Judge rules Jenkins is 'not intellectually disabled' in death penalty hearing

Published: Nov. 13, 2016 at 8:15 PM CST
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Nikko Jenkins was in Douglas County Court on Monday for the first day of a hearing before a three-judge panel to decide if the convicted killer receives a death sentence or life in prison.

Day one has initially focused on whether Jenkins' IQ should keep him from paying the ultimate price for murdering four people during a 2013 murder spree. After considering testimony a Judge ruled Monday that Jenkins is not intellectually disabled. An argument brought up by Jenkins' defense throughout the trial and now in the death penalty phase of his sentencing.

Jenkins shot and killed Juan Uribe-Pena and Jorge Cajiga-Ruiz on August 11th. Two of Jenkins relatives met the men at a club and then lured them to Spring Lake Park to rob them. Then on August 19th, Jenkins lured Curtis Bradford under the pretense of committing a robbery together. Jenkins executed him instead. Jenkins met Curtis in prison. Two days later Jenkins shot and killed Andrea Kruger, a mother of three, who was driving home from work. Police said Jenkins shot Kruger so he could steal her SUV.

The three-judge panel to determine Jenkins' fate includes Judge Peter Bataillon, who is overseeing the hearing from the bench while judges Terri Harder and Mark Johnson observe from the jury box.

At the start of the hearing, Jenkins' public defender Tom Riley entered into evidence an IQ test given to Nikko in 2003 when he went into the Nebraska prison system. Jenkins' score was 69. Riley argued legal precedent prohibits anyone with a score below 70 from being executed due to their "intellectual disabilities."

Riley then called Kirk Newring to the witness stand. Newring is a psychologist who worked for the Nebraska Department of Corrections. Newing explained the details of specific tests that were regularly administered to inmates to determine their cognitive ability. Newring summarized Jenkins' test scores, saying he scored quite low. He said the results showed Jenkins had an estimated IQ test of 69, which is classified as being on the "high-end of the mental retardation range."

Newring admitted he did not personally interact with Jenkins, nor did he personally administer any of the tests. He also said since Jenkins' IQ test, there have been "notable changes" in IQ testing.

Riley asked Newring about the impact of Jenkins' solitary confinement on his intellectual abilities. Newring said solitary confinement can prevent individuals like Jenkins from improving their cognitive condition. He also said Jenkins' pattern of self-mutilation while in custody is "not inconsistent with what can be seen in developmental disabilities."

During the testimony, Jenkins made several outbursts questioning the validity of the psychologist's testimony. He said it is "hearsay." He was also visibly upset and said the questioning sounded like a competency hearing. Judge Bataillon told Jenkins to calm down and then ordered a 15-minute recess.

As Jenkins stood up to leave for the recess, he called out to his sisters in the courtroom, instructing them to purchase ammunition from a local pawn shop. Jenkins wants to use the ammunition to prove an argument he filed accusing OPD of misconduct and planting evidence. Even though he initially pleaded "no contest" and was convicted, Jenkins now contends he is innocent.

After the recess, Douglas County Attorney Don Kleine cross-examined Newring, asking if the cognitive test taken by Jenkins during his time in the prison system was an actual IQ test. Newring said no, the test was not a formal IQ test, but he maintained it was an accurate predictor of someone's IQ. Kleine also asked Newring about formal IQ tests taken by Jenkins as a child. Newring testified he read reports from those childhood tests and that Jenkins scored above a 70.

Kleine continued his cross-examination, asking Newring about reports in Jenkins' file where corrections employees said Jenkins seemed to display normal intellectual function. Newring said, "I can't rule out an intellectual disability based on the information I have." Newring also said if Jenkins' IQ was tested again today, it's possible Jenkins could fake his results to show an even lower IQ than he really has.

After Newring left the stand, Jenkins had another outburst, asking Judge Bataillon for permission to review crime scene photos during the lunch break. He said he plans to use the photos during sworn testimony about ammunition found at one of the shooting scenes.

Jennifer Cimpl-Bohn was the next witness, called by Kleine. Cimpl-Bohn is a psychologist at the Lincoln Regional Center. She has met with Jenkins and evaluated him several times, starting in 2014. She was part of the team of psychologists who determined Jenkins was competent to stand trial. She also re-evaluated Jenkins last week.

Cimpl-Bohn testified there were concerns about the validity of the most recent cognitive test Jenkins took, which predicted his IQ score to be 69. Cimpl-Bohn also testified that she believes, based on all of her evaluations of Jenkins, he does not have an intellectual disability. She said his previous childhood IQ scores don't fit the definition of a disability. And she said her own interactions with Jenkins showed well-developed verbal and cognitive skills.

During cross-examination, Riley pushed Cimpl-Bohn on the issue of the validity of Jenkins' most recent cognitive test and questioned her conclusion. She stood by her assessment, saying the person who administered the test wrote in a report that there could be problems with the results because Jenkins took the test too quickly. Cimpl-Bohn also said she believes Jenkins has narcissistic personality disorder. She said, "He thinks he is smarter than everyone else."

Jenkins interrupted the cross-examination with another outburst, this time saying he objected to Cimpl-Bohn's testimony. Judge Bataillon told Jenkins the objection was "noted" and then ordered a 45-minute lunch break.

Following the break, the judge ruled Nikko Jenkins is not intellectually disabled and death penalty phase of his sentencing was allowed to proceed.

Near the end of Monday's proceedings, Jenkins' attorney threatened to withdraw from the case. Tom Riley said he is frustrated with all of Jenkins' outbursts and said, "I can't watch him put a noose around his neck because he doesn't know what he's doing.”

The judge was able to calm tensions in the courtroom. Both Kleine and Riley then gave their death penalty opening statements.

A corrections officer from Tecumseh State Prison was called to the stand and testified Jenkins assaulted him while in custody and threatened that "his boys" would unleash a "blood bath" if the officer didn't let him go.

The proceedings will continue Tuesday.

Nebraska is the only state that uses this three-judge panel process. "This is obviously the most serious penalty you can impose on someone, so the feeling was a judge panel would be less biased than a jury," says Creighton law professor Raneta Lawson Mack. "Because it is the ultimate penalty, people are allowed to appeal every issue that is legally present in their particular case and the court has to hear that."

Think of it as a mini-trial that uses judges rather than a jury. The judges will go over the details of the 10-day killing spree in 2013. The prosecutor will have to prove beyond a reasonable doubt that there are aggravating factors present, anything that increases the severity of the crimes. Then the defense will go through their argument, the mitigating factors.

Kruger's mother Teri Roberts planned to be in court for the hearing. "I want the three-judge panel to know what it was like immediately. What her friends had to go through, her family, most importantly what her husband and kids had to go through. I want that initial shock and loss to be known. Part of myself died with Andrea. You can't help but have that happen. But you have to move on."

Judge Bataillon has set aside six days for the death penalty phase. According to court documents, several doctors have been subpoenaed to testify.

Jenkins says he will take the stand as well. The judge's decision must be unanimous in order for Jenkins to be sentenced to death. He would be the 11th person on Nebraska's death row. If all three don't agree on the death sentence, then Jenkins receives life in prison.

It's not known yet when Nebraska will resume executions. Last week, voters approved re-instating the death penalty. But even with a death sentence, Nebraska still needs to work out its means of carrying out the sentence since it's illegal to import the current drugs used in lethal injections. There is also an appeals process that could last years.