Higgs found guilty
A Washoe County jury has returned a guilty verdict against Chaz Higgs on the charge of first degree murder involving his wife, Kathy Augustine.
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June 29, 2007
US Supreme Court to hear Guantanamo Bay Detainee cases
This morning, presumably as its final act of the term, the United States Supreme Court surprisingly granted rehearing (an act which requires 5 votes) and agreed to hear the Guantanamo Bay Detainnee cases. Scotusblog provides more details at the link.
News from the state bar convention
Much of the information provided at the state bar convention has already been reported here, so I won't repeat it. New information includes the fact that the Administrative Office of the Courts will provide a special CLE course for attorneys and judges on the death penalty (as well as medical malpractice and construction defect cases). Next year's bar convention will be in Santa Barbara. And the new law school dean is delightful. I would write more, especially on the gossip front, but I'm sitting next to Justice Hardesty in a CLE class and he's going to bust me for blogging while CLEing, so I best quit. For the record, he is also delightful.
In the news
Kenny receiving $201,600 Rhodes salary LVRJ 6/29/07
Smith: It's good to know Kenny's getting by, despite drying up of bribe income LVRJ 6/29/07
Surveillance Program: LV police to post cameras. LVRJ 6/29/07
Jury weighs Higgs' fate in wife's deathLVRJ 6/29/07
Judge's lawyers say Rolodex subpoenaed by government
June 28, 2007
Nevada Supreme Court issues 6 decisions
In Schuster v. District Court, the Nevada Supreme Court declined to issue a pretrial petition for a writ of mandamus or prohibition in a case presenting an issue of whether the State was obligated to instruct a grand jury on self-defense. In the en banc decision, the Court concluded that "Although Nevada law requires the State to present exculpatory evidence to a grand jury, requiring the State to also instruct a grand jury on the legal significance of exculpatory evidence simply does not comport with the traditional investigative, accusatory role of a grand jury. Rather, the full presentation and credibility of an accused's defense are matters reserved for the adversarial process of trial."
Other cases include:
Callie v. Bowling - alter ego & foreign judgments
Valdez v. Employer Ins. Co. - worker's compensation
Matter of Discipline of Droz - attorney discipline
Arata v. Faubion - vicarious liability for lending a motor vehicle to an immediate family member.
Ellis v. Carcucci - standard for modification of child custody orders
US Supreme Court issues final decisions for ter
This morning the United States Supreme Court issued its last four opinions for this term.
In the "school cases," the Court issued a historic ruling on race in public policy, the Supreme Court divided 5-4 in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice Roberts wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result.
In Leegin Creative, the Court overrules a 1911 antitrust decision (Dr. Miles), and concludes that challenges to vertical price restraints would be judged the rule-of-reason analysis. The majority opinion author in the 5-4 decision is Justice Kennedy.
In Panetti v. Quarterman, the Court concluded in a 5-4 decision authored by Justice Kennedy (joined by the 4 liberals) ruled that the Fifth Circuit Court had used too restrictive a standard of mental competency in upholding a death sentence for a man whose delusions are said to keep him from fully understanding why he would be executed.
Links to each of the opinions are available here.
As always, gracias to Scotusblog for the quick reports and links to opinions.
In the news
Contract lawyer system changed. LVRJ 6/28/07
Medical marijuana advocate gets prison time. LVRJ 6/28/07
Morrison: Relationships of doctors and lawyers, and their clients, called into question. LVRJ 6/28/07
Davidson trial: jury hears of corruption. LVRJ 6/28/07
Judge's ruling hurts Davidson defense strategy. LVRJ 6/28/07
Higgs murder trial to resume today. LVRJ 6/28/07
Nevada woman convicted in Father's Day killing loses appeal. Nevada Appeal 6/28/07
June 27, 2007
In the news
Controller's death: Suspect attempts suicide. LVRJ 6/27/07
Judge in Higgs case to meet with lawyers. RGJ 6/27/07
Donald Davidson Trial: Another payoff detailed. LVRJ 6/27/07
Don't show her 'Missouri Plan', LVSun 6/27/07
Pacman wants to do the right thing, his lawyer says, but isn't sure what that is. LVSun 6/27/07
And from elsewhere:
The Breakfast Table: A Supreme Conversation by Dahlia Lithwick and Walter Dellinger, Slate (on-going series)
Can I Be An Expert Witness by Kathryn Lewis, Slate 6/26/07
Jon Stewart explains Monday's Supreme Court decisions in "Decisions '07", The Daily Show 6/26/07 (video)
June 26, 2007
Breaking news in Higgs case
The Reno Gazette Journal reports that Chaz Higgs attempted suicide last night. He testified yesterday afternoon and was scheduled to resume testifying today. Channel 4 News reports that he has been hospitalized and his bail has been revoked.
Harmful Error Goes To The State Bar Convention
Faithful and unfaithful readers of Harmful Error are invited to meet for a drink on Wednesday evening after the Welcome Reception. The first round is on me at Sandy's Pub (inside the Resort at Squaw Creek) at around 8 pm.
In the news
Panel punishes attorney for failures. LVRJ 6/26/07
Murder trial: Higgs states innocence. LVRJ 6/26/07
Higgs returns to stand; case wrappin up. RGJ 6/26/07
Broker details alleged payoffs for favorable land ruling. LVRJ 6/26/07
Stolen identity? Take a number. LVSun 6/26/07
In private, they screen judges, and their power could grow. LVSun 6/25/07
Police offer $250,000 in excess force lawsuit. LVRJ 6/26/07
Morrison: Naming names in federal indictment puts faces with letters, numbers. LVRJ 6/26/07
Nevadan has dinner date with Obama (includes notation of Deputy District Attorney Robert Daskas's possible run for Congress)
Death penalty news and updates
The Nevada Supreme Court has ordered a new penalty hearing for Antoine Williams. According to the Las Vegas Vegas Review Journal, the Court found several aggravators to be invalid based upon its 2004 ruling in McConnell v. State.
Last week the Court affirmed the denial of a post-conviction petition filed by capital defendant Greg Bolin.
Yesterday, the US Supreme Court denied certiorari in Archanian v. Nevada.
The ACLU has issued a report, The Persistent Problem of Racial Disparities in the Federal Death Penalty.
The majority and dissenting opinions in Louisiana v. Snyder, which are the subject of yesterday's cert. grant by the US Supreme Court are available.
Study compares fed. PDs and CJA attorneys
Radha Iyengar of Princeton University has released a 38 page paper, An Analysis of the Performance of Federal Indigent Defense Counsel, in which the results of federal public defenders are compared to attorneys compensated on an hourly basis under the Criminal Justice Act. (via Capital Defense Weekly).
June 25, 2007
Guide to the new posts
My vacation is over and I did a lot of catching up with posts over the weekend (and this morning). New posts include the following:
US Supreme Court decides 5 cases, grants cert. in 4
Effective date of AB 510's sentencing enhancements
AB 510 - Big changes for Nevada sentences
Lawyer Biographical Data Form required for all attorneys.
State Bar provides details on new lawyer advertising rules
US Supreme Court decides 5 cases, grants cert. in 4
The United States Supreme Court issued five opinions this morning.
In Hein v. Freedom from Religion Foundation, the Court ruled that taxpayers lack standing to challenge an Executive Branch created program which provides that religious-based community grounds are eligible for federal financial support. The primary opinion was authored by Justice Alito and joined by Chief Justice Roberts and Justice Kennedy. A concurring opinion was authored by Justice Scalia and joined by Justice Thomas. Justice Souter authored a dissenting opinion which was joined by Justices Stevens, Ginsburg and Breyer.
In Wilkie v. Robbins, the Court held that a private landowner could not base a RICO lawsuit against federal personnel in their individual capacities for actions taken that were for the benefit of the federal government rather than private gain. Justice Souter issued the majority opinion, which was joined by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, Alito and Chief Justice Roberts. Justice Thomas authored a concurring opinion which was joined by Justice Scalia. Justice Ginsburg issued an opinion concurring in part and dissenting in part, which was joined by Justice Stevens.
In Morse v. Frederick (the Bong Hits 4 Jesus case), the Court held that because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, school officials did not violate the First Amendment by confiscating a banner and suspending a student. Chief Justice Roberts authored the majority opinion, which was joined by Justices Scalia, Kennedy, Thomas, and Alito. Justice Thomas authored a concurring opinion. Justice Alito authored a concurring opinion which was joined by Justice Kennedy. Justice Breyer authored an opinion concurring in the judgment in part and dissenting in part. Justice Stevens authored a dissenting opinion which was joined by Justices Souter and Ginsburg.
In National Association of Home Builders v. Defenders of Wildlife, the Court concluded that a federal agency that is required by law to take a specific action is not required to follow a conflicting mandate imposed by the Endangered Species Act. The majority opinion was authored by Justice Alito and joined by Chief Justice Roberts and Justices Scalia, Kennedy and Thomas. Justice Stevens authored a dissenting opinion which was joined by Justices Souter, Ginsburg and Breyer. Justice Breyer also filed a separate dissenting opinion.
In FEC v. Wisconsin Right to Life, the Court issued a 93 page opinion concerning issue ads and the Bipartisan Campaign Reform Act of 2002. Chief Justice Roberts delivered the opinion of the Court with respects to Parts I and II, concluding that the Court had jurisdiction to decide these cases (a mootness argument was raised because they concerned the 2004 election). Chief Justice Roberts authored an opinion, which was joined by Justice Alito, in which he concluded that the BCRA is unconstitutional as applied to the ads at issue because they were not express advocacy for or against a specific candidate. Chief Justice Roberts and Justice Alito concluded that these cases did not present the occasion to revisit McConnell's holding that a corporation's express advocacy of a candidate or his opponent shortly before an election may be prohibited. Justice Scalia authored an opinion which was joined by Justices Kennedy and Thomas in which they concurred in the judgment but would also overrule portions on McConnell. Justice Souter filed a dissenting opinion which was joined by Justices Stevens, Ginsburg and Breyer.
The Court granted certiorari in four cases, which Scotusblog summarizes as follows:
"[T]he Supreme Court on Monday granted four cases for review next Term, including a significant test case on the use of references to the O.J. Simpson not-guilty verdict to help persuade an all-white jury to impose a death sentence on a black defendant. Other granted cases include a test of state power to regulate commercial shipments of tobacco and other products harmful to childrren and a case involving state's authority to allow damage claims against makers of medical devices approved by federal authorities. In the fourth granted case, the Court indicated it will sort out a conflict among lower courts on the deductibility of expenses for trusts and estates."
Scotusblog summarizes the capital case referencing OJ Simpson in this post.
The next and final opinion release day is Thursday, June 28.
June 24, 2007
Effective date of AB510's sentencing enhancements
I think one of the big unanswered questions of AB 510 is the following:
Do the amendments concerning sentencing enhancements apply to a case in which the offense occurred prior to July 1, 2007, if the sentencing hearing takes place after July 1, 2007?
Under AB 510, sentencing enhancements no longer automatically double the sentence, but instead allow the district court to select a term of years between 1 and 20 years to be served consecutively to the underlying sentence. The bill provides that it is effective July 1, 2007, but is silent as to whether this date applies to the date of the offense rather than the sentencing date.
Actually, there are four possibilities:
(1) The amendment could apply to all unexpired sentences -- which would require resentencing of all defendants who received an enhanced sentence. This seems highly unlikely.
(2) The amendment could apply to all sentences for which the judgment of conviction is not yet final -- meaning all cases in which the defendant has not yet been sentenced, all cases on direct appeal to the Nevada Supreme Court, and all cases for which the time period for filing a writ of certiorari has not yet expired. This would require resentencing for some defendants.
(3) The amendment could apply to all cases in which the sentencing hearing takes place on or after July 1, 2007.
(4) The amendment could apply to all cases in which the offense occurs on or after July 1, 2007.
Support for option 2 is found in In re Estrada, 408 P.2d 948 (Cal. 1965) (an amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date); Litsey v. District Court of Twenty-First Judicial Dist., 565 P.2d 1343 (10th Cir. 1977); and State v. Von Geldern, 638 P.2d 319 (Haw. 1981).
Support for option 3 is found in People v. Floyd, 72 P.3d 820 (Cal. 2003); People v. Grant, 377 N.E.2d 4 (Ill. 1978); State v. Stafford, 129 P.3d 927 (Alas. App. 2006); State v. Tapp, 490 P.2d 334 (Utah 1971); State v. Morris, 954 P.2d 681 (Ida. App. 1998); and Elkins v. State, 659 N.E.2d 563 (Ind. App. 1995).
Support for option 4 is found in State v. Pulliam, 920 So.2d 900 (La. App. 2005).
Nevada law on this subject is sparse. In Sparkman v. State, 95 Nev. 76, 590 P.2d 151 (1979), the Court found that a trial court erred in failing to apply the ameliorative penalty provision in effect at the time the defendant was sentenced, but in that case the Court noted that NRS 453.341 specifically addressed the retroactivity question at issue. In addressing the issue the Court noted both the general rule that the proper penalty is that in effect at the time of the commission of the offense, Tellis v. State, 84 Nev. 587, 445 P.2d 938 (1968), and the rule that laws imposing criminal sanctions require strict construction in favor of the citizen and against the government, United States v. Brown, 333 U.S. 18 (1947).
In Tellis, the Nevada Supreme Court found that the sentencing statute at the time of the offense was applicable based upon the language of NRS 193.130 which provides that a person must be sentenced to a term of imprisonment "within the limits prescribed by the applicable statute, unless the statute in force at the time of commission of the felony prescribed a different penalty." Unlike NRS 193.130, however, the enhancement penalties provided for in Chapter 193 do not contain this same "saving provision." See e.g. NRS 193.165 (deadly weapon enhancement).
Ultimately, the answer to this question is likely to fall on the Nevada Supreme Court's analysis of the legislative intent in enacting AB 510. The sentencing enhancements were added to the bill by the Senate very late in the session. Committee minutes are not yet posted for the Senate Judiciary Committee hearing on AB 510. It will be interesting to see if the Legislature specifically addressed the retroactivity question during the committee hearing. It does not appear that it was addressed during the floor session of the Assembly or Senate. I'm doubtful that the legislative history will provide much insight on this issue.
In the meantime, I think that a valid argument can be raised that defendants who committed offenses prior to July 1, 2007, but who have not yet been sentenced, or who do not have final judgments, are entitled to the benefit of AB 510. I expect that the State will disagree.
AB 510 - Big changes for Nevada sentences
AB 510 is a new law which makes major changes to sentencing in Nevada. The law is 36 pages and addresses a wide variety of issues. Please read it yourself and don't rely on my analysis. My guess is that there are several unanswered questions that will need to be addressed in the next few months. The following are the highlights of the bill:
* Sentencing enhancements will no longer automatically double the sentence for the underlying crime. Judges will have discretion to impose an enhancement between 1 to 20 years, but the enhancement cannot be greater than the maximum term for the underlying crime. Judges shall state on the record that they considered the following in determining the length of the enhancement: facts and circumstances of the crime; criminal history; impact of the crime on any victim; mitigating factors; and other relevant information. (Sections 10 to 18).
* The Parole Board may not consider the fact that a prisoner has appealed from his judgment. (Section 8.3)
* The Parole Board must issue written findings in some circumstances (Section 8.55)
* Good time credits are increased from 10 days per month to 20 days per month (Section 5)
* Educational credits are increased (Section 5)
* Credits are to be applied against the minimum term of imprisonment for offenders who have not been convicted of violent felonies, sexual offenses punishable as a felonies, DUI offenses, or A and B felonies. (Sections 5, 8.3)
* Good time credits are increased from 10 days per month to 20 days per month for parolees with less than a life term if the parolee is current on supervision fees and restitution payments. (Section 6)
* Good time credits of 20 days per month are allowed for offenders on probation. (Section 8.7)
* Credit is allowed for participation in reentry programs (Section 4)
* Credit for drug and alcohol abuse treatment programs is increased from 30 days to 60 days (Section 6.2)
* Credit for vocational education and training programs is increased from 30 days to 60 days (Section 6.4)
* Some standards for residential confinement are relaxed. (Sections 2 an 3)
* Some standardards for eligibility for minimum security prisons are relaxed. (Section 7)
* Some standards for eligibility for reentry court and correctional programs are relaxed. (Sections 7.5 and 8)
* Courts and the Parole Board may require offenders who violate the terms of their probation or parole to serve a sentence of confinement in a facility, for a term of up to 6 months, in association with a term of residential confinement. (Section 8.6, 8.8)
A summary of good time credits, probation credits, sentencing enhancements (including the deadly weapon enhancement) and other provisions are set forth at the jump.
Section 2: Residential Confinement Standards (section 1 was deleted by amendment)
NRS 209.392 is amended to provide that the Director of the Department of Corrections may, at the request of an offender who is eligible for residential confinement pursuant to the standards adopted by the Director, assign the offender to the custody of the Division of Parole and Probation to serve a term of residential confinement for the remander of his sentence if he has demonstrated a willingness and ability to establish a position of employment in the community or demonstrated a willingness and ability to enroll in a program for education or rehabilitation or demonstrated an ability to pay for the costs of confinement and restitution. The statute previously required the offender to have already established employment or have already enrolled in an education or rehabilitation program.
Section 2 also amends NRS 209.392(3) by changing the criteria for those eligible for residential confinement:
* The amendment deletes the provision that prohibited residential confinement for offenders who are not eligible for parole or release from prison within a reasonable period.
* The amendment changes the provision that prohibited residential confinement for an offender who "has ever been convicted of any crime involving the use or threatened use of force or violence against the victime or a sexual offense" to now prohibit residential confiement for an offender who "has been convicted of any crime that is punishable as a felony involving the use or threatened use of force or violence against the victim within the immediate preceding 3 years or a sexual offense that is punishable as a felony or a category A or B felony.
* The amendment elements the eligibility requirement that an offender make an effort in good faith to participate in or to complete any educational or vocational program or any program of treatment, as ordered by the Director.
Section 3: Residential Confinement
NRS 209.429 is amended to provide that the Director of the Department of Corrections shall assign an offender to the custody of the Division of Parole and Probation to serve a term of residential confinement, pursuant to NRS 213.380 for not longer than the remainder of the maximum term of his sentence if the offender has demonstrated a willingness and ability to establish a position of employment in the community or demonstrated a willingness and ability to enroll in a program for education or rehabilitation or demonstrated an ability to pay for the costs of confinement and restitution. The statute previously required the offender to have already established employment or have already enrolled in an education or rehabilitation program. The amendment also deletes the requirement that the offender successfully complete the initial period of treatment required under the program of treatment established pursuant to NRS 209.425 and the requirement that the Director believe that the offender will be able to comply with the terms and conditions of residential confinement and a program of treatment.
Section 4: Credits for participation in program for reentry of offenders
NRS 209.446(3) is amended to provide that the Director may allow not more than 10 days of credit each month for an offender who participates in a dilivent and responsible manner in a program for reentry of offenders and parolees into the community.
Section 5: Good time credits, education credits, and application of credits to the minimum and maximum terms
NRS 209.4465 is amended to provide than an offender who is sentence to prison for a crime committed on or after July 17, 1997, who has no serious infractions of the regularations of the Department, the terms and conditions of his confinement and the laws of the State, and who performs if a faithful, orderly and peaceable manner the duties assigned to him must be allowed a deduction of 20 days from his sentence for each month he serves. The statute previously provided for a deduction of 10 days.
The amendment next provides than an offender is entitled to 60 days credit for a GED, in comparison to 30 days under the previous law, 90 days for earning a high school diploma, in comparison to 60 days under the previous law; and 120 days for earning his first associate degree, in comparison to 90 days under the previous law.
The amendment next provides for credits for participation in a program for reentry of offenders and parolees into the community, as set forth above, and provides that an offender who earns credits pursuant to subsection 4 is eligible to earn 30 days credit each month, as opposed to 20 days credit under the former law.
A significant change to the application of credits is found in NRS 209.4465(8), which provides the following:
Credits earned pursuant to this section by an offender who has not been convicted of:
(a) Any crime that is punishable as a felony involving the use or threatened use of force or violence against the victim;
(b) A sexual offense that is punishable as a felony;
(c) A violation of NRS 484.379 (DUI) , 484.3795 (DUI w/ substantial bodily harm) or 484.37955 (vehicular homicide) that is punishable as a felony; or
(d) A category A or B felony,
apply to eligibility for parole and must be deducted from the minimum term imposed by the sentence until the offender
becomes eligible for parole and must be deducted from the maximum term imposed by the sentence.
As set forth below, section 21 of AB 510 provides that the amendment to NRS 209.4465(8), which reduces the minumum term for imprisonment for certain offenders, is retroactive to July 1, 2000 for offenders placed in the custody of the Department of Corrections before July 1, 2007 and who remain in such custody on July 1, 2007. Section 21 also provides that the amendatory provisions of section 5 must be applied retroactively to July 1, 2006, to reduce the maximum term of imprisonment of an offender who was placed on parole before July 1, 2007. Section 21 further provides that the amendatory provisions of section 5 must be applied in the manner set forth in NRS 209.4465 for all offenders in the custody of the Department of Corrections commencing on July 1, 2007, and for all offenders who are on parole commencing on July 1, 2007.
Section 6: Credits while on parole
The amendment provides for 20 days credit each month, in comparison to 10 days under the former law, for parolees with less than a life term if the parolee is current on supervision fees and restitution payments.
Section 6.2: Credits for alcohol or drug treatment programs
NRS 209.448 is amended to provide for 60 days credit, rather than 30 days under the old law, for completion of a program of treatment for the abuse of alcohol or drugs.
As set forth below, in Section 21, the amendatory provisions of section 6.2 apply only to credits earned by an offender on or after July 1, 2007.
Section 6.4: Vocational credits
NRS 209.449 is amended to provide for 60 days credit, rather than 30, from the maximum term of a sentence for the successful completion of a orgram of vocational education and training or other program approved by the Director.
As set forth below, in Section 21, the amendatory provisions of section 6.4 apply only to credits earned by an offender on or after July 1, 2007.
Section 7: Eligibility for Minimum Security Facility
NRS 209.481 is amended to change the eligibility criteria for assignment to a minimum security prison. The statute now prohibits assignment of an offender who has been convicted of a sexual offense to only those sexual offenses that are punishable as felonies. It also prohibits assignment of an offender who has has "within the immediate preceding year, been convicted of any crime involving the use or threatened use of force or violence against a victim that is punishable as a felony" in comparison to the former statute which prohibited assignment of an offender who had committed an act of serious violence during the previous year.
Section 7.5: Eligibility for Reentry Court
NRS 209.4886 is amended to change some of the criteria for eligibility in reentry court. Subsection 3(c) is amended to provide that an offender is not eligible if he has within the immediate preceding year been convicted of any crime involving the use or threatened use of force or violence against a victim that is punishable as a felony. The prior version used a 5 year period. The amendment also limits sexual felonies to those that are punishable as felonies and eliminates the criteria that the offender make a good faith effort to participate in or complete educational or vocational programs.
Section 8: Elgibility for Correctional Program
NRS 209.4888 is amended to change some of the criteria for eligibility in a correctional program. Subsection 3(c) is amended to provide that an offender is not eligible if he has within the immediate preceding year been convicted of any crime involving the use or threatened use of force or violence against a victim that is punishable as a felony. The prior version used a 5 year period. The amendment also limits sexual felonies to those that are punishable as felonies and eliminates the criteria that the offender make a good faith effort to participate in or complete educational or vocational programs.
Section 8.3: Parole Standards
Subsection 3 now provides that "In determining whether to grant parole to a prisoner, the Board shall not consider whether the prisoner has appealed the judgment of imprisonment for which the prisoner is being considered for parole."
Section 8.5: Application of Credits to Minimum Term
The former version of NRS 213.120 provided that credits earned to reduce a sentence under chapter 208 of NRS were to be applied only to the maximum term of imprisonment and could not be used to reduce the minimum term of imprisonment. The amended version now provides for credits against the minimum sentenced as provided for in NRS 209.4465 (as discussed above).
Section 8.55: Parole Board Proceedings
NRS 213.1215(3) provides that if the Parole Board declines parole because it finds that there is a reasonable probability that the prisoner will be a danger to public safety while on parole, the Board shall provide to the prisoner a written statement of its reasons for denying parole.
Section 8.6: Residential Confinement & Prison Time for Violation of Parole
NRS 213.152 is amended to provide that if a parolee violates a condition of parole and the Board elects to order him to a term of residential confinement in lieu of suspending his parole and returning him to confinement, the Board may require the parolee to be confined to a facility of the Department of Corrections approved by the Board for a period not to exceed 6 months.
Section 8.7: Credits For Good Behavior On Probation
NRS 176A.500 is amended to provide a new subsection:
"5. An offender who is sentenced to serve a period of probation for a felony who has no serious infraction of the
regulations of the Division, the terms and conditions of his probation or the laws of the State recorded against him, and who performs in a faithful, orderly and peaceable manner the duties assigned to him, must be allowed for the period of his probation a deduction of 20 days from that period for each month he serves."
As set forth below, in Section 21, the amendatory provisions of section 8.7 must be applied retroactively to reduce the period of probation of such an offender commencing on July 1, 2006.
Section 8.8 Residential Confinement & Prison Time for Violation of Probation
NRS 176A.660 is amended to provide that if a person on probation violates a condition of probation and the court elects to order him to a term of residential confinement in lieu of revoking his probation and executing the sentence, the court may require the parolee to be confined to a facility of the Department of Corrections approved by the Division of Parole and Probation for a period not to exceed 6 months.
Section 10: Enhancement for felony committed on school property, at a school sponsored activity or on a school bus (section 9 was deleted by amendment):
NRS 193.161 is amended to provide for an enhancement of 1 to 20 years for a felony committed on school property, at a school sponored activity, or on a school bus. In determining the length of the additional penalty, the court shall consider the following information:
(a) The facts and circumstances of the crime;
(b) The criminal history of the person;
(c) The impact of the crime on any victim;
(d) Any mitigating factors presented by the person; and
(e) Any other relevant information.
The court shall state on the record that it has considered the information described in paragraphs (a) to (e), in determining the length of the additional penalty. The enhancement prescribed by this section must not exceed the sentence imposed for the crime and runs consecutively with the sentence prescribed by statute for the crime. The former version of the statute provided for a term "equal to and in addition to the term of imprisonment prescribed by statute for the crime."
Section 11: Enhancement for felony committed by adult with assistance of child
NRS 193.162 is amended in the same manner described in Section 10 above.
Section 12: Enhancement for use of handgun containing metal-penetrating bullet in commission of crime
NRS 193.163 is amended in the same manner described in Section 10 above.
Section 13: Enhancement for use of deadly weapon or tear gas in commission of crime.
NRS 193.165 is amended in the same manner described in Section 10 above.
Section 14: Enhancement for felony committed in violation of order for protection or order to restrict conduct:
NRS 193.166 is amended in the same manner described in Section 10 above.
Section 15: Enhancement for certain crimes committed against person 60 years of age or older or against vulnerable person.
NRS 193.167 is amended in the same manner described in Section 10 above for certain designated felony offenses. If the designated offense is a misdemeanor or gross misdemeanor, the defendant shall be sentenced to a consecutive term equal to the term of imprisonment prescribed by statute for the offense.
Section 16: Enhancement for commission of crime because of certain actual or perceived characteristics of victim
NRS 193.1675 is amended in the same manner described in Section 10 above.
Section 17: Enhancement for felony committed to promite activities of criminal gang
NRS 193.168 is amended in the same manner described in Section 10 above.
Section 18: Enhancement for felony committed with the intent to commit, cause, aid, further or coneal act of terrorism
NRS 193.1685 is amended in the same manner described in Section 10 above.
Section 19: technical amendment
NRS 193.169 is amended to change certain subsection numbers.
Section 20: Amendment of AB 508
This section amends AB 508, which concerns a commission charges with studying the State's system of criminal justice and sentences.
Section 21: Effective dates for credits
1. For the purpose of calculating the credits earned by an offender pursuant to NRS 209.4465, the amendatory
provisions of section 5 of this act must be applied:
(a) Retroactively to July 1, 2000, to reduce the minimum term of imprisonment of an offender described in subsection 8 of NRS 209.4465 who was placed in the custody of the Department of Corrections before July 1, 2007, and who remains in such custody on July 1, 2007.
(b) Retroactively to July 1, 2006, to reduce the maximum term of imprisonment of an offender who was placed on parole before July 1, 2007.
(c) In the manner set forth in NRS 209.4465 for all offenders in the custody of the Department of Corrections commencing on July 1, 2007, and for all offenders who are on parole commencing
on July 1, 2007.
2. For the purpose of calculating credits earned by an offender pursuant to NRS 209.448 and 209.449, the amendatory provisions of sections 6.2 and 6.4 of this act apply only to credits earned by an offender on or after July 1, 2007.
3. For the purpose of calculating credits earned by an offender pursuant to NRS 176A.500, the amendatory provisions of section 8.7 of this act must be applied retroactively to reduce the period of probation of such an offender commencing on July 1, 2006.
Section 22: Effective Date
Sections 1 to 20 become effective on July 1, 2007.
Other news
Interesting reading on non-Nevada cases and issues include:
How to survive a too-wild night in Sin City. LATimes 6/21/07
Protecting e-mail, LATimes 6/23/07
N.Y. loses profit from inmate collect calls. LATimes 6/24/07
Judge Criticizes Wiretap Program. NYTimes 6/24/07
The Breakfast Table: A Supreme Court Conversation between Dahlia Lithwick and Walter Dellinger, Slate 6/22/07
Civil rights lawyer Yagman found guilty of tax evasion. LATimes 6/23/07
Batson and the "O.J. factor" by Lyle Denniston, Scotusblog 6/23/07
And there's a lot on last week's decision in Rita:
What About Non-FSG Sentences by Susan R. Klein, the Baker & Botts Professor in law at the University of Texas, Scotusblog 6/22/07
Rita: More for District Courts? by Carissa Byrne Hessick, & F. Andrew Hessick, Associate Professors at Arizona State University. Scotusblog 6/22/07
Rita and the state of the Sixth Amendment by Jeff Fisher of Standford Law School and amicus counsel for NACDL, Scotusblog 6/22/07
New (or renewed) ideas and arguments suggested by Rita by Doug Berman, Sentencing Law and Policy 6/24/07
Circuit splitting headaches after Rita by Doug Berman, Sentencing Law and Policy 6/23/07
High Court Sentencing Vote May Bode Ill for Libby by Nina Totenberg, NPR 6/22/07
June 23, 2007
More on Bogden firing
Conyers Slams Gonzales' Deputy Over Voter Caging. Greg Palast 6/22/07.
Conyers Grills Deputy Attorney General McNulty. Greg Palast 6/21/07
Senators Demand Justice Dept. Investigation Into Time Griffin, RNC 2004 Vote Caging Allegations. Greg Palast 6/18/07
Bush Pick for No. 3 at Justice Withdraws. AP 6/22/07 (via Huffington Post) (specific mention of Bogden is in the last paragraph)
White House contempt. The Hill 6/22/07
Mail Trail. The RNC e-mails represent one more White House demerit. Slate 6/21/07
Jane Ann Morrison: Former Assemblyman Brower may be among Nevada attorney nominees. LVRJ 6/23/07
Weekend news
Davidson's fee seemed very reasonable, developer testifies. LVRJ 6/23/07
Strip club fracas: Pacman booked at LV jail. LVRJ 6/23/07
Chaz Higgs Murder Trial: Expert explains puncture mark. LVRJ 6/23/07
Editorial: Judicial fundraising. LVRJ 6/23/07
Sex offenders move on, but families still wary. LVRJ 6/24/07
Death Penalty Updates
Capital Defense Weekly notes that there were four executions last week - 2 in Texas, 1 in Indiana and 1 in South Carolina. Also noted is a post by Cassy Stubbs on Huffington Post: The Death Penalty Deterrence Myth: No Solid Evidence That Killing Stops the Killing. CDW also notes a big victory in Montana based upon the prosecution's late filing of its notice of intent to seek death and a case from South Carolina in which the Court held that the defendant had not made a knowing and intelligent waiver of his right to appellate review.
Headlines from the Death Penalty Information Center include the following:
Pew Poll Shows Modest Decline in Death Penalty Support
Strong Criticism of Tennessee's Death Penalty System from Federal Appellate Judge
Texas Scores Poorly in Mental Health Services While Executing Many with Mental Illness
Books: "The Big Eddy Club" Explores Race and the Death Penalty
Rwanda Votes to Abolish the Death Penalty
New Mexico Trial Judge Finds State Death Penalty Unconstitutional
Supreme Court Decisions Allows Broader Exclusion of Juors, But May Further Isolate the Death Penalty
Executions Declining in China
Texas Court Grants Stay on Basis of Possible Innocence
Lawyer Biographical Data Form required for all attorneys
Effective September 1, 2007, RPC 14 mandates the following:
"Each lawyer or law firm shall have available in written form to be provided upon request of the State Bar or a client or prospective client a factual statement detailing the background, training and experience of each lawyer or law firm."
The following information must be included:
1. Full name and business address of the lawyer.
2. Date and jurisdiction of initial admission to practice.
3. Date and jurisdiction of each subsequent admission to practice.
4. Name of law school and year of graduation.
5. The areas of specialization in which the lawyer is entitled to hold himself or herself out as a specialist under the provisions of Rule 7.4.
6. Names and dates of any legal articles or treatises published by the lawyer, and the name of the publication in which they were published.
7. A good faith estimate of the number of jury trials tried to a verdict by the lawyer to the present date, identifying the court or courts.
8. A good faith estimate of the number of court (bench) trials tried to a judgment by the lawyer to the present date, identifying the court or courts.
9. A good faith estimate of the number of administrative hearings tried to a conclusion by the lawyer, identifying the administrative agency or agencies.
10. A good faith estimate of the number of appellate cases argued to a court of appeals or a supreme court, in which the lawyer was responsible for writing the brief or orally arguing the case, identifying the court or courts.
11. The professional activities of the lawyer consisting of teaching or lecturing.
12. The names of any volunteer or charitable organizations to which the lawyer belongs, which the lawyer desires to publish.
13. A description of bar activities such as elective or assigned committee positions in a recognized bar organization.
Additional details are set forth at the jump
Written solicitation short form
RPC 1.4(c)(3) provides A lawyer or law firm that advertises or promotes services by written communication not involving solicitation as prohibited by Rule 7.3 shall enclose with each such written communication the information described in items 1-5 above.
Record retention
A copy of all information provided pursuant to this Rule shall be retained by the lawyer or law firm for a period of 3 years after last regular use of the information.
Data Form required for all lawyers, even those who do not advertise.
Do not file with form with the State Bar unless requested to do so.
The Data Form was previously only required of advertising lawyers (former SCR 196.5), but is now required of all lawyers practicing in Nevada. A lawyer must be able to provide the Data Form within a reasonable period of time upon request of the State Bar, a client, or prospective client. RPC 1.4, RPC 1.18.
The Rules of Professional Conduct are rules of reason. RPC 1.0A(a). As such, the rules require that a lawyer make a good faith effort to provide the information required in a Data Form upon request to the extent possible (education, number of trials/arbitrations, etc). Whether a lawyer advertises, the type of law the lawyer practices, and the amount of information an individual lawyer chooses to provide in Data Forms will all likely factor into the reasonableness of the Data Form.
Discipline review will be based on two major points related to the Data Form: (1) a flat-out refusal to provide a Data Form, or, (2) knowingly communicating false or misleading content. For example, a lawyer’s good faith estimate of “60 trials litigated” when the real number is 50 is probably not a concern. If the real number is less than 10, discipline review is more likely.
More information is available from the State Bar.
State Bar provides details on new lawyer advertising rules
From the State Bar of Nevada:
Top Ten things you might not (but should) know about the new lawyer advertising rules.
1.Ads do NOT have to be pre-approved. You only have to file them with the Bar within 15 days after first dissemination.There is no fee. You do not wait for a response. In fact, "approval" is at your request only upon application to the Advertising Committees (there is a fee for this option).
2.The rules go into effect on September 1, 2007. Therefore, you have until September 17, 2007 to file any ads you intend to run after September 1.
3.There will be exceptions to the mandatory filing, which are currently tombstone ads, websites, and derivatives of ads filed after Sept. 1. The Board of Governor's Operating Rules will further define these terms.
4.Any of your competitors who may sit on the Advertising Review Committees cannot make you pull an ad. The Office of Bar Counsel still handles discipline. The new committees are there to help lawyers by providing optional, binding advance opinions. The Committees will also help the State Bar by reviewing the ads filed under the mandatory provision and make referrals and recommendations to Bar Counsel.
5.The only fees assessed are for the optional advance opinions. There will be reasonable administrative fees for advance opinions issued by the Advertising Committees. Favorable opinions are issued in writing and binding on discipline authorities. Unfavorable opinions are appealable and not binding on the lawyer or discipline authorities.
6.Please don't file just yet. The Operating Rules are still in the development process and the Committees need to be appointed.
7.You must now have a Lawyer Biographical Data Form even if you don't advertise. The Data Form was previously only required of advertising lawyers (former SCR 196.5), but is now required of all lawyers practicing in Nevada. A lawyer must be able to provide the Data Form within a reasonable period of time upon request of the State Bar, a client, or prospective client. RPC 1.4, RPC 1.18.
8. You can now advertise testimonials, endorsements, and jury verdicts. The main caveat is you must also include adequate disclaimers to overcome the inherently misleading nature of such statements.
9. You can now have accident scenes, be a cartoon, or otherwise have dramatic and suspenseful depictions. RPC 7.2 (d), (e), and (f) have been revoked.
10. If you are going to advertise a fee or range of fees, all the related conditional terms (if any) must be included within reason.
Judicial ethics opinion issued
The Standing Committee on Judicial Ethics and Election Practices has issued a new opinion.
Issue: Does a justice of the peace serving in the Air Force Reserve as a judge advocate general (JAG) violate judicial canons and the Nevada statute prohibiting the practice of law and may the judge be compensated as a reservist?
Answer: No and yes, respectively.
Jail phone calls
NACJ President Dan Silverstein reports that there was more discussion of recording of telephone calls placed by inmates of the Clark County Detenction Center. Jail personnel claim that there is a master list of phone numbers that the computer system flags not to record. Members of the criminal defense bar need to call Sgt. Virgil Swartwood at 671-5795 to be placed on the list. A confirmation letter should also be sent.
June 22, 2007
In the news
Pacman Jones will surrender to police. LVRJ 6/22/07
Prosecution theory challenged. LVRJ 6/22/07
Pathologist raises questions about Augustine's injection wound. AP 6/21/07
Bribe allegations rebutted. LVRJ 6/22/07
Judges defend plan to limit contributions. LVRJ 6/22/07
Nevada Supreme Court wants to limit some judges' fundraising. AP 6/21/07
Retired judge hopes to share abroad. RGJ 6/22/07
Conforte to appear on TV for museum opening. RGJ 6/22/07
June 21, 2007
Supreme Court rules on sentencing guidelines
In a 8-1 decision, the United States Supreme Court held in Rita v. United States that a federal sentence that is within the sentencing guidelines is presumed to be reasonable upon appellate review, but the presumption is not binding. Justice Souter dissented. Scotusblog provides additional analysis.
Scotusblog summarizes the Court's second decision of the day as follows: "[T]he Court clarified the standard for inferences of innocence that courts may consider in a private securities lawsuit to determine whether the sued individual or firm acted with intent to commit wrong. The 8-1 decision in Tellabs v. Makor Issues & Rights (06-484) said that, to qualify as strong, an inference of awareness of wrongdoing must be 'more than merely plausible or reasonable -- it must be cogent and at least as compelling as any opposing inference' of a lack of intent to defraud."
In the third and final ruling of the day, the Court held in Tennessee Secondary School Athletic Association v. Brentwood Academy that it does not violate the First Amendment for a state prep sports group to enforce a no-recruiting rule on prep athletes.
The next opinion release day is Monday.
In the news
Halverson counters lawsuit by ex-assistant with filing. LVRJ 6/21/07
Strip club melee: Pacman charged in LV. LVRJ 6/21/07
Ensign backs three candidates for position: LVRJ 6/21/07
Politicians, developers may testify at Davidson trial. LVRJ 6/21/07
Editorial: Criminals leaving Nevada: That's good news. Nevada Appeal 6/21/07
Davidson jury pool goes from 130 to 34 to 16. LVRJ 6/21/07
Prosecution moves forward in Higgs trial. RGJ 6/21/07
Testimony from medical workers dominates day 3. RGJ 6/21/07
Carson prison escapee nabbed in Elko. Elko Daily RGJ 6/21/07
June 20, 2007
In the news
U.S. judge rules Davidson will face additional charge of conspiracy. LVRJ 6/20/07
Augustine death: Defense submits new theory. LVRJ 6/20/07
Nurse says Higgs was hateful. RGJ 6/20/07
Trial begins in 1974 murder case. RGJ 6/20/07
Ensign soon to suggest replacement for Bogden. LVSun 6/20/07
Selection of anonymous jury begins in mob trial. LVRJ 6/20/07
Meth workshop June 29 in Winnemucca. Elko Daily 6/20/07
Ex-cop accused of embezzlement. RGJ 6/20/07
June 19, 2007
In the news
U.S. Attorney's Office to add staff in Nevada, Ensign says. LVRJ 6/19/07
Lawyers dispute statute of limitations in corruption case. LVRJ 6/19/07
Panel to recommend against super-sealing in most case. LVRJ 6/19/07
Higgs murder trial opens. LVRJ 6/19/07
Higgs jury selection starts amid debate over evidence. RGJ 6/19/07
Editorial: Justice conducted in secret. LVRJ 6/19/07
Editorial: Illegal Search. LVRJ 6/19/07
Sferrazza among finalists to replace retiring judge. RGJ 6/19/07
Lyon and Churchill react to veto. Nevada Appeal 6/19/07
June 18, 2007
US Supreme Court finds passenger has standing
The United States Supreme Court ruled unanimously in Brendlin v. California that a passenger in a car stopped on the road by a police officer has a right to challenge the legality of the stop, under the Fourth Amendment. The opinion was authored by Justice Souter.
I'm posting while on the freeway on route to San Diego (as a passenger, not the driver) so I can't provide a full summary or links. Scotusblog will have a link to the opinion and analysis of the opinion.
The Court also issued an anti-trust decision. The next opinion release day is Thursday.
In the news
Corruption trial might key on taped phone call. LVRJ 6/19/07
Higgs murder trial reads like a spy thriller. AP 6/19/07
June 17, 2007
Weekend news
Former State Controller: Trial starts Monday in Augustine death. LVRJ 6/18/07
Higgs lawyer says he confident. RGJ 6/18/07
Judge's secrecy in wrongful death action challenged. LVRJ 6/18/07
Letters to the editor: Here comes the judge. LVRJ 6/18/07
2007 Legislature: Gibbons signs final bills. LVRJ 6/17/07
Conservation camp inmate walks away. RGJ 6/18/07
Gibbons vetoes detention center bill. Nevada Appeal 6/18/07
State OK's $267 million for prisons, universities. Nevada Appeal 6/17/07
Nevada Legislature initiates major criminal justice reforms. Nevada Appeal 6/16/07
June 15, 2007
He signed you Bill! Now you're a law! Part IV
Part III (with links to Parts I and II) is available here.
AB 193 - Makes various changes concerning pleas, defenses and verdicts in criminal actions. Effective 10/1/07
SB 575 - Increases salaries of certain state employees. Effective 1/1/08
AB 246 - Makes various changes concerning district judges. Effective 10/1/07, 7/1/08 and 1/5/09
AB 625 - Makes certain changes concerning court programs. Effective 6/13/07 and 7/1/08
SB 248 - Revises provisions concerning the salaries of justices of the Supreme Court and district judges in Nevada. Effective 6/13/07 and 7/1/08
SB 303 - Amends the Chart of the City of Las Vegas concerning the qualifications of municipal court judges prospectively contingent upon voter approval. Effective 10/1/07 and 1/1/09 (contingent on affirmative vote)
SB 570 - Makes an appropriation to the Office of the Director of the Department of Health and Human Services to find a working group to study the methamphetamine problem in Nevada. Effective 6/13/07
SB 380 - Makes various changes concerning defendant who are found to be incompetent. Effective 7/1/07 and 10/1/07
SB 329 - Prohibits a person from allowing a cat or dog to remain unattended in a motor vehicle under certain circumstances. Effective 10/1/07
SB 556 - Makes various changes concerning the judicial system. Effective 10/1/07, 7/1/08, 1/1/09 and 1/3/11
SB 43 - Revises provisions relating to certain traffic offenses. Effective 10/1/07
AB 14 - Makes various changes to provisions concerning graffiti and other damages to property. Effective 10/1/07
AB 579 - Makes certain changes to provisions relating to sex offenders and certain offenders convicted of a crime against a child. Effective 7/1/08
AB 508 - Makes various changes to provisions concerning the Advisory Commission on Sentencing. Effective 7/1/07
AB 148 - Makes various changes relating to methamphetamine and other controlled substances. Effective 8/1/07
AB 510 - Makes various changes pertaining to offenders. Effective 7/1/07
SB 471 - Makes various changes to provisions related to sex offenders, offenders convicted of a crime against a child and other criminal offender. Effective 6/14/07, 7/1/07 and 10/1/07
In the news
Supreme Court clarifies internet predator law. LVRJ6/15/07
Gibbons signs law: legal chokehold on meth epidemic. LVRJ 6/15/07
Reno murder case, suspect told to pay. LVRJ 6/15/07
Mack judge OKs divorce settlement. RGJ 6/15/07
Offer to Bogden covered 17 different cities in U.S. LVRJ 6/15/07
Employee feeling guilty repays state for wasting time. Nevada Appeal 6/15/07
Happy 792nd birthday to habeas corpus
or at least to what's left of habeas corpus. The Magna Carta, with its promise of the Great Writ of Habeas Corpus, was signed on June 15, 1215.
Nevada District Judges 2007 Annual Seminar Photo
mmm - that's half of the photo. I'll figure out how to post pictures another day - in the meantime if you would like to see the whole photo, click on the above link.
June 14, 2007
Nevada Supreme Court issues 2 opinions
In Johnson v. State, the Nevada Supreme Court holds that a defendant may be convicted of attempting to lure a child pursuant to NRS 201.560 when the "child" is actually an undercover law enforcement officer posing on the internet as a child. The Court distinguished State v. Colosimo based upon the fact that Johnson involved an attempt rather than a complete offense. The opinion was authored by Justice Hardesty and joined by Justices Parraguirre and Saitta. The complete opinion is available through the link above or after the jump.
The other opinion issued today, Schmidt v. Washoe County, is a civil case in which the Court affirmed the dismissal of complaints in open meeting law actions.
Cite as: Johnson v. State
123 Nev. Adv. Op. No. 17
June 14, 2007
IN THE SUPREME COURT OF THE STATE OF NEVADA
No. 46794
JEFFREY LEE JOHNSON, AKA JEFFEREY L. JOHNSON,
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
Appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Affirmed.
Cristina A. Hinds, Las Vegas, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
BEFORE PARRAGUIRRE, HARDESTY and SAITTA, JJ.
OPINION
By the Court, HARDESTY, J.:
In this opinion, we consider whether a defendant may be convicted of attempting to lure a child under NRS 201.560 when the "child" is actually an undercover law enforcement officer posing on the Internet as a child. We conclude that such a conviction is proper.
FACTS
Appellant Jeffrey Lee Johnson corresponded through the Internet with several undercover law enforcement officers who represented themselves to Johnson as 14-year-old girls. Due to the content of those conversations, Johnson was charged with violating the attempt provision of NRS 201.560. He pleaded guilty to one count of violating the statute. He did not file a direct appeal.
In his postconviction petition for a writ of habeas corpus, Johnson claimed his counsel was ineffective for failing to argue at any stage in the proceedings that, because Johnson did not communicate with any actual children, it was impossible for him to have violated the attempt provision of NRS 201.560. He also claimed his counsel was ineffective for allowing him to plead guilty under these circumstances.
The district court denied Johnson's petition, ruling that a violation of the attempt provision of NRS 201.560 does not require an actual child victim. This appeal followed.
DISCUSSION
The attempt provision of NRS 201.560 does not require an actual child victim
NRS 201.560 provides in relevant part:
1. . . . [A] person shall not knowingly contact or communicate with or attempt to contact or communicate with a child who is less than 16 years of age and who is at least 5 years younger than the person with the intent to persuade, lure or transport the child away from his home or from any location known to his parent or guardian or other person legally responsible for the child to a place other than where the child is located, for any purpose:
(a) Without the express consent of the parent or guardian or other person legally responsible for the child; and
(b) With the intent to avoid the consent of the parent or guardian or other person legally responsible for the child.
NRS 201.560(4)(a) provides that a violation or attempted violation of the statute is a category B felony when the defendant used a computer and intended to engage in sexual conduct with the child.
In State v. Colosimo, we held that a conviction under NRS 201.560 for unlawful contact with a child required a victim who was actually a child and would not lie where, unbeknownst to the defendant, the "child" was an undercover law enforcement officer.[1] More specifically, we held that the language of NRS 201.560 clearly and unambiguously required that "in order to commit the offense described, a defendant's intended victim must be 'less than 16 years of age' and that the victim must have actual parents or guardians whose express consent was absent or avoided."[2] Because Colosimo was charged only with a completed violation of the statute, not an attempted violation, we specifically left open the question presented in the instant case of whether an actual child victim was required to support a conviction for attempting to unlawfully contact a child.[3] We now conclude that a conviction for attempting to unlawfully contact a child will lie where the defendant believed the person with whom he was corresponding was a child, even if the purported child was not an actual child.
In an attempt crime such as that at issue here, the defendant's intent is key. NRS 193.330(1) defines attempt as "[a]n act done with the intent to commit a crime, and tending but failing to accomplish it." We reaffirmed in Sharma v. State that "'[a]n attempt crime is a specific intent crime; thus, the act constituting [the] attempt must be done with the intent to commit that crime.'"[4] When he entered his guilty plea, Johnson admitted that he used a computer in an attempt to contact children and suggest they meet for sexual conduct. This was sufficient to establish that Johnson intended to violate NRS 201.560.
We have previously affirmed attempt convictions where the defendant intended to complete the crime but was unable to do so due to facts unknown to him. For example, in Darnell v. State,[5] we affirmed a conviction of attempted possession of stolen property where the defendant mistakenly believed the property was stolen. This court held that
even though the actual commission of the substantive crime is impossible because of circumstances unknown to the defendant, he is guilty of an attempt if he has the specific intent to commit the substantive offense, and under the circumstances, as he reasonably sees them, he does the acts necessary to consummate what would be the attempted crime.[6]
Similarly, in Bell v. State,[7] we affirmed a conviction for attempted sexual assault when, among other facts, the defendant offered to pay an undercover officer to procure a minor for the purposes of sexual contact, selected the child from a group of photographs the officer showed him, and drove toward the established meeting place. The court affirmed the conviction even though there was no actual minor victim at risk: "Applying Darnell to the instant case, the fact that no child was available does not, in itself, bar appellant's conviction for attempted sexual assault. Rather, appellant stipulated that he intended to commit sexual assault upon the five or six-year-old girl whose photograph he selected."[8]
In considering United States Code title 18, section 2422(b), which contains an attempt provision similar to NRS 201.560, the Ninth Circuit Court of Appeals concluded that no minor victim was required to sustain a conviction for violating the attempt provision of the statute as long as the defendant believed the person with whom he was corresponding was a minor.[9] Rather,
[t]he guilt arises from the defendant's knowledge of what he intends to do. In this case, knowledge is subjective—it is what is in the mind of the defendant. Thus, a jury could reasonably infer that Meek knowingly sought sexual activity, and knowingly sought it with a minor. That he was mistaken in his knowledge is irrelevant.[10]
We conclude that a conviction for attempting to lure a child pursuant to NRS 201.560 is proper when the State proves or the defendant admits that he attempted to contact a person whom he believed was a child. Johnson pleaded guilty to attempting to contact children for the purpose of sexual conduct. His conviction was proper even though there was no actual child at risk, only an adult posing as a child. Johnson thus had no availing challenge to the charges based on the lack of an actual child victim. We therefore conclude the district court did not err in rejecting Johnson's claim that his counsel was ineffective, because Johnson failed to demonstrate that his counsel's performance was deficient or that he suffered prejudice.[11]
Johnson was properly advised regarding the sentence of lifetime supervision
Johnson also claimed that his guilty plea was unknowingly and involuntarily entered because he was not advised of the specific consequences of lifetime supervision.[12] A guilty plea is presumptively valid, and Johnson carries the burden of establishing that his plea was not entered knowingly and intelligently.[13] This court will not reverse a district court's determination concerning the validity of a plea absent a clear abuse of discretion.[14] We conclude the district court did not abuse its discretion in rejecting this claim. A defendant need not be informed of the specific conditions of lifetime supervision at entry of the plea because these conditions are not determined until after a hearing conducted just prior to the expiration of the defendant's term of imprisonment, parole, or probation.[15]
CONCLUSION
A violation of the attempt provision of NRS 201.560 does not require an actual child victim. Conviction for violation of the attempt provision is proper as long as the defendant intended to communicate with a child. The district court did not err in rejecting Johnson's claims that his counsel was ineffective for failing to argue otherwise and for allowing him to plead guilty. Johnson was also properly advised regarding the sentence of lifetime supervision, and the district court did not abuse its discretion in ruling that his guilty plea was entered knowingly and voluntarily.[16]
Accordingly, we affirm the order of the district court denying Johnson's petition.
PARRAGUIRRE and SAITTA, JJ., concur.
**********FOOTNOTES**********
[1] 122 Nev. ___, ___, 142 P.3d 352, 358-59 (2006).
[2] Id. at ___, 142 P.3d at 359.
[3] Id. at ___ n.39, 142 P.3d at 359 n.39.
[4] 118 Nev. 648, 653, 56 P.3d 868, 871 (2002) (quoting Tanksley v. State, 113 Nev. 844, 849, 944 P.2d 240, 243 (1997)).
[5] 92 Nev. 680, 558 P.2d 624 (1976).
[6] Id. at 681-82, 558 P.2d at 625 (footnote and citation omitted).
[7] 105 Nev. 352, 353, 775 P.2d 1273, 1274 (1989).
[8] Id. at 353-54, 775 P.2d at 1274.
[9] U.S. v. Meek, 366 F.3d 705, 718-19 (9th Cir. 2004).
[10] Id. at 718.
[11] See Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (holding that a claim of ineffective assistance of counsel requires a petitioner to demonstrate that his counsel's performance was deficient and resulted in prejudice); Hill v. Lockhart, 474 U.S. 52, 59 (1985) (holding that, where a petitioner's conviction was the result of a guilty plea, a showing of prejudice requires petitioner to demonstrate that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial); Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996).
[12] Johnson signed a guilty plea agreement that advised him he would be sentenced to lifetime supervision. During the plea colloquy, the district court also advised Johnson he would be sentenced to lifetime supervision, which Johnson acknowledged he understood.
[13] Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986); see also Hubbard v. State, 110 Nev. 671, 877 P.2d 519 (1994).
[14] Hubbard, 110 Nev. at 675, 877 P.2d at 521.
[15] See NRS 213.1243(1); NAC 213.290; see also Palmer v. State, 118 Nev. 823, 827, 59 P.3d 1192, 1194-95 (2002).
[16] We need not address Johnson's claim that Colosimo should be applied to him, as the holding of that case would not entitle him to relief. The defendant in Colosimo was charged with a completed, not attempted, violation of the statute. 122 Nev. at ___ n.39, 142 P.3d at 359 n.39. Johnson, in contrast, was charged with and pleaded guilty to attempting to violate the statute.
In the news
Solutions sought for Carson's gang problems. Nevada Appeal 6/14/07
Files seized at CCSN campuses. LVRJ 6/14/07
Raid sweeps through CCSN offices. LVSun 6/14/07
Sheriff to talk the talk with Gibbons. LVSun 6/14/07
Judge is sect leader's trial reviewing Nevada law. LVRJ 6/14/07
Courthouse security funding still has a chance. Ely News 6/13/07
Sparks releases report on city attorney. Nevada Appeal 6/13/07
Gibbons signs 155 bills into law; about 50 left for his OK or veto. LVRJ 6/14/07
*** The Legislature has not updated its website with a list of bills signed after June 5, 2007. A list of bills concerning criminal law, law practice and the courts will be provided after the website is updated (or after I return from vacation at the end of next week, whichever is later).
Nevada Court Staff 2007 Conference
The 2007 Court Staff Conference will be held October 2-5 in Mesquite. "Topics include new clerk orientation, color code personality assessment, public speaking, supervisory basics, diversity, DMV, MAS, court records and roundtable discussions by jurisdiction on key issues, just to name a few." Additional details are available here.
US Supreme Court issues 3 decisions
The United States Supreme Court issued three opinions today:
India Mission v. New York City - foreign governments are not immune to being sued to force them to pay local property taxes on residences for their diplomats at the United Nations. 7-2 decision, authored by Justice Thomas.
Davenport v. Washington Education Association The First Amendment does not prohibit a state to bar a labor union representing government employees from using non-union workers' due for political causes if those workers have not explicitly consented. The result was unanimous, the primary opinion was authored by Justice Scalia with 3 partially concurring votes.
Bowles v. Russell - The Court holds that a petitioner's untimely notice of appeal, which was filed in reliance upon an erroneous district court, did not vest jurisdiction in a federal appellate court. More specifically, the defendant failed to file a timely notice of appeal from the federal district court's order denying his habeas corpus petition. The petitioner moved to reopen the filing period under FRAP 4(a)(6), which allows a district court to grant a 14-day extension under certain conditions. The district court granted the motion, but mistakenly gave him 17 days to file the notice of appeal. He filed the notice of appeal within the 17 day period, but after the 14 day period provided for by NRA 4. The Court held, in 5-4 decision authored by Justice Thomas, that the taking of an appeal in a civil case (habeas is civil in this context) within the time prescribed by statute is "mandatory and jurisdictional" and that because the appeal was not filed within the jurisdictional time limit, it must be dismissed. The Court also found that the "unique circumstances" doctrine did not apply as the Court had no authority to create equitable exceptions to jurisdictional requirements.
The next opinion release day is Monday, June 18.
Many thanks to Scotusblog for links to the opinions and the early summaries.
June 13, 2007
Judicial selection commission makes selections
The Commission on Judicial Selection has selected three nominees to replace former district court judge Joseph Bonaventure. The three finalists are:
Nancy Allf
Elissa Cadish
Kathleen Paustian
The RJ covers the story: Judge finalists women.
The Supreme Court's press release is available here.
In the news
Kickback case could ensnare well-known doctors, lawyers, judges. LVSun 6/13/07
NYTC youth sentenced to 25-year term. Elko Daily 6/12/07
Group helps former inmates transition. Nevada Appeal 6/13/07
Police again taking 'Pacman' Jones case to Las Vegas prosecutors. AP 6/12/07
Reno lawyer pleads not guilt to fraud. RGJ 6/13/07
CBS's 48 Hours aired an updated version of Caught In the Crossfire last night, which covers/sensationalizes (depending on your point of view) the Darren Mack case in Reno..
From elsewhere:
Newspaper sues judges over lost libel case. Chicago Tribune 6/13/07 (via How Appealing).
Georgia will allow lethal injection. Atlanda Journal-Constitution 6/13/07 (via How Appealing)
Officials rebuked for disclosing Rove's connection to firing of U.S. attorney. McClatchy. 6/12/07
Crisis of Confidence. Dahlia Lithwick, Slate 6/12/07
Texas court grants stay on basis of possible innocence. DPIC
Supreme Court to issue 21 opinions in next 2.5 weeks
The United States Supreme Court should issue 21 opinions by the end of the month. Criminal cases to be decided include the following:
Rita v. US - federal sentencing guidelines
Bowles v. Russell - federal appellate procedure
Panetti v. Quarterman - death penalty, execution of an inmate who has a factual awareness of the reason for his execution, but who because of severe mental illness has a delusional belief as to why the state is executing him.
Brendlin v. California - whether a passenger in a vehicle subject to a traffic stop is "detained" for 4th Amendment purposes, thus allowing the passenger standing to contest the legality of the traffic stop.
Opinion release dates are June 14, June 18 and June 25. More dates may be added.
June 12, 2007
In the news
Judge in New York tosses case against LV limo driver. AP 6/12/07
Court hears challenge to park codes. LVRJ 6/12/07
R-Jeneration: Crossing class lines, legal lessons. LVRJ 6/12/07
And from elsewhere (via How Appealing):
Nifong's misconduct trial starts today. The News & Observer 6/12/07
Accused Al Quada operative can't be jailed indefinitely, appeals court rules. LA Times 6/12/07
State argues: No freedom; Judge says Genarlow Wilson has served enough time for consensual teen sex offense, but attorney general fights ruling. Altanta Journal-Constitution 6/12/07
Court to weigh disparities in cocaine laws. NYTimes 6/12/07
IQ debate unsettled in death penalty cases. LA Times 6/11/07
NACJ Annual Meeting
Reminder: NACJ's annual meeting and award dinner is on Wednesday, June 13th at the Las Vegas Country Club. Phil Kohn will be honored as defender of the year.
Pretty quiet in Halverson v. Hardcastle
On June 7, 2007, the Nevada Supreme Court granted Judge Hardcastle's motion for immediate redaction and substitution of exhibits. Pages 10 and 39 have been replaced.
June 11, 2007
In the news
Violence reverberates through lives. RGJ 6/10/07
Access changed immediately. RGJ 6/10/07
Washoe DA key in Mack surrender. RGJ 6/10/07
Timeline of the Mack case. RGJ 6/10/07
Judge: My family has been devastated. RGJ 6/10/07
Defense: No evidence in murder case: DA may charge West Wendover fireman in 2006 death of wife. Elko Daily 6/9/07
Future looking good for former gang members. LVRJ 6/10/07
Last minute motions filed in Augustine death. LVRJ 6/10/07
Corruption probe: Suspect's plea deal unsealed. LVRJ 6/9/07
Retired cop has watched job evolve. RGJ 6/11/07
Judge: Sparks City Council must release report on city attorney. RGJ 6/9/07
US Supreme Court issues 5 unanimous rulings
Additional details on the civil cases are available at scotusblog.
Fry v. Pliler- Justice Scalia authored the opinion. The Court concluded that a federal habeas court must assess the prejudicial impact of constitutional error in a state court court criminal trial under the "substantial and injurious effect" standard set forth in Brecht v. Abrahamson 507 U.S. 619 (1993), even if the state appellate court failed to recognize the error and did not review it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U.S. 18 (1967). Justice Stevens issued an opinion concurring in part and dissenting in part, which was joined by Justice Souter and Justice Ginsburg, and Justice Breyer in part. Those justices would have reversed the 9th Circuit's decision applying the Brecht standard to the constitutional error found by the federal district court in its habeas review.
Watson v. Philip Morris- a lawsuit against a private company cannot be shifted from state court to federal court simply because the company was acting under federal agency regulations.
Long Island Care at Home v. Coke - home health care workers who are employed by outside agencies are not entitled to minimum wages and overtime pay under federal law.
U.S. v. Atlantic Research Corp. - a federal superfund law allows a company that has not been sued over a hazardous waste dump to sue another party, including federal agencies, to recover some of the cleanup costs.
Beck v. PACE International Union - a company that sponsors its own pension plan for workers does not have the duty to consider merging it with another plan as a method of ending the plan while continuing benefits.
The Court issued certiorari in three cases:
Kimbrough v. U.S. - it appears that this case presents the issue of whether it is fair to punish crack cocaine crime far more severely (100 to 1) than those involving cocaine powder under the federal sentencing guidelines.
Gall v. U.S. - It appears that this may be the replacement case for Claiborne (which was dismissed after the defendant was killed). The 8th Circuit concluded that a district court was unreasonable in granting probation to a defendant who was a middleman in a onspiracy which distributed 10,000 tablets of ecstasy. The Circuit found that the extraordinary downward variance from the sentencing guidelines range of 30 to 37 months was not supported by extraordinary circumstances. The lower court citation is 446 F.3d 884 (8th Cir. 2006).
Sprint/United Management Co. v. Mendelsohn - it appears that this case involves the issue of whether federal courts must allow testimony in a workplace discrimination trial by other workers, who are not parties to the case, to testify that they were also victims of job bias .
June 08, 2007
In the news
Judge releases Boggs without bail. LVRJ 6/8/07
It's a slow news day in Nevada, so here's a few more from elsewhere:
CIA secret prison in Europe disputed. AP 6/8/07
Leave the gun, Take the Cannoli. Slate 6/4/07
Line in the Sand: Have the Guantanamo Judges Soured on the President's War Tribunals. Slate 6/5/07
Democrats may subpoena NSA documents. NY Times 6/8/07
Prisoners to receive credits for volunteering to sleep in gym
A new memorandum from the Department of Corrections reveals that "effective June 1, 2007, any inmate who volunteers to be housed in a designated emergency housing area not normally suited to house an inmate such as a gym, [or] an activity room, wwill be eligible to receive 15 days of meritorious credits per month." A maximum of 90 days per inmate will be awarded and the inmate must be housed in the area for the entire month as no partial credit will be awarded.
No more typewriters at the prisons
I've received word from several clients, who are housed at different prisons, that the Nevada Department of Corrections has announced that typewriters will no longer be permitted at the prisons. Apparently some kind of rod was used as a shank so all typewriters will now be banned. Best of luck to the courts, prosecutors and others who will now be forced to read handwritten proper person pleadings.
More on proposed changes to SCOTUS rules
Scotusblog provides part III of its discussion on reactions to proposed revisions to the US Supreme Court rules. It also provides a copy of the comments provided by NACDL (National Association of Criminal Defense Lawyers), including its concern that the proposed rule would require use of "New Century Schoolbook" as the font in all printed documents, as this is a licensed font that is not included with standard word processing programs and much be purchased for about $100.
June 07, 2007
Nevada Supreme Court issues 2 opinions
McGrath v. State, Dep't of Pub. Safety - "In this appeal, we consider whether a workers' compensation claimant who alleges that she has suffered extreme and unusual stress on the job is required to pinpoint a discrete, identifiable event giving rise to the stress. Because the plain, unambiguous language of NRS 616C.180 indicates that a workers' compensation claimant must establish a causal relationship between her mental injuries and a discrete, identifiable, traumatic event and because the claimant here has not done so, we affirm the district court's order denying judicial review of the appeals officer's decision denying compensation."
Edwards v. Ghandour - These proper person appeals present us with an opportunity to clarify two issues: (1) that our decision in Rickard v. Montgomery Ward & Co., holding that a defendant's bankruptcy operates to toll NRCP 41(e)'s five-year period for bringing an action to trial, applies only to the particular defendant or defendants who have filed for bankruptcy protection, not to defendants who are not bankruptcy debtors; and (2) that an appeal from the district court's final judgment does not affect that judgment's finality for purposes of claim preclusion.
Death penalty updates
From the Associated Press:
4 Justices Often Side With the Condemned. 6/6/07
From the LA Times:
Death to child rapists? 6/5/07. the editorial is discussed at Sentencing Law and Policy.
Headlines from Death Penalty Information Center:
Jury Strikes and Racial Bias
New Voices: Florida League of Women Voters Calls for Halt to Executions
Lethal Injection Developments Spur Further Controversy in California and Missouri
Texas Medical Examiner No Longer Stands by Testimony that sent Woman to Death Row
New Voices: Former FBI Chief Expresses Concerns about Innocence and the Death Penalty
New Resources: Scientific American Examines "The Mysteries of Anesthesia"
Two New Federal Death Sentence in Non-Death Penalty State
Without Sufficient Funds, States Are Falling to Provide Adequate Representation
Florida Supreme Court Reduces Death Sentence Because of Mental Illness
Texas High Court Dismisses Woman's Death Sentence As Unsupported by the Evidence.
Capital Defense Weekly discusses yesterday's execution in Texas, challenges to lethal injection, cases of possible innocence, and a grant of habeas in New Jersey based upon juror misconduct issues.
In the news
Judges win again and again. LVSun 6/7/07
Budget juggling gives state's courts much of their wish list. LVSun 6/7/07
Boggs returns from trip abroad to face charges. LVRJ 6/7/07
Erin Neff: the power of video. LVRJ 6/7/07
Lawmakers axe funding WP (White Pine) judicial complex. Ely Times 6/7/07
Judge chides DA's office as being 'lackadaisical.' Ely Ties 6/7/07
Information request: list of bills signed by governor
The Legislature has not yet updated its website with the list of bills signed by the governor in the last few days of the sesssion. If anyone is aware of another reliable source with this information, please contact me. Thanks.
June 06, 2007
In the news
Authorities giving Boggs time to report. LVRJ 6/6/07
More trouble on horizon for Boggs. LVSun 6/6/07
Prison savings could go to court projects. RGJ 6/6/07
Gammick blasts Mack rulings. RGJ 6/6/07
Update:
2007 Legilslature: Special delivery. LVRJ 6/6/07
Hastings captures seat on LV court. LVRJ 6/6/07
Ex-prosecutor accused of helping murderer defraud grandmother. LVRJ 6/6/07
Inmates don caps and gowns. LVRJ 6/6/07
Uttecht analysis
A bunch has been written in the last few days about the Supreme Court's 5-4 decision on Monday in Uttecht v. Brown:
Analysis: Barring jurors in death penalty cases. Lyle Denniston, Scotusblog 6/4/07
Ruling helps prosecutors in death penalty cases. NYTimes 6/5/07
Ruling affirms judges' authority: High Court backs exclusion of jurors in capital case. Washington Post 6/5/07
Supreme Court reinstates death sentence. USA Today 6/5/07
Supreme Court, in 5-4 vote, restores death sentence in Washington murder case. LATimes 6/5/07
Follow-up on Brown. Capital Defense Weekly 6/4/07
Nevada Supreme Court schedules public hearing on Code of Judicial Conduct
The Nevada Supreme Court will hold a public hearing on June 21, 2007 regarding proposed amendment to the Code of Judicial Conduct concerning judicial election practices. The proposed amendments are available here.
Also on that date, the Court will hold a hearing to reivew the operation of the Judicial Council of the state of Nevada. A list of the issues to be considered is available here.
June 05, 2007
Hastings elected as municipal court judge
Martin Hastings has been elected to the City of Las Vegas Municipal Court. Election results are available here.
Prison visiting room review: Ely
what: Ely State Prison
where: Ely
overall: B+
food: B+
The vending machines were well stocked, two microwaves were available (although one cooked a little too fast and the other cooked a little too slow), and condiments were available. Client was pleased with his 3 bags of chicken wings and chicken sandwich. We were pleased with our Diet Dr. Pepper and bottled water.
atmosphere: B
The visiting room is dated, artwork was not cheery and the game closet was not well stocked (for the record, neither my associate nor I play games during client visits but we do think it's nice to have them available for kids who are visiting relatives). The attorney visiting rooms were of suitable size and contained no dangerous chemicals (unlike some other facilities, to be discussed at a later date). The fact that there is more than one attorney room is a definite bonus. The visiting room was clean and orderly. Restrooms in both the gatehouse and visiting room were clean and contained necessary items.
service: A-
Pleasant but professional staff. Very efficient in promptly bringing client to the visiting room. They would have received an A, but I was subject to a pat down search which is usually just given to non-attorney visitors.
pluses: Ample parking was available, sign-in was orderly and prompt, and the weather was nice. We stayed at a nice B&B (Steptoe Inn), had great barbecue for dinner (at the place next door to the Steptoe Inn), great drinks at a fantastic martini bar (Mr. G's - the new Italian place next door is owned by the same folks and is also very good), and then saw Pirates of the Caribbean 3 and a fantastic old movie theater (a drink and popcorn for only $3.50 - woo hoo) -- all of which makes the long trip to Ely tolerable.
minuses: No matter how hard I try, there's no escaping the fact that the Ely State Prison is in Ely and it's a long, long drive - especially the drive home as we decided to take Hwy 93 through Pioche, Panaca and Caliente. The winds were rough, the road construction was nasty, and service at the restaurant in Pioche was especially slow -- thus making for a 6.5 hour long drive home (no, I will not be billing the state for all of that time as it was my bad decision). To mitigate the bad, it should be noted that the scenery was beautiful and it's a nice diversion from the normal route through Hiko. The other minus is that death row and protective custody visits are only on Monday and Tuesday. It would be nice if they rotated the schedule a little so that these people could have an occasional weekend visit from family members.
In the news
Gibbons signs measure affecting those who plead insanity. LVRJ 6/5/07
Defeated Commissioner: Boggs charged with lying. LVRJ 6/5/07
Election day: Municipal races in play. LVRJ 6/5/07
Agency reviews LV mental facility. LVRJ 6/5/07
No money for White Pine courthouse. RGJ 6/5/07
Special legislative session required. RGJ 6/5/07
Assembly overrides Gibbons' veto on grand jury rules; Senate sustains it. Nevada Appeal 6/5/07
Highlights of Nevada's prison and public safety budgets. Nevada Appeal 6/5/07
June 04, 2007
Boggs-McDonald Indicted
The Las Vegas Review Journal reports that former Clark County Commissioner Lynnette Boggs-McDonald has been indicted on charges of perjury and offering a false document for filing or record.
In the news
Halverson cooking her own goose? LVSun 6/4/07
Lawyers opt out of judge's courtroom. LVSun 6/4/07
Judge handles tickets just fine. LVRJ 6/4/07
Most issues resolved: Session may be deadline. LVRJ 6/4/07
Editorial: Meanwhile . . . . (on judicial pay increases). LVRJ 6/4/07
New DUI bracelets help save jail space. RGJ 6/4/07
US Supreme Court issues 3 decisions
Safeco Insurance v. BurrThe United States Supreme Court issued 3 decisions today:
Safeco Insurance v. Burr (splintered decision with all 9 justices joining in the result - a company can be found to have willfully violated the federal truth-in-credit law based upon "reckless disregard" of its duties toward consumers).
Sole v. Wyner (unanimous opinion - a party that files a civil rights case cannot recover attorney's fees for winning a preliminary injunction but ultimately losing a case on the merits)
Uttecht v. Brown.
In Uttecht, the Court issued a 5-4 decision on the issue of federal court deference to trial courts on questions of whether to remove a juror from a death penalty trial because of the potential juror's views about capital punishment. Justice Kennedy authored the majority opinion and Justice Stevens authored the dissenting opinion.
The Court also dismissed the sentencing guidelines case of Claiborne v. United States, based upon the fact that the petitioner was killed last week.
The Court also issued a summary decision in Erickson v. Pardus, which involved a prison inmate's equate medical care. The Court upheld the dismissal of the civil rights complaint based upon the plaintiff's depature from conventional pleading standards.
As always, thanks to Scotusblog for the early summaries.
June 03, 2007
Senate finance committee approves pay rate for judges
The Senate Finance Committee approved a compromise pay increase for district court judges and Nevada Supreme Court justices. The judges originally asked for increases from $130,000 to $169,000 for district court judges and increases from $140,000 to $182,000 for supreme court justices. Under SB 248, if enacted, district court judges would get $160,000 and justices would get $170,000. Judges must be re-elected to receive the pay increase.
Last October I questioned whether the pay hike would result in fewer retirements as retirement pay is tied to salary for the last 36 months of service. The bottom line under the initial request, assuming that my math and understanding of the retirement system is correct, was that judges would earn $2,400 more per month by postponing their retirements. Under the amended version of SB 248, it appears that judges would earn $1,875 more per month by postponing their retirements for 36 months, or until January 2012.
June 02, 2007
Weekend News
National news (with the Nevada connection of the firing of US Attorney Dan Bogden):
Raging Caging: what the heck is vote caging, and why should we care. Dahlia Lithwick. Slate 5/31/07
And on a related note, Tim Griffin, Karl Rove's right hand man and new US Attorney for Arkansas, resigned on Thursday hours after the BBC reported that Congressman John Conyers requested the BBC's evidence on Griffin's involvement in voter fraud. Extensive discussion is available at www.gregpalast.com.
The voter fraud or caging issue has not been addressed much in the national media, let alone the Nevada papers so it is currently unclear as to whether voter caging took place during the last election in Nevada, although the Washington Post noted in a recent article that Department of Justice Criminal Division Chief of Staff Benton Campbell identified Nevada "as a problem district" concerning the Republican Party's assertions of voter fraud in association with Bogden's firing.
Other articles for the weekend include the following:
Cleanup deal is in the works. LVRJ 6/2/07
Nevada governor vetoes third bill (concerning expansion of justice court jurisdiction to cattle-rustling cases) Nevada Appeal 6/2/07
Judge: Mack's confession can't be used (based upon Washoe County Dick Gammick's illegal recording of telephone calls and failure to inform Mack that he was represented by counsel). RGJ 6/2/07
Sunday update:
Appeals court orders new trial. LVRJ 6/3/07
Smith: Time and federal patience has run out for Crazy Horse Too owner. LVRJ 6/3/07
Governor signs legislationL Illegal worker bill passes. LVRJ 6/3/07
Senate bill distances sex offenders from children. LVRJ 6/3/07
Late detective (David Mesinar) hailed for cracking of touch cases. LVRJ 6/3/07
Editorial: Important cases remain for court. LVRJ 6/3/07
Nevada lawmakers vote for good-time credits, judicial discretion. Nevada Appeal 6/3/07
June 01, 2007
He signed you Bill! Now you're a law! Part III
Part I is available here.
Part II is available here.
AB 49 - Revises certain provisions concerning jury service. Effective 5/29/07 (the provision exempting police officers from jury service expires on July 1, 2011).
AB 190 - Makes various changes to provisions governing criminal procedure. Effective 7/1/07
AB 421 - Establishes the crime of participating in an organized retail theft ring. Effective 10/1/07
AB 313 - revises provisions governing the tracking, monitoring and revocation of teacher licenses for criminal behavior. Effective 7/1/07
SB 282 - Makes supplemental appropriations to the Department of Corrections for increased costs at various facilities. Effective 5/29/07
SB 389 - Makes various changes to provisions relating to public safety. Effective 10/1/07
AB 323 Revises the amount paid to witnesses for mileage in traveling to and from a proceeding. Effective 7/1/08 (note, the date is not a typo - it really is 2008)
SB 7 - Establishes civil liability for certain acts involving the use of controlled substances and the consumption of alcoholic beverages. Effective 7/1/07
SB 10 - Prohibits certain acts relating to capturing or distributing an image of the private area of another person under certain circusmtances. Effective 10/1/07
SB 293 - Revises provisions governing drivers who are less than 18 years of age. Effective 10/1/07
SB 346 - Makes an appropriation to the Office of the Director of the Department of Health and Human Services to fund a working group to study the methamphetamine problem in Nevada for the current fiscal year. Effective 5/31/07
AB 226 - Makes various changes relating to crimes against older persons. Effective 7/1/07
AB 92 - Revises provisions governing genetic marker testing of certain convicted persons. Effective 10/1/07
SB 534 - Revises provisions governing the jurisdiction of school police officers. Effective 7/1/07
Update:
AB 137 - Revises provisions concerning acts of terrorism. Effective 10/1/07
AB 112- - Makes various changes to provisions governing protective orders. Effective 10/1/07
AB 90 - Creates the crime of paternity fraud. Effective 10/1/07
AB 55 - Makes various changes concerning court reporters. Effective 7/1/07
SB 277 - Authorizes the court to assign certain offenders to a program of treatment for certain offenses.
SB 356 - Revises provisions relating to the protection of children from abuse and neglect. Sections 4 and 5 effective 7/1/07, section 2 effective 10/1/07
AB 322 - Revises certain provisions governing elections. Effective 10/1/07
AB 342 - Makes various changes to the casting of a mailing ballot in mailing precincts. effective 10/1/07
AB 194 - Makes various changes to provisions regarding victims of domestic violence and sexual assault. Effective 10/1/07
In the news
Nevada lawmakers vote on many bills. Nevada Appeal 6/1/07
Nevada lawmakers vote for good time credits, judicial discretion. Nevada Appeal 5/31/07
Judiciary Committee: Prison reforms OK'd. LVRJ 6/1/07
Money for prison projects approved. LVRJ 6/1/07
Metro Police know who you are -- or they will eventually. LVSun 6/1/07
Lookin in on: Carson City (includes info. on the release of 55 inmates to foreign countries). LVSun 6/1/07
Juvenile center staffer arrested. LVRJ 6/1/07
Kevorkian out of prison after 8 years. AP 6/1/07
Police chief plans Citizens Patrol: Former posse members volunteer to serve with city. Elko Daily 6/1/07
US Supreme Court proposes rule changes
Scotusblog provides discussions of proposals for rule changes by the United States Supreme Court:
Electronic briefs probably will be required.
Practioners' Reactions to Proposed Revisions to Supreme Court Rules.
Practioners' Reactions to Proposed Revisions to Supreme Court Rules - Part II.