Nebraska Legislation Prior to 2007

  • Nebraska’s Death Penalty Repeal Bill Falls One Vote Short A mea­sure to repeal Nebraskas death penal­ty and replace it with a sen­tence of life with­out parole fell one vote short of mov­ing to the sec­ond of three stages in con­sid­er­a­tion by the uni­cam­er­al leg­is­la­ture. It was the first time the full leg­is­la­ture had debat­ed the death penal­ty in near­ly two decades. The mea­sure’s defeat fol­lowed two days of debate about cap­i­tal pun­ish­ment, includ­ing whether deci­sions to impose the death penal­ty reflect social, eco­nom­ic or racial bias. In addi­tion, some leg­is­la­tors crit­i­cized the state’s death penal­ty as arbi­trary in nature. Legislators admit­ted that they wres­tled with the issue as both a mat­ter of pub­lic pol­i­cy and con­science. Senator Brad Ashford, chair­man of the Judiciary Committee, said that he found the pun­ish­ment to be arbi­trary because there are inmates serv­ing life sen­tences in the state whose crimes were every bit as heinous as those com­mit­ted by the peo­ple on Nebraska’s death row. Senator Tom Carlson, who clas­si­fied him­self as pro-life,” said, To be con­sis­tent­ly pro-life, maybe I should oppose the death penal­ty.” In the end, Carlson and Ashford were both among the 24 leg­is­la­tors who vot­ed to advance the bill for more debate. Twenty-five leg­is­la­tors vot­ed against advace­ment. The bil­l’s spon­sor, Senator Ernie Chambers, said he would try to win pas­sage of a sim­i­lar mea­sure next year. (Nebraska State Paper, March 202007).
  • Nebraska Repeal Bill Passes Unanimously in Committee For the first time in near­ly two decades, mem­bers of the Nebraskas uni­cam­er­al leg­is­la­ture will have an oppor­tu­ni­ty to debate a bill that would repeal the state’s death penal­ty and replace it with a sen­tence of life with­out parole and an order of resti­tu­tion. Members of the leg­is­la­ture’s Judiciary Committee unan­i­mous­ly advanced the bill, not­ing that their col­leagues in the full sen­ate should have a chance to debate the mea­sure. The bil­l’s spon­sor, Senator Ernie Chambers, intro­duced a sim­i­lar mea­sure in 1979 that won approval by the leg­is­la­ture, but was vetoed by then-Governor Charles Thorne. During the Judiciary Committee’s hear­ing on the bill, those tes­ti­fy­ing not­ed that cap­i­tal pun­ish­ment is more expen­sive than sen­tences of life with­out parole and urged pas­sage of the mea­sure because Nebraska’s cur­rent death penal­ty does not ade­quate­ly address the poten­tial for racial bias and wrong­ful con­vic­tions in cap­i­tal cas­es. University of Colorado soci­ol­o­gy pro­fes­sor Michael Radelet tes­ti­fied that cap­i­tal pun­ish­ment does not deter mur­der and that pub­lic sup­port for the death penal­ty is wan­ing. Former Senator Loran Schmit told the com­mit­tee that he was an out­spo­ken sup­port­er of the death penal­ty for many years before he was a mem­ber of the Legislature. He said he changed his mind when he learned of the dis­par­i­ties in sen­tenc­ing for those who com­mit mur­der. Schmit added, I also thought the death penal­ty would be a deter­rent. I no longer believe that.”(Lincoln Star Journal, February 12007).
  • A study com­mis­sioned by the Nebraska leg­is­la­ture and released August 1 found that death sen­tences are almost 4 times more like­ly when the vic­tim in the under­ly­ing mur­der was well-to-do (high socio-eco­nom­ic sta­tus) than when the vic­tim is poor­er, even when sim­i­lar crimes are com­pared. This result rais­es the prospect that the lives of the wealthy are count­ed as more valu­able in the crim­i­nal jus­tice sys­tem than the lives of the poor. The study also found evi­dence of geo­graph­i­cal dis­par­i­ties in seek­ing the death penal­ty. Prosecutors in urban coun­ties were more like­ly to seek the death penal­ty than those in rur­al coun­ties. This dis­par­i­ty was masked due to a reverse trend by Nebraska judges in hand­ing down death sen­tences, with the urban judges hand­ing down less death sen­tences. The study did not find racial bias in the appli­ca­tion of Nebraska’s death penal­ty, nor did it find that death sen­tences were dis­pro­por­tion­ate to the crimes com­mit­ted. The study looked at over 700 homi­cide cas­es that result­ed in a con­vic­tion between 1973 and 1999, though only 177 death-eli­gi­ble” homi­cides were close­ly exam­ined. (Executive Summary: The Disposition of Nebraska Capital and Non-Capital Homicide Cases (1973 – 1999); A Legal and Empirical Analysis).
  • In 1999, a bill was passed that pro­vides fund­ing for a study on the fair­ness of the appli­ca­tion of the death penal­ty in Nebraska. The study will cost between $120,000 and $160,000 and will ana­lyze the near­ly 1,300 homi­cides com­mit­ted in Nebraska since 1973 based on race, gen­der, eco­nom­ic sta­tus and the crimes them­selves. The study, con­duct­ed by the Nebraska Crime Commission, was released on August 12001.
Nebraska Legislation Prior to 2007 | Death Penalty Information Center

Capital Case Roundup — Death Penalty Court Decisions the Week of June 72021

NEWS (6/​9/​21) — Nebraska: A pan­el of three judges has sen­tenced Aubrey Trail to death for the 2017 killing of Sydney Loofe. In a state­ment to the court before the pan­el pro­nounced sen­tence, Trail admit­ted to the killing but said that his co-defen­dant, Bailey Boswell, who faces cap­i­tal sen­tenc­ing hear­ing lat­er this month, was not involved in the killing. Trail is the 12th per­son on Nebraska’s death row.

Trail’s death sen­tence con­tin­ues a trend in which new death sen­tences are dis­pro­por­tion­al­ly imposed in non-jury pro­ceed­ings or in cas­es in which defen­dants are per­mit­ted to waive key tri­al rights or have asked to be exe­cut­ed. Three of the eigh­teen peo­ple sen­tenced to death in 2020 waived their rights to a jury tri­al and a fourth rep­re­sent­ed him­self from arrest through tri­al. In 2019, three of the 22 defen­dants sen­tenced to death waived their rights to jury sen­tenc­ing, two oth­ers were sen­tenced to death by Alabama judges after non-unan­i­mous votes by sen­tenc­ing juries, and four more waived their rights to coun­sel and/​or to present mitigating evidence.

Of the four death sen­tences DPIC has ver­i­fied so far in 2021, Trail had no penal­ty jury, Michael Powell was sen­tenced to death by an Alabama judge after a non-unan­i­mous jury vote at sen­tenc­ing and William Wells plead­ed guilty in Florida and has repeat­ed­ly said that he wants to die.


NEWS (6/​4/​21) — Texas: A Bexar County judge has resen­tenced for­mer Texas death-row pris­on­er Noah Espada to life impris­on­ment, near­ly six years after a Texas appeals court over­turned his death sen­tence because of per­jured tes­ti­mo­ny by a pros­e­cu­tion wit­ness in the penal­ty phase of Espada’s trial.

Espada was sen­tenced to death in 2005 based in large part on the tes­ti­mo­ny of a for­mer sheriff’s deputy, Christopher Nieto, that Espada would pose a future dan­ger in pris­on­er if sen­tenced to life. Nieto lied to the jury about the rea­sons he had left his job in the sheriff’s office, false­ly claimed that Espada had drugs in his cell, and false­ly told the jury that Espada had, with­out provo­ca­tion, attacked anoth­er pris­on­er. In a post-con­vic­tion hear­ing in 2012, Espada pre­sent­ed evi­dence that, less than a month before writ­ing up Espada for alleged dis­ci­pli­nary offens­es, Nieto had been sus­pend­ed for leav­ing his post and threat­en­ing Espada, that Nieto had been under inves­ti­ga­tion for smug­gling drugs into the prison, and that Nieto had resigned from the sheriff’s office rather than take a poly­graph test about his drug activ­i­ties. Espada also pre­sent­ed evi­dence that he had not attacked any­one, but that Nieto had actu­al­ly arranged for anoth­er pris­on­er to attack Espada.

On July 1, 2015, the Texas Court of Criminal Appeals over­turned Espada’s death sen­tence based upon Nieto’s per­jured tes­ti­mo­ny. After sev­er­al years of unsuc­cess­ful lit­i­ga­tion by Espada to bar pros­e­cu­tors from argu­ing that he would pose a risk of future dan­ger­ous­ness, the par­ties agreed to a deal in which Espada could become eli­gi­ble for parole at age 71 in 2055.

Nebraska Legislation Prior to 2007 | Death Penalty Information Center

News Brief — Coronavirus Effects Continue to be Felt in Capital Prosecutions

NEWS (4/​24/​20) — California: The death penal­ty tri­al of Kori Muhammad for the killings of four peo­ple in two sep­a­rate inci­dents end­ed with­out advanc­ing to a penal­ty phase just two days after a Fresno County jury con­vict­ed him of one count of first-degree mur­der and three counts of sec­ond-degree mur­der. The tri­al had been inter­rupt­ed by coro­n­avirus court clo­sures, with guilt-phase jury delib­er­a­tions halt­ed for four weeks in March, then com­plet­ed on April 22.

Prosecutors agreed to with­draw the death penal­ty in exchange for Muhammad’s with­draw­al of his insan­i­ty plea. A san­i­ty hear­ing had been sched­uled for April 27, 2020 in front of Judge Jonathan B. Conklin (pic­tured). The res­o­lu­tion of the case avoid­ed the neces­si­ty of bring­ing jurors, lay and expert wit­ness­es, the defense and pros­e­cu­tion teams, and court per­son­nel into the cour­t­house for a poten­tial­ly exten­sive penalty-phase proceeding.


NEWS (4/​24/​20) — Ohio: The Butler County Court of Common Pleas has resched­uled a hear­ing on a motion to sup­press evi­dence in the death-penal­ty tri­al of Gurpreet Singh, as a result of health con­cerns relat­ed to the coro­n­avirus pan­dem­ic. Singh is charged with killing his wife and three oth­er family members.

The sup­pres­sion hear­ing, which began with a day-long hear­ing in March, was ini­tial­ly con­tin­ued for two weeks and then delayed again until April 27. It is now sched­uled for June 22. It is antic­i­pat­ed that the pend­ing September 21, 2020 tri­al date will be resched­uled at that time.


NEWS (4/​22/​20) — California: Citing coro­n­avirus health con­cerns, a Sacramento County Superior Court judge has resched­uled an April 22, 2020 motions hear­ing and delayed the sched­uled May 12 pre­lim­i­nary hear­ing of 72-year-old Joseph DeAngelo, charged with 13 mur­ders and oth­er felonies alleged­ly com­mit­ted in the 1970s and 1980s in six California coun­ties. Prosecutors are seek­ing the death penal­ty against DeAngelo, alleged to be the so-called Golden State Killer.” He and many of the 150 wit­ness­es expect­ed to tes­ti­fy at the pre­lim­i­nary hear­ing are in the age range that is most vul­ner­a­ble to the COVID-19 virus. 

The Sacramento County courts are cur­rent­ly closed until May 19. The court set a new June 29 date for argu­ment on the pend­ing motions in the case.


NEWS (4/​17/​20) — Nebraska: A Saline County tri­al court judge has issued an order post­pon­ing the first step of the sen­tenc­ing phase of Nebraska cap­i­tal defen­dant Aubrey Trail’s death-penal­ty tri­al. The penal­ty tri­al — which under Nebraska law con­sists first of a deter­mi­na­tion of whether aggra­vat­ing cir­cum­stances exist that make a defen­dant eli­gi­ble for the death penal­ty and then a penal­ty hear­ing con­duct­ed in front of a three-judge pan­el — was pushed back from June 23 – 26 to December 15 – 18

A jury con­vict­ed Trail in July 2019 of first-degree mur­der in the killing and dis­mem­ber­ment of a store clerk. Trail, who slashed his neck with a razor in the court­room in June 2019 after curs­ing the jury, and emailed the Lincoln Journal-Star in January 2020 to say If I am sen­tenced to death, I will file a suit to try and force the state to car­ry out the sen­tence in a time­ly fash­ion,” waived his right to have a jury decide his death-eligibility. 

This is the sec­ond sig­nif­i­cant delay in the penal­ty pro­ceed­ings for Trail. In February 2020, District Judge Julie Smith — who as General Counsel to the Nebraska Department of Correctional Services had draft­ed the state’s exe­cu­tion pro­to­col — recused her­self from the sen­tenc­ing pan­el after charges that her par­tic­i­pa­tion in Trail’s sen­tenc­ing would cre­ate an appear­ance of judicial bias.

Sources

Bethany Clough, Kori Muhammad tri­al: Death penal­ty off the table for mass shoot­er. Here’s why, Fresno Bee, April 24, 2020; Corin Hoggard, Insanity plea dropped, death penal­ty dropped in Kori Muhammad mur­der tri­al, KFSN, April 24, 2020; Robert Rodriguez, Kori Muhammad tri­al: Jury reach­es ver­dict for mass shoot­er who killed four, Fresno Bee, April 22, 2020; Lauren Pack, Hearing for man charged in West Chester quadru­ple homi­cide moved to June, Butler County Journal-News, April 24, 2020; Megan Diskin, Preliminary hear­ing for sus­pect­ed Golden State Killer delayed by coro­n­avirus, Ventura County Star, April 22, 2020; Sentencing post­poned in death penal­ty case, Associated Press, April 172020.

Photo cred­it: Screenshot from Fresno Bee court­room footage of the Kori Muhammad tri­al by Craig Kohlruss.

Nebraska Legislation Prior to 2007 | Death Penalty Information Center

Capital Case Roundup — Court Rulings the Week of March 302020

Nebraska (4/​3/​20) — In a state post-con­vic­tion appeal, the Nebraska Supreme Court reject­ed a chal­lenge to the state’s cap­i­tal sen­tenc­ing process filed by death-row pris­on­er Jeffrey Hessler.

Hessler argued that Nebraska’s three-judge sen­tenc­ing pro­ceed­ings vio­lat­ed his Sixth Amendment right to have a jury deter­mine all facts nec­es­sary for a death sen­tence to be imposed. The court ruled that Hessler’s argu­ment was untime­ly and there­fore pro­ce­du­ral­ly barred, and added that under the recent U.S. Supreme Court deci­sion in McKinney v. Arizona, there is no con­sti­tu­tion­al require­ment that the jury be the ulti­mate sen­tencer in a death penalty case.


Florida (4/​2/​20) — The Florida Supreme Court issued two death penal­ty deci­sions, one uphold­ing the death sen­tence imposed on Raymond Bright in a 2016 cap­i­tal resen­tenc­ing hear­ing and the sec­ond declin­ing to recon­sid­er its rul­ing in State v. Poole in which it reced­ed from its pri­or deci­sions requir­ing that cap­i­tal sen­tenc­ing juries unan­i­mous­ly agree to the death penal­ty before a tri­al judge may sen­tence a defen­dant to death. In the sec­ond case, it also clar­i­fied that Mark Anthony Poole is enti­tled to review of the oth­er penal­ty-phase claims he had raised in his post-con­vic­tion peti­tion that had not been addressed on the mer­its by the tri­al court in its pri­or rul­ing in the case.


California (4/​2/​20) — On direct appeal, the California Supreme Court upheld the con­vic­tion and death sen­tence imposed on James Michael Fayed in Los Angeles in 2011 for arrang­ing for the mur­der of his estranged wife. At the time of the mur­der, the Fayeds were involved in divorce pro­ceed­ings and were under fed­er­al inves­ti­ga­tion for alleged money laundering.

The court held that the pros­e­cu­tor had engaged in mis­con­duct in the guilt-phase clos­ing argu­ment by ask­ing the jury to imag­ine what was going through the vic­tim’s mind in the sev­er­al min­utes it took for her to die. However, it ruled that, giv­en the strength of the evi­dence against Fayed, the mis­con­duct was not prej­u­di­cial. It declined to rule on a con­flict of inter­est claim Fayed raised on appeal after his pros­e­cu­tor became a part­ner in his tri­al coun­sel’s law firm, say­ing that because the part­ner­ship … began after defendant’s cap­i­tal tri­al end­ed, rel­e­vant facts relat­ing to any con­flict of inter­est issue are not part of the record.”


Missouri (4/​1/​20) — The U.S. Court of Appeals for the Eighth Circuit has reversed itself and denied Missouri death-row pris­on­er Ernest Johnsons chal­lenge to the con­sti­tu­tion­al­i­ty of Missouri’s use of pen­to­bar­bi­tal to exe­cute him by lethal injec­tion. The U.S. Supreme Court had remand­ed the case to the cir­cuit with direc­tions to recon­sid­er Johnson’s case in light of the Court’s 2019 lethal-injec­tion deci­sion in Bucklew v. Precythe.

The Eighth Circuit ruled that Johnson — who had pre­sent­ed evi­dence that, because of his med­ical con­di­tion, lethal injec­tion by pen­to­bar­bi­tal would cause him to expe­ri­ence a severe­ly painful” vio­lent seizure” — had met Bucklews first require­ment of plead­ing that the state’s exe­cu­tion process was cru­el. However, the court said that he longer met the require­ment of prov­ing that Missouri had a less painful alter­na­tive method to car­ry out his exe­cu­tion because the alter­na­tive method he had offered — nitro­gen hypox­ia — has nev­er been used for that pur­pose before and, under Bucklew, Missouri is not required to use an untried and untest­ed” method to exe­cute a prisoner.


Texas (4/​1/​20) — The Texas Court of Criminal Appeals denied relief to death-row pris­on­ers in three sep­a­rate cas­es.

  • In a deci­sion on direct appeal, the court affirmed the con­vic­tion and death sen­tence of Billy Joel Tracy for the 2015 prison killing of a correctional officer.
  • In an unsigned, unpub­lished order on a sub­se­quent appli­ca­tion for state habeas cor­pus relief, the court denied three claims pre­sent­ed by Jaime Cole chal­leng­ing the effec­tive­ness of the rep­re­sen­ta­tion pro­vid­ed to him in the penal­ty phase of his cap­i­tal tri­al. Cole alleged that coun­sel had been inef­fec­tive when they failed to (1) inves­ti­gate and present mit­i­gat­ing evi­dence of Cole’s expo­sure to neu­ro­tox­ins and brain dam­age; (2) devel­op and present reli­able evi­dence that he would not pose a future dan­ger to soci­ety if sen­tenced to life; and (3) object to the tri­al court’s state­ment to the jury that the case would be auto­mat­i­cal­ly reviewed on appeal if they sen­tenced Cole to death.
  • In anoth­er unsigned, unpub­lished order on a suc­ces­sive state habeas peti­tion, the court upheld Brian Daviss death sen­tence, rul­ing that he had not made an ade­quate pri­ma facie show­ing regard­ing his claim of intellectual disability.”
Nebraska Legislation Prior to 2007 | Death Penalty Information Center

News Brief — Coronavirus Effects Continue to be Felt in Capital Prosecutions

NEWS (4/​24/​20) — California: The death penal­ty tri­al of Kori Muhammad for the killings of four peo­ple in two sep­a­rate inci­dents end­ed with­out advanc­ing to a penal­ty phase just two days after a Fresno County jury con­vict­ed him of one count of first-degree mur­der and three counts of sec­ond-degree mur­der. The tri­al had been inter­rupt­ed by coro­n­avirus court clo­sures, with guilt-phase jury delib­er­a­tions halt­ed for four weeks in March, then com­plet­ed on April 22.

Prosecutors agreed to with­draw the death penal­ty in exchange for Muhammad’s with­draw­al of his insan­i­ty plea. A san­i­ty hear­ing had been sched­uled for April 27, 2020 in front of Judge Jonathan B. Conklin (pic­tured). The res­o­lu­tion of the case avoid­ed the neces­si­ty of bring­ing jurors, lay and expert wit­ness­es, the defense and pros­e­cu­tion teams, and court per­son­nel into the cour­t­house for a poten­tial­ly exten­sive penalty-phase proceeding.


NEWS (4/​24/​20) — Ohio: The Butler County Court of Common Pleas has resched­uled a hear­ing on a motion to sup­press evi­dence in the death-penal­ty tri­al of Gurpreet Singh, as a result of health con­cerns relat­ed to the coro­n­avirus pan­dem­ic. Singh is charged with killing his wife and three oth­er family members.

The sup­pres­sion hear­ing, which began with a day-long hear­ing in March, was ini­tial­ly con­tin­ued for two weeks and then delayed again until April 27. It is now sched­uled for June 22. It is antic­i­pat­ed that the pend­ing September 21, 2020 tri­al date will be resched­uled at that time.


NEWS (4/​22/​20) — California: Citing coro­n­avirus health con­cerns, a Sacramento County Superior Court judge has resched­uled an April 22, 2020 motions hear­ing and delayed the sched­uled May 12 pre­lim­i­nary hear­ing of 72-year-old Joseph DeAngelo, charged with 13 mur­ders and oth­er felonies alleged­ly com­mit­ted in the 1970s and 1980s in six California coun­ties. Prosecutors are seek­ing the death penal­ty against DeAngelo, alleged to be the so-called Golden State Killer.” He and many of the 150 wit­ness­es expect­ed to tes­ti­fy at the pre­lim­i­nary hear­ing are in the age range that is most vul­ner­a­ble to the COVID-19 virus. 

The Sacramento County courts are cur­rent­ly closed until May 19. The court set a new June 29 date for argu­ment on the pend­ing motions in the case.


NEWS (4/​17/​20) — Nebraska: A Saline County tri­al court judge has issued an order post­pon­ing the first step of the sen­tenc­ing phase of Nebraska cap­i­tal defen­dant Aubrey Trail’s death-penal­ty tri­al. The penal­ty tri­al — which under Nebraska law con­sists first of a deter­mi­na­tion of whether aggra­vat­ing cir­cum­stances exist that make a defen­dant eli­gi­ble for the death penal­ty and then a penal­ty hear­ing con­duct­ed in front of a three-judge pan­el — was pushed back from June 23 – 26 to December 15 – 18

A jury con­vict­ed Trail in July 2019 of first-degree mur­der in the killing and dis­mem­ber­ment of a store clerk. Trail, who slashed his neck with a razor in the court­room in June 2019 after curs­ing the jury, and emailed the Lincoln Journal-Star in January 2020 to say If I am sen­tenced to death, I will file a suit to try and force the state to car­ry out the sen­tence in a time­ly fash­ion,” waived his right to have a jury decide his death-eligibility. 

This is the sec­ond sig­nif­i­cant delay in the penal­ty pro­ceed­ings for Trail. In February 2020, District Judge Julie Smith — who as General Counsel to the Nebraska Department of Correctional Services had draft­ed the state’s exe­cu­tion pro­to­col — recused her­self from the sen­tenc­ing pan­el after charges that her par­tic­i­pa­tion in Trail’s sen­tenc­ing would cre­ate an appear­ance of judicial bias.

Sources

Bethany Clough, Kori Muhammad tri­al: Death penal­ty off the table for mass shoot­er. Here’s why, Fresno Bee, April 24, 2020; Corin Hoggard, Insanity plea dropped, death penal­ty dropped in Kori Muhammad mur­der tri­al, KFSN, April 24, 2020; Robert Rodriguez, Kori Muhammad tri­al: Jury reach­es ver­dict for mass shoot­er who killed four, Fresno Bee, April 22, 2020; Lauren Pack, Hearing for man charged in West Chester quadru­ple homi­cide moved to June, Butler County Journal-News, April 24, 2020; Megan Diskin, Preliminary hear­ing for sus­pect­ed Golden State Killer delayed by coro­n­avirus, Ventura County Star, April 22, 2020; Sentencing post­poned in death penal­ty case, Associated Press, April 172020.

Photo cred­it: Screenshot from Fresno Bee court­room footage of the Kori Muhammad tri­al by Craig Kohlruss.