"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Thursday, August 18, 2016

In challenge to Nebraska's death penalty law, inmate argues that a jury, not judges, should decide his fate

Nebraska: Gathering signatures against the repeal of the death penalty.
Nebraska: Gathering signatures against the repeal of the death penalty.
A Nebraska death row inmate challenged the state's death penalty law Wednesday based on a recent U.S. Supreme Court ruling that struck down capital punishment in Florida.

The motion for post-conviction relief argues that Nebraska unconstitutionally requires a 3-judge panel to make the final sentencing decision in capital cases. The motion cites the Supreme Court opinion released this year in Hurst v. Florida, which said the U.S. Constitution requires juries to decide the critical elements of a death sentence.

"The Nebraska statutes, which allow a panel of judges, not a jury, to make findings authorizing a death sentence, violates this central constitutional tenet repeated in Hurst," Omaha lawyer Alan Stoler wrote in the motion.

A similar legal challenge that relied on the Hurst ruling prompted the Delaware Supreme Court to strike down that state's death penalty this month.

Stoler filed the motion in Scotts Bluff County District Court on behalf of Jeffrey Hessler, convicted of the 2003 1st-degree murder of 15-year-old Heather Guerrero of Gering. Hessler abducted the girl as she was delivering newspapers, then drove her to an abandoned farmhouse, where he raped her before shooting her in the head.

The jury that convicted Hessler identified aggravating circumstances necessary to warrant a death sentence, said Suzanne Gage, spokeswoman for Attorney General Doug Peterson. Jurors who heard all of the evidence in the case determined that Hessler's actions were "especially heinous, atrocious, cruel, or manifested exceptional depravity."

"The Attorney General's Office will defend the motion, which we expect will be as unsuccessful as Hessler's other 2 failed post-conviction cases," she added.

The new legal challenge comes as advocates on both sides of the death penalty ramp up efforts to sway Nebraska voters, who will be asked Nov. 8 to decide a referendum on the Legislature's 2015 repeal of capital punishment.

This week, death penalty backers released poll results indicating that a strong majority of Nebraskans support capital punishment. Meanwhile, opponents unveiled an economic analysis that says the state spends $14.6 million annually to maintain the death penalty.

Hessler's new challenge won't be decided before voters go to the polls, so it most likely becomes moot if the repeal survives. But his case will proceed if voters keep the death penalty on the books, and Hessler will try to convince the Nebraska Supreme Court to strike down the law.

In Hurst v. Florida, the U.S. Supreme Court negated a death penalty sentencing scheme that required juries to make a recommendation to the judge on sentencing. The final decision, however, rested with the judge.

The Supreme Court said the Florida law violated the Sixth Amendment to the U.S. Constitution, which guarantees the right to a jury trial.

Nebraska's system is similar, but not identical, to Florida's.

In Nebraska, a 2nd trial takes place after a defendant is convicted in a death penalty case. The same jury that decided guilt also decides whether aggravating factors exist to justify the defendant's execution.

If the jury finds that aggravating factors were present in the murder, a three-judge panel is convened to determine if they outweigh any mitigating factors in the defendant's favor. The 3 judges also must determine if the death sentence is warranted and, if so, whether it is excessive or disproportionate to the penalty imposed in similar cases.

After making the necessary determinations, the judges impose the sentence.

"Those findings are elements of the crime of capital murder," Stoler said in a legal brief. "As a result, these elements must be found by a unanimous jury, not a judge."

Hessler, 37, is 1 of 10 men on Nebraska's death row. He was sentenced in 2005 and lost his appeal to the State Supreme Court 2 years later.

He has filed 2 other post-conviction appeals, which were unsuccessful. His newest motion will be heard by District Judge Randall Lippstreu.

Source: Omaha World-Herald, August 18, 2016

Nebraska death penalty backers unveil campaign website

A group that wants to reinstate Nebraska's death penalty in the November election has unveiled a website and online video to make its case to voters.

The video released Tuesday highlights crimes committed by Nebraska's death row inmates. 

Nebraskans for the Death Penalty says the ad is intended to reinforce that, to keep the death penalty on the books, voters need to vote to repeal the legislation which abolished it.

Nebraska lawmakers eliminated the death penalty in May 2015, overriding Gov. Pete Ricketts' veto. 

A petition drive partially financed by Ricketts gathered enough signatures to prevent the law from going into effect until voters decide whether to retain it.

The video is narrated by Steve Zimkilton, the voiceover actor featured in the television series Law & Order.

Source: Associated Press, August 18, 2016

State Senators Thank Dr. Ernie Goss for study on death penalty costs

“Now there is validation from one of the most respected economists in our region, that we made the right choice.”

Nebraska: Gathering signatures against the repeal of the death penalty.
LINCOLN, NE – Following a private briefing with Dr. Ernie Goss to review his study that shows the death penalty is costing the State of Nebraska $14.6 million each year, a bipartisan group of Nebraska State Senators, said today they now have further evidence that their decision was the right one for all Nebraskans.In a show of solidarity for their vote in 2015 to end Nebraska’s death penalty and replace it with life in prison, a supermajority of Senators released a letter today that reads in part:

“In May of last year, the Nebraska Legislature voted to end a government program that we viewed as unnecessary, unworkable, and a waste of hard-earned taxpayer dollars. Many of us consider that vote one of the most important, and certainly one of the most carefully thought through, votes of our career. Now there is validation from one of the most respected economists in our region that we made the right choice.”

“Dr. Goss’ findings affirm the decision the Unicameral made when we acted to remove our broken, costly death penalty and leave in place the strong alternative of life without the possibility of parole,” said Speaker Galen Hadley.

Also appearing at the news conference were Grand Island Sen. Mike Gloor, and Lincoln Senators Colby Coash and Adam Morfeld.

Sen. Mike Gloor

“I am not opposed to the death penalty, in theory. But I wasn’t voting on a “theoretical” death penalty, I voted on Nebraska’s death penalty, and I couldn’t keep this broken law on the books after I saw how dysfunctional it is.”

“In the last 40 years, we have only had 3 executions. And in the last 19 years, we’ve been unable to carry out a single executions – despite claims from multiple administrations they would get the system running again. Something that hasn’t worked in two decades is clearly a broken government program.”

“Now we know the alarming price tag of this broken system. Thanks to the careful analysis of Dr. Ernie Goss, esteemed economist from Creighton University, we now know exactly how much Nebraska’s death penalty is costing us - $14.6million annually. As a fiscal conservative opposed to broken government programs, I am more confident than ever now that our death penalty was failing Nebraskans,” Sen. Gloor said.

Sen. Colby Coash

“Now that we know the state is spending $14.6 million every year to keep our broken death penalty on the books, we can turn our attention toward finding ways to use those funds that will best serve our state. $14.6 million would go a long way to supporting our struggling department of corrections. People who are concerned about keep our communities safe should not be willing to continue spending millions on a capital punishment system that is little more than a symbol. We instead need to invest our valuable crime prevention dollars on proven methods for preventing violent crime, and keeping our prisons and guards secure.”

Sen. Adam Morfeld

“There were many reasons the 30 Senators – 13 Democrats, 1 independent, and 16 Republicans – voted to end Nebraska’s death penalty. Fear we would execute the innocent. The fact there is no evidence it prevents violent crime. Frustration that decades of appeals leave victims families in legal limbo.

And for many, especially my Republican colleagues, concerns about the price tag of the death penalty. We now have definitive data from the economist the Governor himself relied on when founding the conservative Platte Institute, that the death penalty in Nebraska comes with a $14.6 million annual price tag,” Sen. Morfeld said.

Source: Retain a Just Nebraska, August 18, 2016. Retain a Just Nebraska is a public education campaign to urge the retention of LB 268, the Nebraska Legislature’s vote to end the death penalty. Supporters include fiscal conservatives, law enforcement officials, faith leaders, murder victims’ families, and Nebraskans from all walks of life. It is a statewide coalition conducting public education on the smart alternative of life in prison without parole, which protects society without the many problems of our death penalty system.

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