In his four decades as a public defender, Tom Riley has watched the mobs outside the state penitentiary in Lincoln cheer as his former client, Harold Lamont Otey, was strapped in the electric chair.

He’s watched another on-again, off-again client sit on death row for 35 years, sometimes asking to die.

He’s watched authorities march toward their hope of executing his current client, Nikko Jenkins, for shooting and killing four Omahans.

So Riley has a grasp of the sobering power of the state.

But in the past 15 years, Riley has seen something else: a slow withering of zeal for the death penalty in a key battleground, the courtroom.

Riley and other longtime legal observers said they are only mildly surprised that the Legislature has come remarkably close to repealing the death penalty.

The death penalty has been dying a slow death in Nebraska courts for years, said Riley, who was one of Otey’s trial attorneys, and James Mowbray, who was Otey’s appellate attorney and heads the Nebraska Public Advocacy Commission.

Some of its decline has been procedural, the product of precedent, Riley and Mowbray said. In a landmark 2002 ruling, the U.S. Supreme Court said prosecutors had to declare at the outset whether they would seek the death penalty. No more tacking on the death penalty just before or after trial. The high court also added a layer to the process, ruling that juries had to decide whether aggravating factors existed to merit the death penalty.

Then in 2008, the Nebraska Supreme Court ruled the electric chair unconstitutional — and Nebraska switched to the slightly less controversial three-drug lethal injection cocktail.

The change didn’t pump any momentum into the capital punishment cause. In honest moments before hearings, Riley said, prosecutors, even judges, privately decried the death penalty as an exercise in futility, a dinosaur without any roar.

Prosecutors began to grumble about the extensive exercise of going through death penalty hearings — often as the state had no means to carry out an execution. Even judges griped as the state combed Europe and India, looking for a supplier to provide a key death drug that U.S. pharmacies would not.

Soon, those private grumbles bubbled to the surface. Retired Sarpy County District Judge Ronald Reagan, who presided over the case of child killer John Joubert, testified against the death penalty at a legislative hearing in March, saying most current judges would speak out against the death penalty if they were at liberty to do so.

Even as Douglas County Attorney Don Kleine testified in support of capital punishment, he said: “The (death penalty) process as set out (in court) is a good process. (But) I do have reservations. ... I am in the trenches. ... I go before juries right now and I go before three-judge panels. And, de facto, we don’t have a death penalty here because the state can’t ... get its act together as far as the penalty.”

So Riley, Mowbray and others got the sense that the death penalty was on its last legs.

Still prosecutors such as Kleine pressed on with cases, securing the death penalty in what courthouse types called no-brainers:

» The 2001 conviction of Arthur Lee Gales for strangling and raping 13-year-old Latara Chandler and strangling 7-year-old Tramar Chandler, who witnessed Gale’s attacks on their mother.

» The 2007 conviction of Roy Ellis for sexually assaulting and killing 12-year-old Amber Harris after kidnapping her when she got off a school bus.

Then came another expected no-brainer. It would make courthouse attorneys rethink everything about the death penalty.

Jose Oliveira-Coutinho killed his Brazilian boss, Vanderlei Szepanik, in Omaha in December 2009. He then ordered the hanging deaths of those who witnessed the crime — the boss’s wife, Jaqueline, and 7-year-old son, Christopher, who were then dumped in the Missouri River.

Oliveira was sentenced not to death but to life in prison.

Riley said that ruling, known in Douglas County as “the Brazilians’ case,” sent shockwaves, crumbling the concept of proportionality: that similar crimes receive similar penalties.

The question of justice, or proportionality, leads attorneys to engage in a sort of grisly grading system, comparing one killing to another.

“It’s a ghoulish exercise,” Riley said.

With the Brazilians’ case, it becomes an exercise in futility, Riley said.

Consider: Gales and Ellis both killed children to cover up crimes. Oliveira killed a child and his mother to cover up a crime. Yet Oliveira didn’t get the death penalty.

“What it showed more than anything is, the way we separate life-and-death cases is far too arbitrary,” Riley said.

The reason Oliveira didn’t get the death penalty? One member of the three-judge sentencing panel didn’t believe the state’s evidence, and a jury’s conclusion, that Oliveira was the ringleader of the trio who committed the crimes.

That judge’s dissenting view spared Oliveira.

That case, argued by defense attorneys Horacio Wheelock and Todd Lancaster, changed the landscape of all future death penalty arguments, Riley said.

Put simply, Riley said, any competent attorney would argue: If Oliveira didn’t get the death penalty, how in the world can you sentence my client to death?

Madison County Attorney Joe Smith, a death penalty proponent, said one ruling isn’t a death knell for the death penalty. At most, he said, it proved how thorough the process is and how much it weighs in favor of the defendant.

Smith, who prosecuted three death row inmates who killed five people at a Norfolk bank, said he can hardly believe that the Legislature might be on the verge of eradicating executions.

“It’s tremendously hard for prosecutors to secure the death penalty,” Smith said. “We use it sparingly in Nebraska — and the system is set up to protect the defendant.

“A lot of people on both sides of the issue are frustrated that we haven’t had an execution in a long time. But it’s the Legislature where the holdup is. Not with the people. Not with the courts.”

Mowbray and Riley, who have represented dozens of killers, have witnessed two other death penalty pitfalls:

» It has created celebrities out of killers, disgusting victims’ families. “You can name most, if not all, of the guys on death row,” Riley said. “But name one person who is doing a life sentence from a crime 35 years ago? You can’t do it. After their appeals are over, they sink into oblivion.”

» It has created inefficiency. The death penalty phase for Nikko Jenkins originally was scheduled to begin last summer. Instead, it has been stuck in neutral for nearly a year after a judge declared Jenkins incompetent, then competent, to understand the proceedings.

Nowhere is the churn more evident than in the case of Carey Dean Moore. Moore was sentenced to death in 1980 for the 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland.

Since then, the procedural history of Moore’s court case reads like a manual on inefficiency. Sentenced to death. Sentence stayed. Then reinstated. Then stayed. Then reinstated. Then stayed. Then reinstated. Then stayed. Then reinstated. Then stayed. (Six times, in all.)

At least twice, Moore wrote to the court saying that he wanted to be killed. Then he changed his mind.

Thirty-five years later, he’s still awaiting execution.

Few will celebrate if and when the death penalty dies, Riley and Mowbray said. But even fewer in the court system will mourn its passing, they say.

“I think people are running out of energy — it just seems like we have better things to be doing,” Mowbray said. “It’s not something to celebrate or to curse. It’s just time.”

Contact the writer: 402-444-1275, todd.cooper@owh.com

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