Court To Decide Execution Question

Published: Jul. 31, 2002 at 2:00 PM CDT
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The state Supreme Court has agreed to decide if Nebraska can continue sentencing people to death despite a recent U.S. Supreme Court ruling shedding doubt on the practice.

Attorney General Don Stenberg had asked the court to decide the issue on the heels of a June ruling by the U.S. Supreme Court that said juries, not judges, should decide if evidence exists to warrant a death penalty.

The court issued an order this week saying it will hear arguments in the matter in November.

Stenberg said earlier that he hoped the issue would be decided before August, when Douglas County prosecutors are scheduled to be the first in Nebraska to try a capital case since the U.S. Supreme Court ruling.

In Nebraska, judges or juries can determine a defendant's guilt or innocence. But only judges have handed down death sentences since the Legislature decided in the 1970s that there was the potential of bias by juries.

Stenberg maintains that prosecutors need not wait for the Legislature to act before trying death-penalty cases. He said they simply can ask jurors to reach a so-called "special verdict" after reaching a guilty verdict to decide whether the crime merits the death penalty.

Defense lawyers have said Stenberg's suggestion would be contrary to state law, which requires judges to weigh evidence of whether a death sentence is warranted.

Special verdicts are used in civil cases. In a case involving medical malpractice, for example, a jury that decides a group of doctors was negligent in treating a patient could then be asked to reach a special verdict to determine each doctor's liability.

Stenberg said that since state law says a judge or judges must sentence the defendant in capital cases, jurors could be asked whether prosecutors proved any aggravating circumstances, such as whether the murder was especially heinous or depraved, that are required to issue a death sentence.

That would allow the judge to sentence the defendant based on the jury's special verdict.

Some defense lawyers point out that a 1982 decision by the Nebraska Supreme Court said special verdicts have "no application to criminal prosecutions."

Stenberg's request came in the case of Arthur Lee Gales Jr., who was convicted of raping and strangling a 13-year-old girl, Latara Chandler, and drowning her 7-year-old brother, Tramar, in their Omaha home in 2000.

Gales is the only Nebraska death-row inmate who raised issues at trial that were affected by last month's U.S. Supreme Court ruling.

That ruling was a ripple effect from a 2000 ruling in a case called Apprendi v. New Jersey, in which the high court struck down a state law allowing judges to lengthen a prison term if they ruled the offense was a hate crime.