Legislative committee subpoenas Gov. Heineman to testify on prisons

Gov. Dave Heineman responds to legislative subpoena Thursday afternoon (Photo by Fred Knapp, NET News)
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October 16, 2014 - 5:26pm

A legislative committee investigating problems in the way Nebraska runs its prisons has subpoenaed Gov. Dave Heineman to testify before it. Heineman says he welcomes the chance to answer questions.

The vote to subpoena Gov. Heineman was unanimous. It came from the three registered Democrats, three registered Republicans, and one independent on the officially nonpartisan legislative committee. The move follows months of hearings and revelations about problems with Nebraska’s prisons. They include the release of hundreds of prisoners early in defiance of a Nebraska Supreme Court decision, as well as a decision to let some of those prisoners remain at home even after their early release was discovered, in defiance of another Supreme Court decision.

The committee is also looking into the adequacy of mental health treatment for prisoners including Nikko Jenkins. Jenkins was convicted of killing four people in Omaha last year after being released from prison, despite his request to be committed to the Lincoln Regional Center.

Committee Chairman Sen. Steve Lathrop of Omaha acknowledged he knows of no precedent for a legislative committee to subpoena a sitting Nebraska governor. "I think it is an extraordinary step for the Legislature to subpoena the governor. And it is not our intent to politicize this issue, but to pursue the truth to whomever and wherever it takes this committee. And that’s what we’ve done to this point in time," Lathrop said.

Heineman said he welcomes the chance to discuss the Department of Correctional Services with the committee. In a news conference late Thursday afternoon, he suggested that the subpoena was a political ploy. "If the committee had called we would have voluntarily appeared. But they were very intent to issue a subpoena to the governor. They wanted to make this very political," he said.

As he has done consistently as problems with the prison system have emerged, the governor said the fault lies with those within the department. "The Department of Correctional Services, specifically former legal counsel George Green, made a series of significant mistakes and created a huge mess," Heineman said.

Green retired this year after admitting he waited 16 months before reading a Nebraska Supreme Court decision that said Corrections was miscalculating prisoners’ release dates. But he’s also given the committee notes that he was told Heineman and Attorney General Jon Bruning were in the room when decisions were made about an illegal program to let some prisoners who were released early remain at home. Corrections Director Mike Kenney, who Green said told him that, said last week he approved the program on his own.

Heineman said he was unaware of the so-called Temporary Alternative Placement program, or TAP. "I didn’t know anything about the TAP program that he talked about. And as soon as I became aware that weekend, last weekend, I told him to go and meet with the attorney general’s office and find out the best way to proceed," he said.

Heineman also repeated his argument that the Legislature contributed to problems including Jenkins killing spree by not repealing the so called good-time law. That law grants inmates one day off their sentences for every day they spend in prison without creating problems. The Republican governor blasted Lathrop, a Democrat, and Omaha Sen. Bob Krist, a Republican, for defending Omaha Democratic congressional candidate Brad Ashford’s support of the good time law. "The chairman of the legislative committee ought to be impartial and open-minded. And clearly Sen. Lathrop is not. And now we’re going to have a hearing, which – I’ll be there – just a few days before the election," Heineman said.

 

Separately from the subpoena for the governor and prison documents, Sen. Ernie Chambers of Omaha, another committee member, said he’ll ask Lancaster County District Court presiding judge Jodi Nelson for a grand jury to consider possible criminal charges. "I have seen information that leads me to believe that the governor and the attorney general may have participated in activity that led to inappropriate conduct by the director, and there are other matters that have surfaced during our investigation as a legislative committee," Chambers said.

The committee did not subpoena the attorney general. Lathrop said he’s open to doing so, but it might require Heineman to waive attorney-client privilege. Attorney General Jon Bruning could not be reached for comment. But Heineman said "Since June, Attorney General Bruning and I have been working diligently and thoughtfully with the new leadership at the Department to fix the problems."

The apparently unprecedented subpoena may raise constitutional questions. Retired attorney Jim Hewitt, who wrote a history of the Nebraska Supreme Court, said he would advise Heineman to testify voluntarily and ask the committee to withdraw its subpoena, to preserve future governors’ independence. "I think that it is important that he try and preserve the doctrine of separation of powers and say ‘I don’t want you to think that you can subpoena a governor. And so I’m going to argue, and I’m going to go to the court and say don’t let the Legislature do this because I am a separate branch of government,’" Hewitt suggested.

Hewitt says the governor should answer factual questions, but not policy questions about why he did something. Asked on which side of that line a question about whether Heineman approved of an allegedly illegal policy would fall, Hewitt replied "That gets to be a pretty fine line as to whether that’s policy or fact. But I think they could –they could certainly ought to ask him and see what he wants to say."

Heineman said he expects the Attorney General’s office to have a conversation about the terms of his testimony with the committee in the coming days. He is scheduled to testify at the committee’s next public hearing, on Oct. 29.

 

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