY — PROCEDURE. 12 2.___(1) If a notice of intent to seek the death penalty has 13 been filed, objections to the imposition of the death penalty 14 based upon allegations that a defendant was intellectually 15 disabled at the time of the commission of the multiple offense 16 shall be raised within the time provided for the filing of 17 pretrial motions under R.Cr.P. 2.11, Iowa court rules. The 18 court may, for good cause shown, allow late filing of the 19 motion. Hearing on the motion shall be held prior to trial 20 and the burden of proof shall be on the defendant to prove 21 intellectual disability by a preponderance of the evidence. 22 However, a rebuttable presumption of intellectual disability 23 arises if a defendant has an intelligence quotient of seventy 24 or below. A finding of the court that the evidence presented 25 by the defendant at the hearing does not preclude the 26 imposition of the death penalty under this rule and Iowa Code 27 section 902.15 shall not preclude the introduction of evidence 28 of intellectual disability during the penalty proceeding. If 29 the court finds that the evidence presented by the defendant 30 does not preclude the imposition of the death penalty, evidence 31 of intellectual disability may be reviewed by the jury during 32 the penalty proceeding and the jury shall not be informed of 33 the finding in the initial proceeding at any time during the 34 penalty proceeding. 35 -14- LSB 1101XS (4) 86 jm/rj 14/ 23

S.F. 239 2.___(2) Upon a finding or plea that a defendant is guilty 1 of the multiple offense of murder, kidnapping, and sexual abuse 2 under Iowa Code section 902.15, in an initial proceeding, if 3 a notice of intent to seek the death penalty has been filed 4 and has not been waived, the court shall conduct a separate 5 penalty proceeding to determine whether the defendant shall 6 be sentenced to death or to life imprisonment. The penalty 7 proceeding shall be conducted in the trial court before the 8 trial jury, or the court if there is no jury, no sooner than 9 twenty-four hours after the return of the verdict or plea in 10 the initial proceeding. In the penalty proceeding, additional 11 evidence may be presented as to the conviction for the multiple 12 offense of murder, kidnapping, and sexual abuse under section 13 902.15, or any aggravating or mitigating circumstance which 14 may exist. Presentation of evidence which is relevant to 15 the existence of an aggravating or mitigating circumstance 16 shall not be bound by the rules of evidence. This subrule 17 does not authorize the introduction of any evidence secured in 18 violation of the Constitution of the United States or of the 19 Constitution of the State of Iowa. The state and the defendant 20 or the defendant’s counsel shall be permitted to cross-examine 21 witnesses and to present arguments for or against a sentence of 22 death. 23 2.___(3) On conclusion of the presentation of the evidence 24 in the penalty proceeding, the state and the defendant or 25 the defendant’s counsel shall be permitted to make closing 26 arguments, including any rebuttal arguments, in the same manner 27 as in the initial proceeding and the court shall submit each of 28 the following issues to the jury: 29 a. Whether one or more aggravating circumstances outweigh 30 any one or more mitigating circumstances. 31 b. Whether the defendant shall be sentenced to death. 32 If the case is not tried to a jury, the court shall determine 33 the issues. 34 2.___(4) The state must prove the issue in rule 2.___(3)(a) 35 -15- LSB 1101XS (4) 86 jm/rj 15/ 23

S.F. 239 beyond a reasonable doubt, and the jury, or the court if there 1 is no jury, shall return a special verdict of “yes” or “no” on 2 each issue. 3 2.___(5) If the case is tried to a jury, the court shall 4 charge the jury that: 5 a. It shall answer any issue “yes” if it agrees unanimously. 6 b. It shall answer any issue “no” if the jurors unanimously 7 agree that the answer is “no” or if the jurors do not 8 unanimously agree that the answer is “yes”. 9 2.___(6) Concurrently with the return of the special 10 verdicts under rule 2.___(3), the jury, or the court if there 11 is no jury, shall also return special verdicts as follows: 12 a. Which aggravating circumstances were established beyond 13 a reasonable doubt and were considered in reaching the verdict 14 returned on the issue specified in rule 2.___(3)(a). 15 b. Which mitigating circumstances were established and 16 were considered in reaching the verdict returned on the issue 17 specified in rule 2.___(3)(a). 18 2.___(7) If the jury, or the court if there is no jury, 19 returns an affirmative finding on all applicable issues, the 20 court shall sentence the defendant to death. If the jury or 21 the court returns a negative finding on any applicable issue, 22 the court shall sentence the defendant to the custody of the 23 director of the department of corrections for confinement for 24 the rest of the defendant’s life. 25 2.___(8) After a verdict has been rendered it shall be 26 recorded on the jury verdict form and shall be read and 27 recorded in open court. The jurors shall be collectively asked 28 by the court whether the verdict returned is their true and 29 correct verdict. Even though no juror makes any declaration 30 to the contrary, the jury shall, if either party so requests, 31 be polled and each juror shall be separately asked whether the 32 verdict rendered by the jury foreperson is the juror’s true 33 and correct verdict. If, upon either the collective or the 34 separate inquiry, any juror denies that the verdict is the 35 -16- LSB 1101XS (4) 86 jm/rj 16/ 23

S.F. 239 juror’s verdict, the court shall refuse to accept the verdict. 1 The court may direct inquiry or permit inquiry by counsel to 2 ascertain whether any juror has been subjected to coercion 3 or has become confused during the jury deliberation process. 4 The court may, as appropriate, direct the jury to resume 5 deliberation in the case. If no disagreement on the verdict 6 is expressed by any of the jurors, the court shall discharge 7 the jury. 8 2.___(9) Provisions relating to deferred judgment, deferred 9 sentence, suspended sentence, reconsideration of sentence, 10 probation, parole, or work release contained in Iowa Code 11 chapters 901 through 909 do not apply to a conviction of the 12 multiple offense of murder, kidnapping, and sexual abuse under 13 Iowa Code section 902.15 if the defendant is sentenced to 14 death. 15 Sec. 15. 2.___ AUTOMATIC REVIEW — STAY OF EXECUTION OF 16 JUDGMENT. 17 2.___(1) A judgment of conviction and sentence of death 18 shall be reviewed automatically in the manner provided in Iowa 19 Code section 814.28, and the Iowa supreme court has exclusive 20 jurisdiction of the review. 21 2.___(2) Upon entry of judgment and sentence of death, the 22 trial court shall prepare a complete record and transcript of 23 the action in the manner provided in the rules of criminal 24 procedure and shall docket the record and transcript with the 25 clerk of the supreme court. 26 2.___(3) The execution of judgment of the trial court is 27 stayed as a matter of law from the time of its entry until 28 the judgment of the supreme court is certified to and entered 29 by the trial court. Upon entry of a judgment of the supreme 30 court which affirms the conviction and sentence, the stay of 31 execution of judgment terminates as a matter of law. 32 2.___(4) All court costs required due to the automatic 33 preparation of the record and transcript, docketing with the 34 supreme court, and stay of execution of judgment shall be 35 -17- LSB 1101XS (4) 86 jm/rj 17/ 23

S.F. 239 assessed to the state. 1 Sec. 16. 2.___ ISSUANCE OF WARRANT. 2 2.___(1) Upon entry by the trial court of the judgment of 3 the supreme court affirming a judgment and sentence of death, 4 a district judge shall within five days of the entry issue 5 a warrant under the seal of the court for the execution of 6 the sentence of death. The warrant shall specifically set 7 forth the offense and the fact of conviction, shall state 8 the judgment and sentence of the court, shall state that the 9 judgment and sentence were affirmed by the supreme court and 10 the date of entry of judgment of the supreme court in the 11 trial court, and shall, subject to the requirements of Iowa 12 Code section 902.1, subsection 3, specify a range of five days 13 for execution of the defendant which shall be not less than 14 fifty nor more than sixty days after the date of entry in the 15 trial court of the judgment of the supreme court affirming the 16 judgment and sentence of death. The warrant shall be directed 17 to the director of the department of corrections commanding 18 the director to cause the warrant to be executed within the 19 dates specified. The trial court shall deliver the warrant 20 to the sheriff of the county in which judgment of conviction 21 was entered and the sheriff shall deliver the warrant to the 22 director of the department of corrections. The director of 23 the department of corrections shall acknowledge receipt of the 24 warrant and the defendant, and the sheriff shall return the 25 acknowledgment to the office of the clerk of the trial court 26 from which the warrant was issued. 27 2.___(2) Immediately after issuance of a warrant ordering 28 a sentence of death, the clerk of the trial court issuing the 29 warrant shall transmit by certified mail to the governor a copy 30 of the indictment, the plea, the verdict and special findings, 31 the affirmation of judgment and sentence by the supreme court, 32 and the complete transcript of the trial court. 33 2.___(3) Notwithstanding rule 2.___(1), if a defendant, 34 for whom a warrant of execution is issued, is pregnant, the 35 -18- LSB 1101XS (4) 86 jm/rj 18/ 23