The clock may have run out on one avenue pursued by defense attorneys on behalf of inmates on Nebraska's death row.
Death penalty opponents argue a 2016 U.S. Supreme Court decision in a Florida case - which said jurors must make every finding necessary in order for someone to be sentenced to death - puts the constitutionality of Nebraska's sentencing procedures in doubt.
But Friday, in arguments before the Nebraska Supreme Court in the case of Marco Torres, it appeared it might be too late for him and others on the state's death row to rely on the 2016 decision in their appeals.
That's not because the justices seemed convinced Nebraska's sentencing method was constitutional or that the U.S. Supreme Court decision only applied to new cases going forward.
They didn't get that far. And it appears they might not - at least in Torres' case.
All because he and most others on death row didn't raise the issue within a year of the Jan. 12, 2016, decision in Hurst v. Florida.
Torres' appeal, filed 5 months too late, was the first citing the Hurst decision to reach Nebraska's highest court.
Friday, as defense attorney Jeff Pickens of the Nebraska Commission on Public Advocacy began to argue the court should wait for the U.S. Supreme Court to answer whether Hurst applies retroactively, justices quickly jumped in, asking how they "get past" the1-year statute of limitations.
"Well, that's a great question," Pickens answered.
While it appears that one year has passed since the decision at issue, he pointed justices to another U.S. Supreme Court decision in 2006 that says courts ought to consider whether the administration of justice is better served by addressing the merits raised or dismissing a case.
"That's what I'm hanging my hat on," he said.
Justice William Cassel said he had a bit of a quarrel with the premise that the district court had denied Torres due process to raise the issue when it dismissed his appeal without a hearing, citing the missed deadline.
"They (defendants) do have an opportunity. They may choose not to use it. But that's their problem, isn't it?" Cassel asked.
Pickens countered, asking whether a judge would automatically rule in favor of 1 side in a civil case - as compared with Torres' criminal case - without giving notice to anybody involved or having a hearing.
"I suspect that probably would not happen," he said.
Pickens said he thinks Torres' case is one where a trial court could consider that "the best interest of justice would be for the court not to dismiss the case based on statute of limitations and go ahead and get to the merits."
But, Justice Stephanie Stacy said, there is no "interest of justice" exception to the state's statutory time limitations on appeals.
Solicitor General James Smith said the Nebraska Supreme Court is required to uphold state law and doesn't have the authority to add an "interest of justice" exception when the Legislature never put such language in statute.
"Frankly, the analysis can and should end there," he said.
Smith stated it simply: The cases at issue in Torres' motion were more than a year old, so his motion is time-barred on its face.
The district court's reason for dismissing the motion was correct, he said, and that court's decision should be affirmed.
Justice Lindsey Miller-Lerman asked Smith if it was his position that the court didn???t need to get into the Hurst decision, even if Hurst ultimately raised a new principle and was retroactive.
Yes, Smith said.
In Hurst, the nation's high court found that a man's death sentence in a 1998 murder case violated the Sixth Amendment because, under Florida's sentencing scheme, a judge, not a jury, made the critical findings necessary to impose the death penalty.
In Nebraska, juries decide whether aggravating factors exist to justify an execution. If so, a 3-judge panel then determines whether the aggravating factors outweigh any mitigating factors in the defendant's favor to warrant a death sentence.
This week, Amy Miller, legal director of the ACLU of Nebraska, said the Hurst decision is also raised in the appeal of death-row inmate John Lotter.
"But whether or not it will have any impact on another case I think is the troubling concern," she said, seeming to refer to Carey Dean Moore.
State officials this week asked the Nebraska Supreme Court to set an execution date for Moore, who killed 2 cab drivers in Omaha in 1979 and has been on death row for nearly 38 years.
If the Supreme Court issues an execution warrant, Moore could be killed by lethal injection before the Hurst issue even is decided.
Torres, 43, was sent to death row on 2 counts of 1st-degree murder for killing roommates Timothy Donohue, 48, and Edward Hall, 60, in Grand Island in 2007. His DNA was found at the crime scene and he had used Hall's debit card 2 days before his body was found.
Source: Lincoln Journal Star, Lori Pilger, April 6, 2018
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