LINCOLN — A second front emerged this week in the legal fight over the execution of mass killer Jose Sandoval, and yet another could be on the way.
Omaha defense lawyer Stu Dornan argued in a new court filing that Sandoval was unconstitutionally sentenced to death a second time when voters restored capital punishment last year at the ballot box. Dornan filed a post-conviction motion this week in Madison County District Court that could delay the setting of an execution date for Sandoval.
“The state’s recent legislative repeal of the death penalty, followed by reinstatement through referendum, is an extraordinary circumstance raising constitutional issues that must be addressed,” Dornan said Thursday.
Madison County Attorney Joe Smith said he hopes that a judge can quickly reach a decision on the motion. He disagreed with the argument that the death penalty repeal by the Nebraska Legislature reduced the sentences of Sandoval or his fellow death row inmates.
“With death penalty cases, there are frequently a lot of motions filed for the purposes of delay. I don’t know that this is any different,” Smith said Thursday.
A similar post-conviction action was filed this week on behalf of death row inmate Erick Vela, who, along with Sandoval and Jorge Galindo, participated in the 2002 shooting deaths of five people inside a Norfolk bank. All three men were sentenced to death for the killings, although Sandoval was the admitted leader of the group.
After he was sent to death row, Sandoval pleaded guilty to two additional murders in the months leading up to the bank slayings.
Sandoval’s post-conviction motion marks the first time since 2011 that he has formally contested his death sentence. And it comes the same week that the ACLU of Nebraska filed a lawsuit on behalf of all 11 death row inmates, also challenging the validity of last year’s referendum vote that overturned the Legislature’s 2015 repeal of capital punishment.
Dornan was recently asked by the federal public defender and the ACLU to represent Sandoval. The onetime Douglas County attorney said he has worked on post-conviction litigation in homicide cases but none that required defending a condemned inmate.
Dornan said he will draw on the advice of out-of-state lawyers who have expertise on the death penalty in both state and federal courts. He declined to name the attorneys until appropriate motions are filed.
But he also indicated that the lawyers will probably challenge the untried four-drug lethal injection combination that the state intends to use for the first Nebraska execution in 20 years.
Prison officials notified Sandoval on Nov. 9 that they had obtained the drugs, the first step required to move toward a lethal injection. The Attorney General’s Office must now wait at least 60 days before asking the Nebraska Supreme Court to issue a death warrant.
The Constitution requires the judicial branch to decide individual punishments for crimes, not the legislative branch, Sandoval’s motion said.
When the Nebraska Legislature repealed the death penalty in 2015, it converted the sentences of Sandoval and the nine others then on death row to life in prison without parole, Sandoval’s motion argued. When voters restored capital punishment, they took a legislative action that essentially resentenced the inmates to death.
Dornan said Nebraska is probably the first state where a legislative repeal of the death penalty was overturned by voters. That unusual circumstance has created questions surrounding the death penalty that have not been addressed by the courts, he said.
Allowing voters to impose a death sentence on Sandoval after lawmakers had abolished capital punishment violates the Eight Amendment protection from cruel and unusual punishment, Dornan said.
“The state has ping-ponged Mr. Sandoval from death to life and to death again,” the motion stated. “His individual fate became hostage to an ongoing political contest between the Legislature, the governor and the voters.”
Smith, the prosecutor who worked to convict Sandoval and his co-defendants, said the repeal law passed by the Legislature in May 2015 was put on hold after almost 144,000 valid signatures were submitted by death penalty supporters five months later. Those signatures prompted the 2016 vote that overturned the repeal.
In a related development this week, the ACLU of Nebraska filed a lawsuit on behalf of the 11 men currently on death row. Among other arguments, the lawsuit alleges that Gov. Pete Ricketts overstepped the constitutional limits of his office by helping to lead and fund the pro-death-penalty petition drive.
A spokesman for the governor called the lawsuit a “frivolous” attempt by the ACLU to overturn the will of Nebraskans who voted to keep the death penalty.