Top Attorney General prosecutor cited for misconduct for murder trial statements

UPDATE:

In an unusually harsh rebuke of an attorney, much less a top lawyer with the Nebraska Attorney General’s office, a Nebraska Supreme Court opinion cited Corey O’Brien for “prosecutorial misconduct” which threatened the right for a fair trial of a defendant.

The incident came close to requiring a new trial for a man accused of murdering his cousin in 2015.

NET News was the first to report about the Supreme Court’s displeasure when it came to light during an appeal of the case earlier this year.

O’Brien served as lead attorney for a murder case in Falls City, assisting the local prosecutor in Richardson County.

Desiderio “Desi” Hernandez was charged with first degree murder after the of shooting death of his cousin, Joey Debella, Jr. Testimony during the trial suggested both men were selling drugs, primarily methamphetamine. The August night of the shooting, others were in the house using meth. They delayed calling 911 in fear police would discover their drugs. After police and emergency medical care arrived Debella was still alive. A week later his family removed him from life support.

Hernandez was found guilty by the jury in 2015.

While the evidence at trial, in the opinion of the Nebraska Supreme Court, was “overwhelming,” some in the courtroom felt O’Brien’s impassioned closing arguments crossed an ethical line.

In appealing his case Hernandez’s attorney argued several statements amounted to personal opinion or were attempts to influence emotion rather than relying on evidence.

The unsigned Supreme Court opinion provided three examples:

• During his closing statement O’Brien described the conduct of Hernandez and some of the prosecution’s witnesses as “senseless, the heartlessness, the dis­gusting acts committed” and told the jury it ‘honestly…made him sick” to have to allow them to testify.” The Supreme Court found “this statement…was expressing a personal opinion not based on any evidence; this is clearly prosecutorial misconduct.”
• At other points O’Brien “referred to the other individuals living in the Brownell house as ‘vermin,’ ‘riffraff,’ and ‘lowlife people, so low that they would let a bleeding man lie on the floor’” to die. The court’s opinion called the language “improper” adding “this type of name calling has no place in a criminal prosecution.”
• References to the mother of the dead man and her “heart wrenching decision” to remove her son from life support was, in the opinion of the court “clearly intended to play on the jury’s emotions.”

The opinion did reference other examples that did not rise to the level of misconduct.

The court noted in past cases where a guilty party has claimed misconduct by a prosecutor, the term “cannot be neatly defined” but it should never be allowed to undermine a defendant’s right to a fair trial.

The Hernandez case was apparently a close call as to whether a new trial was justified.

The judges agreed the evidence was overwhelming, so “while the prosecutor made several improper remarks in closing arguments…we cannot say that Hernandez’ right to a fair trial was prejudiced.”

But the opinion also compared O’Brien’s misconduct to another reviewed by the Supreme Court in which “the prosecutor has dodged a reversal,” indicating that was the situation in this case.

In an unusual concurring footnote to the opinion of the full court, Judge Lindsey Miller-Lerman wrote the prosecutor’s improper statements…constituted serious prosecutorial misconduct. She added, “Were it not for the strength of the evidence supporting the con­victions, I would reverse” the verdict against Hernandez.

Judge William Cassell joined her in the concurrence.

Nebraska Attorney General Doug Peterson earlier gave his full support to his top criminal prosecutor. O’Brien has not been publicly involved in any of the high-profile cases he had been working since Chief Justice Mike Heavican made clear his displeasure with the remarks during oral arguments heard for the Hernandez case (see article below).

Later in the day after the opinion was released the attorney general issued the following statement.

“Immediately following oral argument before the Nebraska Supreme Court in this case (State v. Hernandez), Mr. O’Brien, voluntarily filed an ethics inquiry with the Counsel for Discipline. The Attorney General’s Office understands and will abide by the Court’s guidance articulated in today’s opinion regarding prosecutorial conduct.”

There was no further word about O’Brien’s future standing as a prosecutor.

Editor's Note: In an earlier version of this story the jurisdiction of the original trial was identified as Otoe County. The case was, in fact, heard in Richardson County. The writer regrets the error.

ORIGINAL ARTICLE: MARCH 6, 2018

State's Top Prosecutor Volunteers For Review Of Alleged Misconduct.

The head of the Nebraska Attorney General’s Criminal Bureau voluntarily requested a review of his alleged courtroom misconduct.

The announcement came after a surprising set of questions raised by the Nebraska Supreme Court during an appeal hearing of a murder conviction.

At issue are statements by Deputy Attorney General Corey O’Brien during the closing statements in the 2017 murder trial in Richardson County

At one point during oral arguments Chief Justice Mike Heavican asked if the high court should refer the case to the State Counsel for Discipline that investigates ethical violations by attorneys.

It is almost unheard of for Nebraska Supreme Court justices to so publicly question whether the conduct of one of the state’s most visible prosecuting attorneys crossed an ethical line.

In response to an inquiry by NET News following the hearing the office of the Attorney General issued a written statement announcing that after “Mr. O’Brien learned that the Court had questioned if some of his statements possibly violated the Nebraska Rules of Professional Conduct” he had voluntarily “self-reported the incident to the state's Counsel for Discipline. The counsel is the body assigned by the Supreme Court to investigate infractions in the legal community and, according to its website, protects "the public, the profession and our system of justice from the unethical conduct of attorneys."

The statement added "the Attorney General and Mr. O'Brien hold themselves to the highest level of ethical conduct and want to get immediate resolution to the questions raised. It concluded "the Attorney General has full faith in Mr. O'Brien in his professional conduct."

During Tuesday’s appeal of a Richardson County murder conviction some justices openly questioned whether O’Brien’s comments to the jury rose the level of making the trial unfair and worthy of returning to the District Court for a new trial.

Disiderio Hernandez. was convicted of shooting his cousin Joey Debella during the summer of 2015. At the time the men were at a home were drugs were often used and sold. Hernandez admitted to heavy use of methamphetamine at the time of the shooting and during later questioning by police.

At the trial in Richardson County District Court, O’Brien was successful in getting a conviction. As head of the Attorney General’s Criminal Bureau O’Brien frequently assists counties in prosecuting complex cases.

The case is under appeal, in part because of the statements made during closing arguments before the jury, which Hernandez claims amounts to prosecutorial misconduct.

In briefs filed in the appeal, Robert Kortus, the attorney for Hernandez, claims O’Brien inappropriately let loose with personal attacks on the accused and offered his own opinion rather than summarizing evidence.

Kortus wrote the comments were “extensive” and argued “there is a high degree of probability that the remarks unduly influenced the jury.”

While attorneys are given considerable latitude in making their arguments dramatic and persuasive, what is often referred to as “the rough and tumble” of battle in the courtroom, courts tend to limit what is said during closing statements to a summation of the evidence rather than an appeal to emotion.

Among several examples listed by Hernandez in his appeal brief, trial transcripts recorded O’Brien speaking about the accused and witnesses he called:

“I don't know that there is sufficient words in the dictionary or adjectives in the thesaurus to describe the selflessness, the senseless, the heartless, the disgusting acts committed not by just Mr. Hernandez, but, also, by the likes of John Hall, Brett Winters, and Dave McPherson. It, honestly, made me sick and it makes me sick that the State had to present any of those witnesses before you…”

“This is not a summation of the evidence,” Kortus wrote in his brief. “This was a personal attack designed to inflame the passions of the jury against Hernandez.”

In the Supreme Court session today, the Attorney General’s office was represented by Erin Tangeman, who at times struggled to defend her colleague’s words. While arguing O’Brian’s statements did not amount to “intentional misconduct” she conceded the words selected had been “unnecessary and over the top.”

The Supreme Court justices who spoke during the hearing seemed to agree the prosecutor’s approach crossed a line and were more focused on how to address his actions when issuing their opinion.

Justice William Cassel wondered aloud if the court needed to reverse the Hernandez verdict “in order to get the attention of other prosecutors” who might engage in inappropriate theatrics.

A conviction can be reversed or a new trial ordered if an appeals court finds misconduct by the prosecuting attorney. It is a rare occurrence.

Chief Justice Mike Heavican asked Tangeman directly if the court should refer O’Brien for possible disciplinary action.

Tangeman said she preferred not to answer.

In his request for a new trial, Hernandez also objected to his apparent confessions being used as evidence; statements made after binging on methamphetamine the day before.

Hernandez wants the new trial to argue the killing was not pre-meditated and worthy of a longer prison sentence. The Supreme Court decision will be several weeks away.

The Attorney General's full statement, issued Tuesday afternoon:

Today, the Nebraska Attorney General’s Office argued before the Nebraska Supreme Court, an appeal of a first degree murder case that was tried in Richardson County of which Corey O’Brien from the AGO was lead prosecutor. Mr. O’Brien made statements during closing arguments at the conclusion of a five-day, intense murder trial.

Limited statements made during his closing arguments were raised in Court today. Mr. O’Brien learned that the Court had questioned if some of his statements possibly violated the Nebraska Rules of Professional Conduct. When Mr. O’Brien learned of the Court’s concern, he immediately self-reported the incident to the State Counsel for Discipline. The Attorney General and Mr. O'Brien hold themselves to the highest level of ethical conduct and want to get immediate resolution to the questions raised.

The Attorney General has full faith in Mr. O’Brien in his professional conduct.