LINCOLN — Inmates on Nebraska’s death row will continue to face the death sentence after a ruling Friday by the Nebraska Supreme Court.
The ACLU of Nebraska had challenged the validity of their death sentences. The group argued that when the Nebraska Legislature repealed capital punishment in 2015, the law was in effect long enough to convert the death sentences of the 11 men then on death row to life in prison.
The civil rights organization claimed that the 2016 vote by Nebraskans to restore capital punishment pertained only to future cases.
But on Friday, the State Supreme Court agreed with a district court judge’s decision to dismiss the lawsuit.
The court ruled the inmates on death row had other legal avenues to challenge the validity of their death sentences, rather than ruling directly on the declaratory action sought by the ACLU.
Because of the dismissal on technical grounds, the seven-page ruling, written by Supreme Court Chief Justice Mike Heavican, did not address the arguments raised by the civil rights organization.
The ACLU, in a statement Friday, said it plans to pursue those issues in individual, post-conviction appeals on behalf of the inmates.
“Today’s ruling does not resolve our clients’ claims that, after the Legislature’s 2015 repeal of the death penalty, they no longer may be executed,” said Danielle Conrad, executive director of the ACLU of Nebraska. “We look forward to resolution of those claims in the individual post-conviction proceedings the court has ruled that each prisoner must undertake.”
Nebraska Attorney General Doug Peterson, whose lawyers argued the case for the state, said the Supreme Court reached the correct conclusion.
“The ACLU … requested the court override the will of the people,” Peterson said.
Attorneys with the Attorney General’s Office also argued that the Legislature, regardless of its vote to repeal the death penalty, lacks the power to overturn sentences that were previously imposed by judges.
The ACLU has actively opposed the death penalty, saying it is a waste of government resources, that minorities and low-income offenders are more likely to have the sentence imposed, and that the process lacks transparency.
Supporters of the death penalty, including Gov. Pete Ricketts, say it is a just penalty for the most heinous crimes and that it could be a deterrent to keep those sentenced to life in prison from killing prison guards or other inmates.
High court rejects state’s efforts to seal grand jury reviews of officer-involved deaths
The Omaha World-Herald secured a victory Friday in its efforts to prevent the state from sealing the record of grand jury reviews of officer-involved deaths.
The Nebraska Supreme Court rejected the Nebraska Attorney General’s Office’s appeal requesting that such records be sealedwhile a case is pending.
Two district judges had rejected attempts by Corey O’Brien, chief criminal prosecutor in the Nebraska Attorney General’s Office, to seal the testimony and exhibits that grand jurors reviewed before deciding on charges against two Omaha police officers in connection with the June 5, 2017, death of a mentally ill Oklahoma man.
O’Brien had argued, among other things, that releasing witness testimony might have a chilling effect on future witnesses’ willingness to testify — and that the release of evidence might poison the jury pool against Officers Scotty Payne and Ryan McClarty. Both faced assault charges after the death of Zachary BearHeels, a Native American man who was stranded in Omaha. Payne was acquitted; McClarty is awaiting trial.
The World-Herald was joined by Omaha television station KETV in last year’s lengthy battle to obtain the grand jury information. Omaha attorney Michael Cox represented both news media outlets.
In separate decisions, Douglas County District Judges Duane Dougherty and J Russell Derr said a state law passed in 2016requires the court to make the grand jury record available for public review. Countering the concerns about poisoning a jury pool, Derr noted that he had little problem seating a jury in the Christopher Edwards case — a sensational case in which many facts about the murder of Jessica O’Grady came out before trial.
O’Brien had argued that the law originally was designed to release grand-jury records only in cases where grand jurors cleared the officers. Such releases would lift the veil on the otherwise secret proceedings — and give the public insight into what may have prompted an officer to kill a person.
But the high court noted that the 2016 law made no distinction between grand juries that charge officers versus those that don’t. And the high court suggested that there were ways, short of refusing to release records, to preserve a defendant’s right to a fair trial.
“There is no concrete set of facts in our record that would establish good cause to not have the information be released to the media,” the Supreme Court said in the opinion written by Justice Jeffrey Funke. “For example, there has been no showing that the media coverage would not be factual, as opposed to invidious or inflammatory.”
The high court said any concerns are “for the Legislature to address, and not this court.” State Sen. Ernie Chambers of Omaha is proposing a bill that would address the matter this session.
