LINCOLN — A legal issue looms over Nebraska’s death penalty that’s unrelated to the new and untried lethal drug combination state officials unveiled this week.
Defense attorneys say pending challenges of a system that allows judges rather than juries to impose death sentences could impact whether the state ends its streak of 20 years without an execution.
At least three of the 11 men on death row have challenged the state’s procedure, which gives three-judge panels the final say in capital cases. They argue that the U.S. Constitution requires the same jury that decides a defendant’s guilt to also decide his fate.
Their argument has so far proved unsuccessful. A district court judge recently issued an opinion that utterly rejected any argument of constitutional flaws in Nebraska’s system. Attorneys for the inmates will now hope for favorable rulings in state and federal appellate courts.
Nebraska prison officials announced Thursday they have obtained supplies of four drugs they say will allow them to carry out a lethal injection execution. Attorney General Doug Peterson said that after a 60-day notice period, he intends to seek a death warrant for Jose Sandoval, who led three gunmen who stormed a Norfolk bank in 2002 and shot down four bank employees and a customer.
While attention immediately focused on the drugs, which have never been used in combination by another death penalty state, questions about Nebraska’s capital sentencing procedure remain unsettled.
The three death-row inmates who have challenged Nebraska’s system are John Lotter, Marco Torres and Jeffrey Hessler.
They rely on a 2016 case called Hurst v. Florida, in which the U.S. Supreme Court struck down a capital sentencing scheme that allowed judges to impose death sentences. The ruling in the Florida case prompted the Delaware Supreme Court to end the death penalty there because it relied on a similar system.
Although Sandoval has not yet raised a similar challenge, the issue could potentially affect the state’s efforts to execute him, said Rebecca Woodman, a defense lawyer in Lenexa, Kansas, who represents Lotter.
“Those cases could have an impact on Sandoval’s case for sure,” she said.
But a Nebraska judge recently delivered a blow to Lotter’s effort to overturn the death penalty based on the Hurst decision. Saline County District Judge Vicky Johnson, who presided over Lotter’s motion in Richardson County, said Nebraska’s system is substantially different from the one struck down by the Supreme Court.
In Florida, juries provided judges with advisory opinions about sentencing. The key factual determinations regarding punishment were left with the judge.
In Nebraska, juries must decide — during a second penalty phase held right after the trial — whether aggravating factors against a convicted defendant exist. If juries find, beyond a reasonable doubt, that aggravating factors do exist, a three-judge panel considers any mitigating factors in favor of the defendant.
If the aggravating factors outweigh mitigating factors, the judicial panel may then impose a death sentence.
“This makes Nebraska’s sentencing process completely dissimilar from the sentencing scheme utilized in Hurst,” Johnson wrote in an order issued in late September.
The judge went even further in support of Nebraska’s system. She said the Hurst decision may apply to death penalty cases still under direct appeal but not retroactively to convictions like Lotter’s and Sandoval’s, which were long ago affirmed by the Nebraska Supreme Court.
Lotter also failed in an earlier attempt to raise the issue before a federal district court judge.
Woodman declined to comment about the most recent ruling against her client. But Lotter has appealed to the Nebraska Supreme Court, which recently agreed to hear the case.
Lotter, 46, has spent 22 years on death row for the 1993 triple homicide at a farmhouse near Humboldt, Nebraska. The case inspired the award-winning movie “Boys Don’t Cry.”
Torres, 42, was sent to death row for the 2007 execution-style shootings of two Grand Island men. His challenge of Nebraska’s system is part of a habeas corpus motion filed last summer in U.S. District Court in Omaha.
Hessler, 39, was sentenced to die for the rape and murder of a 15-year-old Gering girl in 2003. A check of court records showed no recent activity on his motion challenging the state’s sentencing scheme.