No scheduled executions, but courts busy with Nebraska death penalty issues

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October 31, 2019 - 4:52pm

A year has passed since the state of Nebraska executed Cary Dean Moore. That was the first use of lethal injection in the state. Further executions appear to be at a standstill since the state’s attorney general has not advanced any names as the next to die. None-the-less, this week, Nebraska’s Supreme Court heard arguments in three cases tied to the state’s use of the death penalty. Brandon McDermott talked with Bill Kelly of NET News about what happened in court and where the state stands with administering the death penalty.

Brandon McDermott, NET News: It’s been a year since Nebraska last used the lethal injection method for the first time. Is there any sign the state is prepared to carry out an execution?

Bill Kelly, NET News: The short answer is no, there are no executions likely soon. There are 12 men on Nebraska’s death row. Soon, it is likely there will be 13, with the expected addition of Aubrey Trail following his death sentence in Saline County this year. A three-judge panel is currently reviewing the merits of his sentence before it is formalized.

No executions are in the pipeline for a couple of reasons.

First, the Department of Correctional Services cannot get the supplies it needs.

According to the chief of staff Laura Strimple, the agency still does not have the pharmaceuticals to proceed with an execution. In an email exchange, the department said the drugs they purchased before have expired, and “the state has not acquired any new substances,” adding the department is “continuing to pursue procuring the necessary substances.”

McDermott: Are obtaining the drugs the only issue?

Kelly: There is a second factor that is something of a mystery. It’s known that there has been a tremendous amount of turnover among correctional officers. We do not know if the same team of volunteers who took part in the execution of Cary Dean Moore are still on the job or if any of them quit. We don’t know, with the strain on resources, if the experienced team or any new officers have had time for training, considering the demands on their time just for essential security responsibilities.

Regularly scheduled training is part of the death penalty protocols prepared by the department. In our email with the spokesperson for corrections, we asked specifically about that issue, and they would not offer a response. 

And the third issue. There are still appeals underway for the cases most likely to be selected by the attorney general to get the process underway. 

McDermott: Let’s talk about those. There have been appeals and reviews just this week before the Supreme Court. What’s the status? 

Kelly: It’s not uncommon to have appeals underway in both state and federal courts, and there’s legal activity underway from most of those on death row, as is their right.

Just last week, there was movement in one case, the conviction of Raymond Mata of Scotts Bluff County, who killed and dismembered a three-year-old boy in 1999. In an opinion released on Friday, the Supreme Court rejected all three of his arguments to have his death sentence reconsidered. 

In one of his points, Mata claimed when the Legislature repealed the death penalty, death row was, in effect, reverted to a life sentence even after a majority of voters re-implemented capital punishment. The justices didn’t buy it. 

These have been issues raised in other death penalty appeals, and the argument isn’t gaining any traction in the courts. 

There’s another man on death row, Marco Torres, Jr, convicted in Hall County, scheduled to raise some of the same issues before the Supreme Court on Thursday.

McDermott: One of the Supreme Court cases involves a death row inmate who doesn’t want to challenge his death sentence and doesn’t want an attorney. What’s happening there?

Schroeder (right) and attorney Sarah Newell listen as a police interview is entered into evidence in a 2018 hearing. (Pool Photo)

Kelly: This is such a unique case

Patrick Schroeder was already serving a life sentence for murder at the prison in Tecumseh when he murdered his cellmate, Terry Berry. He admits he did it and even did an interview with me telling me what happened. During that conversation, he said, “I had pleaded guilty to it because I’m taking responsibility for my actions, and it was kind of obvious that I’m the one that did it.”

He also did not want any lawyers to interfere with his plans to acquiesce to the state’s plans to sentence him to die.

“As far as the reason for firing my attorneys,” he said during the interview, “the way I want to go about doing it and the way they would have to go about doing it, it’s two different ways.”

Throughout the trial, sentencing, and now in the appeals process, Schroeder makes clear he will do nothing to interfere with his death sentence. 

The state has a process it must follow to carry out an execution, and that includes reviewing the sentence before the Nebraska Supreme Court. Schroeder sent a letter to the justices stating he did not want an attorney to defend him nor did we wish to file any of routine legal briefs. The court responded that Schroeder must at least file a brief acknowledging the case. 

Schroeder reluctantly allowed Sarah Newell of the Commission of Public Advocacy to file the briefs and speak on his behalf during the Supreme Court’s oral arguments on Wednesday. She was the lawyer who had been on stand-by during the trial.

“Mr. Schroeder elected to basically just sit there and let the train hit him,” Newell told the court. 

Even her opponent in this case, the state of Nebraska’s solicitor general, James Smith, acknowledged Newell’s near impossible position and complimented her handling of such difficult circumstances.

The justice’s will review the trial and evidence presented and determine whether Schroeder’s crime rose to the level of a death penalty offense.

McDermott: There were also arguments before the state Supreme Court about whether the prison system could withhold documents related to carrying out Nebraska’s death penalty. What was that about?

Kelly: It’s a pretty basic question. Can the Department of Correctional Services legally withhold documents which might identify the seller of the state’s lethal injection drugs? Are these materials in a special category under state law? 

The appeal to the Supreme Court followed open records requests filed by the Omaha World-Herald, the Lincoln Journal Star and the Nebraska Chapter of the ACLU. They didn’t get what they wanted, so they sued. 

A Lancaster County District Court judge sided with the journalists. Director Scott Frakes continued to fight for his right to withhold the records.

Frakes claims sales receipts, memos and even photos of drug packaging are not public records since they fall under an exempted status under state law. Material that could “reasonably lead” to identifying members of the execution team assembled by the state. During arguments presented by Ryan Post of the Nebraska attorney general’s office, Supreme Court Judge Stephanie Stacey said, “You seem to be suggesting that good investigative journalism is reasonably likely to lead to the information. I’m trying to understand that argument.” 

Post responded even without names appearing on documents related to the acquisition of the drugs, there might be clues reporters could exploit.

“If we hand that key over the question really is if we hand that person the person who receives that key isn’t going to open the door,” Ryan said.

McDermott: And how did the attorneys for the media respond?

Kelly: Media attorney Shawn Renner (see editor’s note) also argued before the court on behalf of the World-Herald and journalism. 

Renner noted corrections officials released the same type of documents years earlier in a previous open records request. In addition, the state legislature had the opportunity to pass a bill protecting the identities of makers and suppliers of lethal injection drugs but decided not to withhold the information from the public. Renner said corrections policy seemed to conflict with the desire of lawmakers for transparency in the process.

An opinion on that case would be likely early next year.

Editor’s Note:  For the sake of full disclosure, attorney Shawn Renner, mentioned in this article, also occasionally provides legal assistance on matters relating to media law for NET News.



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