SPECIAL LEGISLATIVE HEARING
LINCOLN — The longtime legal director for Nebraska's prisons didn't read a 2013 Nebraska Supreme Court ruling that essentially said officials had been improperly calculating release dates for hundreds of the state's criminals.
George Green, who advised the Nebraska Department of Correctional Services for more than 25 years, testified Thursday he didn't read any part of it — even after a records clerk alerted Green to her concerns about the ruling.
Instead, he delegated it to a non-attorney: a records administrator.
"I wish I would have (read it)," Green said. "I'm like everyone else. I've got 15 million things to do."
Some eight months later, Green and his staff of attorneys met with records administrators. Green still hadn't read the ruling.
"I followed up with the (records) supervisor. Are we good? Are we following that? He assured me they were. He was quite emphatic."
When did Green finally read
FINGER-POINTING AND FULMINATING the ruling?
"I read (it) after The World-Herald news story broke," Green said.
At that, state senators who had spent all day Thursday railing on Green and prison officials fell silent.
Fifteen seconds passed.
"That's hard to believe," State Sen. Steve Lathrop said.
"You don't need a lawyer; you need a baby sitter," State Sen. Ernie Chambers said.
"Sir, you must have been one busy guy," State Sen. Bob Krist said. "For 18 months you didn't find it in your agenda to read a (Supreme Court) ruling directly affecting your department. Eighteen months? Wow. Hard to believe."
The hard-to-imagine twists just kept coming Thursday in Nebraska's prison breakdown.
The World-Herald investigation prompted state officials to round up early-released prisoners, add more than 2,000 years to the collective sentences of more than 750 prisoners and later to open a criminal investigation into whether crimes were committed.
Krist said Thursday's proceedings reminded him of a moment in "The Wizard of Oz" where the Scarecrow stops and points in several directions.
Prison officials — five of whom testified after receiving a judge's assurance that their words could not be used against them in any possible prosecution
— were pointing up the line as to who they thought was culpable.
"Almost everyone has been claiming plausible deniability," Krist said. "I would describe this in a prior life as CYA."
Indeed, Thursday's unprecedented hearing had current and former prison officials and a retired assistant attorney general scrambling for explanations.
One retired prison worker broke down and cried. A former Corrections attorney mouthed an expletive at a former colleague's testimony. Another prison records administrator sweated profusely.
Meanwhile, state senators fumed. Chambers bellowed at one Corrections official that he was a "fool" to not understand the importance of a Supreme Court ruling.
"Had The World-Herald not broken the story, nothing would have changed," Chambers said. "Everybody now is trying to run for cover. Everybody is trying to shift blame and place responsibility somewhere else.
"I can see why things are in chaos and shambles over there. There's no oversight by the governor. No management by the director of Corrections. We have a situation where no one is responsible for anything."
Gov. Dave Heineman has disagreed that he hasn't held officials accountable. The governor and current director, Mike Kenney, launched a personnel investigation that led Corrections legal director Green and associate counsel Sharon Lindgren to retire rather than be fired.
Another Corrections attorney, Kathy Blum, was suspended for a day without pay. Kyle Poppert was suspended for two weeks without pay. He revealed Thursday that he is serving that suspension by taking two days off a week without pay for the next five weeks.
The reason: Kenney wants him there as a national group studies his department's process for setting release dates.
"I think that's a mockery," Chambers told Poppert. "I'm not going to wear kid gloves with you."
Few senators did with any of the witnesses.
During the marathon hearing
— it began at 9 a.m. and didn't wrap until after 10 p.m. — senators focused on two issues.
• The institutional inertia, and lack of leadership, that led Corrections to ignore the law for two decades.
• The lack of follow-up by the Nebraska Attorney General's Office to ensure that Corrections followed the law.
A 1996 attorney general's opinion — written by Laurie Smith Camp, then an assistant attorney general, now a federal judge — spelled out what state senators intended with mandatory terms for crimes such as drug dealing, being a habitual criminal and eventually gun and sex crimes.
A prisoner must serve the full mandatory term before receiving a day off for every day served under the state's good time law.
"The legislative history... makes clear the fact that the Nebraska Legislature expected inmates who were sentenced for offenses carrying mandatory minimum terms to serve the full mandatory term before being paroled or discharged."
Smith Camp closed by writing: "An inmate who has been sentenced to a mandatory term can neither be paroled nor discharged from custody of the Nebraska Department of Correctional Services prior to serving the full mandatory minimum term."
Based in part on that last line, Corrections officials read some leeway into how they could calculate the sentences.
Then-records administrator Ron Riethmuller said Corrections' primary concern was that inmates serve the mandatory term. It wasn't concerned with the rest of the prisoner's sentence.
So Corrections adopted what a records clerk referred to as a "confusing and somewhat involved" way of calculating release dates. Cut the maximum term in half. Compare it with the mandatory minimum term. Impose the greater of the two sentences.
"The policy I wrote complied with the (attorney general's last paragraph)," Riethmuller testified.
But that method also often left off large chunks of a prisoner's sentence.
That attorney general's opinion was followed by Supreme Court rulings in 2002 and 2013.
Records administrator Poppert said Corrections attorneys suggested that prison administrators could ignore the 2013 ruling because the Nebraska prison system wasn't a named defendant in the ruling.
Poppert testified Thursday that Green and Lindgren came to that conclusion. Green denied it. Lindgren did not.
"As far as I knew, we were waiting for some kind of directive from the Supreme Court," Poppert said. "I was told ... the Supreme Court has not directed us to do anything."
Lindgren said that position didn't come out of left field. Lindgren said it was Corrections' impression that the Attorney General's Office had given the same advice — to ignore a previous ruling on lifetime supervision for sex offenders.
Linda Willard, an assistant attorney general who worked with the Corrections Department for 18 of her 32 years, said she initially didn't think the 2013 ruling "was a serious issue because I thought (Corrections was) doing it the way" the high court had ordered.
She wrote to Jeannene Douglass, a longtime prison records manager in charge of calculating release dates.
Douglass wrote that Corrections had several reasons not to follow the Supreme Court's decision. "It would be a real mess" to recalculate the inmates' release dates. She nodded to the state's chronic prison overcrowding. "It would also serve the Director's desires, as well, to not increase our population any more than we must."
Douglass concluded the email exchanges by copying Green and Poppert:
"I said, and (Willard) supported me, that we would do what is in the inmate's best interest, that being, continue calculating sentences the way we have always done it."
Krist and State Sen. Les Seiler grilled Willard on why she didn't follow up on Douglass' pronouncement that she was going to defy the law.
Willard said she did follow up, in telephone conversations with Green and Lindgren.
However, in an interview with The World-Herald in July, Willard said she couldn't recall whether she had any follow-up conversations.
Lindgren confirmed Thursday that Willard had called her. Green testified that he never talked with Willard.
"I thought that bringing it to the attention of (Corrections') legal department — which was staffed with very competent attorneys, I had my full trust in them — that it would be handled," Willard said. "I think that any competent lawyer would know that the Supreme Court decision controls."
Lathrop questioned whether overcrowding factored into the ignorance of the ruling. Nebraska prisons are 57 percent over capacity.
"Did you appreciate that you wouldn't have to round up (mistakenly released prisoners)?" Lathrop asked. "Overcrowding had to come up."
Poppert said it didn't.
"That wasn't my concern," he said. "I just wanted to do the right thing."
Douglass testified that overcrowding was always on prison officials minds.
Douglass said it came up in various decisions that gave her pause. Among them: Douglass said Poppert ordered records managers to give good-time days off a sentence to a parolee even though the man violated parole. Parole violations are supposed to eliminate such good-time reductions in a sentence. The Nebraska Attorney General's Office later condemned the practice, state senators said.
"I think it was the overall atmosphere of the whole prison," Douglass said. "Everybody was getting pressure, and it just comes on down.
"It's kind of like when you're showing a dog at a dog show — how you feel travels on down to that dog."
Douglass' voice broke — and she dabbed away tears. Lathrop apologized for upsetting her. She said she never received direction on what to do.
"It was quite well known that we had to reduce the population," Douglass said, gathering herself. "I think it was coming from the governor on down. It's just an opinion."
Heineman has said overcrowding has nothing to do with how judges' sentences should be carried out. Poppert said he was never told to usher people out because of overpopulation.
Prison officials want to do the right thing, Poppert said.
"There may be some culture that some people feel they can do the minimum to get by," Poppert said. "I don't see that."
Sen. Seiler said he saw a clear problem in the department. No one went to leaders in the department — or felt comfortable doing so. Then-Corrections Director Bob Houston has said he wasn't told of the ruling.
"There is one thing that struck me funny," Seiler said. "The emails were going in the wrong direction. They were sent to people at the bottom instead of the (top)."
Former records administrator Ron Riethmuller — who retired in 2008 — agreed.
Asked how the department could have ignored the Supreme Court ruling, Riethmuller said: "Government bureaucracy at its finest. The records department had no direction. There was no one to go to. There was no one running that division that had any knowledge of what was going on."
Riethmuller painted a picture of a Corrections Department that was insulated and, at times, insisted on its isolation.
Riethmuller, who doesn't have a law degree, wrote a memo in 2007 to Green suggesting that Corrections might want to calculate release dates in the same way it calculated parole dates. Had it done so, Corrections would have complied with state law.
Riethmuller said he had asked Green whether the department should go to the Attorney General's Office for further advice on how to calculate sentences.
Green said he didn't recall the memo — or any conversations about it.
"From an overall perspective, I was told (by Green) that we did not ask for Attorney General's opinions on anything," Riethmuller testified.
Green denied that — noting that Corrections consulted with the Attorney General's Office all the time.
Riethmuller said he cringed when he saw that the Nebraska Attorney General's Office was communicating with a records clerk about the 2013 ruling.
"If I was the records administrator at that time, I would have complied," Riethmuller said. "I was surprised that she was even involved in it.... She had no authority. It should have went to the records administrator, not Jeannene Douglass."
The institutional inertia was never more evident than in October 2013. Eight months after the Supreme Court ruled, four attorneys and four records managers met to continue wrestling with whether the department should follow the ruling.
"Our current practice is different than that of the court's assumption," wrote Nikki Peterson, a Corrections records manager who summed up the meeting. "We have been performing calculations our current way for years.... We will act when we are specifically told our current way is wrong."
Green said he still hadn't read the ruling at the time of the October meeting.
"I remember there was a meeting but at no time was I told that we were not following the ruling in the (2013) case," Green said.
Several senators — some of them lawyers — said they couldn't believe that none of the four attorneys spoke up at the meeting.
Chambers asked one of the Corrections attorneys, Kathy Blum, if she's embarrassed that a newspaper investigation "was given more consideration ... than a Supreme Court ruling."
"I think embarrassed is a fair word," Blum said.
After leaving the department, Riethmuller said, he called Corrections to try to correct another embarrassment. Riethmuller said he read another World-Herald story on the plight of Johnnie Davis, a parolee who had been released in 2012 after serving decades for the attempted murder of a Lincoln police officer.
Davis was snatched from his job and his family as state officials tried to round up early-released prisoners.
Riethmuller said he immediately noticed that state officials wrongly rounded up Davis. Riethmuller said he made a phone call — and Davis was released after a two-month return stint in prison.
As for the "mess" of incorrect sentences, Riethmuller said it would have taken him just two days to recalculate all 750 incorrect sentences.
That led Chambers to ask Riethmuller if he would return to help right Corrections.
"You couldn't pay me enough," Riethmuller said.
Contact the writer:
State Sen. Ernie Chambers: "How can somebody so dumb have your position? There has to be someone smarter than you." Records administrator Kyle Poppert (right): "Because nobody else wanted the job."
"I read (it) after The World-Herald news story broke."
Former Corrections legal director George Green, on when he read the Supreme Court's 2013 -ruling
"I was concerned about my future when all of this blew up."
Kathy Blum, Corrections associate counsel
"I had a lot of work to do and I thought it was being handled."
Linda Willard, retired assistant attorney general
'You ever see the Scarecrow pointing in different directions in The Wizard of Oz? That's what we've seen people doing today"
State Sen. Bob Krist
"It was quite well known that we had to reduce the (prison) population. I think it was coming from the governor on down. It's just an opinion."
Jeannene Douglass, retired prison records clerk
"The only institution in the state of Nebraska that the good time law could be applied to was the Department of Corrections."
State Sen. Steve Lathrop
"We were trying to get people out early but I didn't think it was tied to mandatory sentencing."
Sharon Lindgren, former Corrections associate counsel
"There is one tiling that struck me funny. The emails were going in the wrong direction. They were sent to people at the bottom instead of the (top)."
State Sen. Les Seiler
"The law was changed years ago so any moron could figure out how to calculate inmate release dates. It was so simple."
Ron Riethmuller, former Corrections records administrator