State's top prosecutor volunteers for review of alleged misconduct.

Nebraska Supreme Court Chambers (File Photo)
March 6, 2018 - 3:21pm

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.

Corey O'Brien, chief of the Criminal Bureau, Nebraska Attorney General. (Photo: NET News)

Disiderio Hernandez, convicted of 2015 Fall City murder. (Richardson Co. Sheriff)

Watch the Supreme Court Hearing

CLICK HERE to watch the Supreme Court hear arguments in State v. Hernandez. Case opens at 23:00 into the video.


Read the Briefs

Click here to read the brief filed on behalf of Hernandez

Click here to read the brief in opposition from the Nebraska Attorney General.

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.



blog comments powered by Disqus