The alleged scheme was so audacious it boggled the mind.

Bribe a juror. Get a not-guilty vote. Secure freedom for an accused killer in Omaha.

Even the juror who was targeted by the plot last year was mystified.

“Wait a second,” the 19-year-old juror told The World-Herald in the wake of the scheme. “If they did try to bribe (a juror), doesn’t that pretty much say that they’re guilty?”

A judge agreed that it could.

And so Douglas County District Judge Horacio Wheelock recently ruled that prosecutors will not be allowed to present evidence of a jury-bribery plot in the first-degree murder case against Marcus Short, which is set to begin Monday.

Wheelock’s decision ventures into a muddy, unsettled area of the law.

Few cases nationally have involved prosecutors trying to pair two largely disparate charges — murder and jury tampering.

But Douglas County Attorney Don Kleine’s office — led in this case by Deputy County Attorney Michael Jensen — pushed a judge to allow prosecutors to present the evidence.

They called the alleged attempted bribery an affront to justice and said it was evidence of Short’s guilty conscience in the murder case.

“This is about the integrity of the process,” Kleine said in May when details of the plot emerged. “It makes me very angry to see someone try to compromise the system. To me, it’s so important that we send a message that this is not going to happen.”

One of the ways prosecutors wanted to send that message: by folding into their murder case allegations, and evidence, that Short attempted to bribe a juror in his first trial.

Start with the murder charges: Short and a co-defendant, Preston Pope, were charged in two slayings that stemmed from gang infighting.

Prosecutors allege that Short and Pope, aiming for Garion Johnson, killed Deprecia Neelon instead on Aug. 6, 2015. Two days later, prosecutors say, they found Johnson and killed him.

Sweatshirts, bullets, guns and a fingerprint link Short to the slayings, prosecutors say.

In May, Jensen and fellow prosecutor Sean Lavery had just begun to present evidence when a juror received a strange friend request on Facebook.

The juror accessed the Facebook page of the person making the request and saw a photo of the defendant.

The next day, he contacted court staff, and Judge Wheelock declared a mistrial.

Omaha police launched an investigation and uncovered an ill-conceived plan.

Detectives listened to jailhouse phone calls, interviewed participants and alleged the following:

During jury selection, Short had obtained the names and addresses of three jurors, including the 19-year-old. A friend who was in the courtroom, Davaughn Perkins, was tasked with making contact with the jurors. The proposed deal: $5,000 upfront and $5,000 upon delivery of a not-guilty verdict.

The conspirators later urged people to erase any texts about the plot, ultimately telling one person to get rid of “the bone.” (“Bone” was code for “phone.”)

All of that ended in jury tampering or evidence tampering charges against Short and five others, including Perkins and Short’s cellmate.

The six still are awaiting trial on those charges. If convicted, they would face up to two years in prison.

As lawyers prepared for Short’s retrial this fall, researchers for the judge, prosecutors and defense attorneys could find no cases in Nebraska in which prosecutors combined a jury tampering charge with an underlying murder charge.

A Connecticut judge once allowed prosecutors to present evidence of jury tampering in a murder case. The Connecticut Supreme Court later ruled that jurors should not have heard that evidence.

In turn, Short’s attorney, Douglas County Public Defender Tom Riley, sought to prohibit prosecutors from introducing evidence of the jury tampering allegations.

Riley pointed to state law, which requires charges to be “of the same or similar character ... or the same act or transaction ... or parts of a common scheme or plan.”

Riley noted that charges of murder and tampering are vastly different. Plus, Riley argued, the alleged crimes were separated by more than three years.

In his order, Wheelock agreed that the bribery allegation could make Short look guilty of murder, even if he’s not. “Even innocent people sometimes resort to improper contact with the jury,” Wheelock wrote, citing a federal case.

All of that means that prosecutors will have to wait until after Short’s murder trial to try to hold him accountable for jury tampering. In the meantime, prosecutors are lobbying state senators to increase the maximum penalty for jury tampering from two years to 50 years.

“The Court takes very seriously an attempt to contact or influence a member of the jury and views such alleged actions as threats toward ... the integrity of the judicial system,” Wheelock wrote. “The court in no way condones any such actions that threaten this system.”

But ultimately, Wheelock ruled, the evidence could poison jurors against Short. Wheelock pointed to a former judge’s description of unnecessary, unrelated evidence as comparable to “a dead cat hanging around (the defendant’s neck) — and the lingering odor (fills) the jury room.”

“Once the jury in the upcoming murder trial learns of evidence (of jury tampering), that lingering odor will permeate the jury room and Mr. Short will be precluded from having a fair trial,” Wheelock wrote. “It is with great hesitancy that the Court concludes that evidence of jury tampering in Mr. Short’s first trial would have a devastating effect on the jury in his next trial.”

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Reporter - Courts

Todd Cooper covers courts, lawyers, trials, legal issues, the justice system and government wrongdoing for The World-Herald. Follow him on Twitter @CooperonCourts. Phone: 402-444-1275.

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