A Nebraska trial judge has permitted Patrick Schroeder (pictured)—whose lawyers from the Nebraska Commission on Public Advocacy had challenged the constitutionality of the state’s death penalty—to fire his lawyers, withdraw the challenge, and plead guilty to first-degree murder. The court deferred until August 22 whether to also permit Schroeder to waive his right to have a jury decide whether aggravating circumstance exist that could make him eligible for the death penalty. The court reappointed public defenders Sarah Newell and Todd Lancaster to represent Schroeder in the penalty-phase proceedings. Schroeder was serving a life sentence for a prior murder when he choked Terry Berry, his cellmate at the Tecumseh State Correctional Institution, to death in April. Authorities found a ripped-up note in the trash can of their cell, which read: “You really need to get Terry Berry out of my cell before he gets hurt.” In June, Schroeder’s lawyers had filed a motion to bar the death penalty in his case, arguing that its application in Nebraska is unconstitutionally arbitrary and that the state’s sentencing procedures violate the U.S. Supreme Court’s 2016 decision in Hurst v. Florida requiring that juries find all facts necessary to impose the death penalty. The motion argued that Nebraska’s law is inconsistently applied geographically, with only four of the state’s 93 counties imposing death sentences, and is racially discriminatory. Eight of the nine men sent to death row in the last 15 years in the state have been defendants of color. Schroeder’s lawyers also asserted that Nebraska’s three-judge sentencing panel violated Hurst because it required that judges, rather than a jury, determine whether aggravating circumstances outweigh mitigating circumstances and justify imposing the death penalty. Only a handful of states permit judicial death sentencing without a prior unanimous jury finding that aggravating circumstances outweigh mitigation. Courts in Florida and Delaware have already struck down those states’ statutes, holding that the weighing process is a factfinding that must be made by a jury. Alabama’s appeal courts overturned a trial court ruling that its judicial factfinding was unconstitutional. The motion also had challenged the state’s execution protocol as an unlawful delegation of legislative powers that gives prison directors overly broad discretion to determine the types and quantities of drugs to be used in the lethal-injection process. Schroeder’s waiver leaves the constitutionality of Nebraska’s sentencing statute unresolved. The Nebraska legislature repealed the state’s death penalty in 2015 over the veto of Governor Pete Ricketts, but Nebraska voters restored the statute in a 2016 referendum. The state last carried out an execution in 1997. [UPDATE: The Nebraska Supreme Court has agreed to review an appeal by brought by death-row prisoner Marco Torres to determine whether his challenge to the constitutionality of the state’s death-penalty statute under Hust v. Florida was timely raised and can be decided by the courts.]

(E. Nohr, “Inmate drops attorneys, pleads guilty to murder in Tecumseh cellmate’s death,” Omaha World-Herald, July 31, 2017; P. Hammel, “Nebraska inmate facing death penalty for allegedly killing cellmate files motion contesting its constitutionality,” Omaha World-Herald, June 21, 2017; P. Hammel, J. Duggan, “Supreme Court says Florida’s system of deciding death sentences, a process similar to Nebraska’s, is unconstitutional,” Omaha World-Herald, January 20, 2016.) [UPDATE: L. Pilger, “Nebraska Supreme Court agrees to take death-row inmate’s appeal,” Lincoln Journal-Star, July 31, 2017).] See Nebraska, Arbitrariness, and Representation.

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