|© 2000 www.nebraskapen.org||Last Updated: 11/15/2000|
On June 18th, Omaha World Herald columnist David Broder opened a door that few like to hear about with his article, "Death Penalty Study is Landmark." The World Herald also published William F. Buckley Jr.'s article entitled, "Execution Discussion Skirts Morality" on June 20th, and on the 22nd another piece entitled, "Capital Questions." The Lincoln Journal, not to be outdone, published an article the same week entitled, "Death Row Cases Often Overturned."
The articles, though quite stunning, only crack the door on the problems that exist within our judicial system. According to the "Capitol Questions" article, egregiously incompetent defense lawyers, misconduct of prosecutors, often in the form of hiding evidence of innocence, along with faulty instructions to jurors seem to indicate that many Americans have forgotten that one is innocent until proven guilty beyond a reasonable doubt. This is fundamental to our system of justice as set forth in the U.S. Constitution.
If 68% of the nation's and 65% of Nebraska's death row cases have been overturned, (See, "Report: 65% of Nebraska Death Sentences Reversed", by Stephan Buttry, Omaha World Herald, June 20th), what does that say about all the non-death sentence cases, the ones that never got a second chance to be reviewed? Few people know that only death row cases receive a mandatory judicial review. In any other case a review must be requested by the person's attorney and there is no guarantee the court will honor that request.
If nearly two thirds of both Nebraska's and the nation's death row cases have been overturned after a second review, how many other cases would be overturned if given the same review as death row cases? If it is better to let ten guilty men go free than to imprison one innocent man, how many innocent men would go free if their cases were given the same review as death row cases? There are a number of Nebraska cases where a second review would likely lead to a different result.
In the State v. Boppre in Scottsbluff County, Mr. Boppre was convicted of two counts of murder based on the testimony of two informants. The prosecutor had knowledge that their information was tainted and that Boppre was innocent but suppressed this information. Twelve years later Boppre's case is now back in court examining the evidence which had been suppressed.
In State v. Neujahr in York County, Mr. Neujahr was charged with using a deadly weapon; his teeth. When the victim told the prosecutor that it was her own glasses that had cut her nose she was threatened with charges herself if she did not testify as the prosecutor instructed. Since Mr. Neujahr's front teeth are missing, he could not have committed this alleged crime. Yet he was imprisoned for over a year before the Appeals Court reversed his case.
Mr. Neujahr was lucky when compared to the case of State v. Gray in Washington County. Mr. Gray was charged with second degree murder after he pointed a gun at the ground and fired three shots. His intent was to scare a person that had several charges of sexual assault and who, not more than an hour before, had sexually harassed Gray's thirteen-year-old daughter. Mr. Gray's intent backfired. One of the bullets ricocheted, hitting the man. The prosecutor, judge and Gray's own lawyer all knew that the proper charge was manslaughter, which carries a twenty year sentence. Mr. Gray is not a native to Nebraska and has a learning disability, yet he was sentenced to 10 years to life for this unintentional act. When Gray exercised his right to have his case taken back before the same judge, he was given a life sentence, taking away Gray's chance for parole.
In this Douglas County case, Mr. Morrow was charged with second degree murder. In a heated argument, Morrow slapped a person while holding a .45 automatic. The gun went off, firing a bullet into the air. Some twenty feet away a bystander was shot in the chest with a .38 caliber bullet. During Morrow's sentencing for second degree murder the judge stated to Morrow, "You're a known drug dealer." Morrow's charges had nothing to do with dealing drugs. He has returned to court twice for action in his case and his family has spent thousands of dollars in order to have him eventually cleared of this charge.
These cases are only the tip of the iceberg. They do not provide a full realization of the number of other cases where innocent people were wrongly convicted. How could this happen if these same prosecutors, judges, and lawyers followed their own Code of Professional Responsibility. The Ethical Considerations (EC) of their Code would seem to forbid the misconduct and mistakes that wrongly convict the innocent and get convictions overturned.
Prosecutors should not seek convictions for crimes they know did not occur or for more serious crimes than actually occurred. EC 7-13 states, "The responsibility of a public prosecutor differs from that of the usual advocate; his or her duty is to seek justice, not merely convict." Suppressing evidence is forbidden by EC 7-27 which says, "Because it interferes with the proper administration of justice, a lawyer should not suppress evidence that the lawyer or his or her client has a legal obligation to reveal or produce."
Judges should not allow a person's reputation or unfortunate situation to allow a wrongful conviction for a crime greater than was committed; as in Gray and Morrow. The Code of Judicial Conduct, Canon 3B(5) says, "A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status...." EC 7-33 states, "A goal of our legal system is that each party shall have his or her case, criminal or civil, adjudicated by an impartial tribunal...."
The Ethical Considerations should prevent incompetent or unscrupulous defense lawyers. EC 7-1 says, "The duty of a lawyer, both to a client and to the legal system, is to represent the client zealously within the bounds of the law...." EC 9-6 reiterates, "Every lawyer owes a solemn duty to uphold the integrity and honor of his or her profession; to encourage respect for the law and . . .to observe the Code of Professional Responsibility...."
In EC 5-22 you will find,"... if a lawyer is compensated from a source other than a client, the lawyer may feel a sense of responsibility to someone other than the client." Followed by EC 5-23, "A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers...." In this light the use of the public defender raises the question of improprieties when cases are not properly handled. Particularly where the lawyer was not qualified in the field in which he represented the client. Can public defenders provide equal justice when strong pressures on their sense of responsibility create conflicts between their loyalties?
Some people are found guilty, not in a courtroom, but in the media. Reyes v. State, 151 Neb 636, 38 N.W.2d 539 (1949), says, "A conviction should not be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which he finds himself...." The purpose of the media is to spread the news. Yet the media is a business, and to survive it depends on the number of papers it sells or viewers it attracts.
The media exist as a private business thanks to our Constitution, which guarantees freedom of the press, freedom of speech, and freedom of expression. But the media often reaches into the area of constitutional rights of others by affecting the privacy or the rights of an accused to be presumed innocent until proven guilty. The media's acts may not be intentional, but they do occur. Take Sam Sheppard's case in 1954. See, Sheppard v. Maxwell, 231 F.Supp. 37 (1964), and 384 U.S. 333, 86 S.Ct. 1507 (1966). This case was reversed because of the publicity which denied Sheppard a fair trial, but he did ten years in prison before his case was overturned.
A more recent case here in Nebraska is State v. Garza, 241 Neb 934, 492 N.W.2d 32 (1992). This case had to be transferred from Omaha to Scottsbluff due to the publicity it generated. Is it justice when one constitutional right must be trampled to preserve another? According to U.S. v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492 (1993), one constitutional amendment cannot preempt the guarantees of another.This happens because the media is rich and powerful while the accused is often poor and ignorant of the law as well as being despised because of the crime they are accused of. One particular conflict between these rights was seen in the pro's and con's of the Sex Offender List. See the story by the World Herald's Margery Beck entitled, "Sex Offender List Draws Praise, Criticism," July 15th, 2000.
It is also the media's responsibility to ensure that their facts are correct, not merely to sell the news. See, "Court Rejects Killer's Appeal," in the Lincoln Journal and "State High Court Rejects Appeal," Omaha World Herald, both on July 1, 2000. The statement that Mr. Gray shot a woman is not correct. It does nothing but inflame the passion of the readers. It is a common goal of society to protect women and children. When people hear that a woman or child has been harmed at the hands of a grown man, common reasoning automatically leans against the man. This is a reality that should urge caution in getting such facts correct. Surely one of these newspapers should have taken this responsibility seriously and gotten their story correct.
People in the judicial system make mistakes too. And sometimes these "mistakes" are intentional. Here are a few examples of corruption in our judicial system. The Chief Justice of the New Hampshire Supreme Court lied under oath during an investigation and talked to another judge about the handling of the Chief Justice's divorce. He had also allowed other judges, who had been disqualified from hearing certain cases because of conflicts of interest, to comment on impending rulings. Then there was the prosecutor in Florida who shot himself after an investigation was ordered into loans he received, see the Omaha World Herald, July 14, 2000.
What about the police in Philadelphia who had a man on the ground and delivered fifty-nine kicks and blows to his body? See, "Big Questions in Philadelphia," Omaha World Herald, July 15th. In the same paper on July 17th, "Police beating calls for probe," where two white officers in Alabama beat a 54-year-old black man who was handcuffed and face down in the road.
We don't have these problems in Nebraska, do we? Wrong! Take a close look around the state. Judge Bartu of Seward County admitted he violated the Code of Professional Responsibility as adopted by the Court, specifically involving Bartu's direct contact with Debbie Keslar when the Judge knew she was represented by counsel, as well as a civil conspiracy with County Attorney Cherry Jo Petersen and Carol Larson, and violating his own oath as an attorney. See, Seward County Independent, March 1; Omaha World Herald and Lincoln Journal, Feb. 26, 2000.
Platte County District Judge John Whitehead was convicted of check kiting and perjury to gain money for his family farm. Whitehead had been on the bench since 1977. State Senator Kirk Hohenstein, an ex-county attorney from Dakota County, was convicted in 1993 for misappropriation of funds when he used a client's money to remodel his home and buy a hot tub.
Then there is County Attorney Charles Campbell, of York. Campbell was reprimanded after finally admitting to suppressing evidence, not in one case, but in three separate cases! See, State v. Kula, 252 Neb 471, 562 N.W.2d 717 (1997); State v. Neujahr, 248 Neb 965, 540 N.W.2d 566 (1995); and State v. Schmidt, 5 Neb.App. 653, 562 N.W.2d 859 (1997). This misconduct has cost the taxpayers of Nebraska immensely with the Kula case having to be retried and the Schmidt case still in court on appeal.
In nearly every Nebraska case where a judge or lawyer has been investigated it took the power of State Senator Ernie Chambers to get the investigation started. Why was Sen. Chambers the only one who filed complaints against these judges and lawyers when there are so many lawyers who serve as State Senators? The answer is simple. The "Good Ole Boy" system where you scratch my back I'll scratch yours, where judges and lawyers cover for each other. If you really want to see how dirty our system is, try reading "The Franklin Cover-Up," by John DeCamp. It can be ordered for $9.95, plus $3.00 postage from: AWT, Inc., P.O. Box 85461, Lincoln, NE 68501.
What's wrong with our system of justice? Nothing! It's the people that administrate it that are the problem. Over the years corruption, politics and dirt have infiltrated the system. See, "Politics Affects Stances on Death Penalty," in the Omaha World Herald, June 28th, 2000, showing how politics has infected the system all the way up to the U.S. Supreme Court. Prejudice and greed now erode the fabric of our entire society.