The Impact -- How much will it hurt?


How much will it hurt when Neb.Rev.Stat. 28-304, the 2nd degree murder statute, is finally declared unconstitutional?

When the Myers decision came down it appeared that all those convicted of 2nd degree murder would be entitled to new trials. Since there are (or were) some 130 people in that situation it looked like it was going to be a costly problem to fix. Things looked bad all around, or at least that is the way the press presented the problem to the public. When the statute is finally declared unconstitutional there will be some good news and some bad news.

Some good news and some bad news

First the good news. Not everyone convicted of 2nd degree murder will have to be retried. Particularly, those persons who pled guilty to 2nd degree murder can simply have their convictions reduced to manslaughter and be resentenced under the manslaughter statute. That will reduce many "life" sentences to a maximum of 20 years. A number of people in this category have already done more than 10 years so, assuming they have not lost any "good-time" credits, they would be released from custody. Yes, a bunch of people the attorney general wants to call "bad guys" will get out of prison.

People who went to trial before Myers and were found guilty of 2nd degree murder would, at the very least, be entitled to having those convictions reduced to manslaughter and resentenced as those above. There might be some people who would appeal the decision to reduce their convictions to manslaughter. Some of these people might want to have a retrial on the charge of manslaughter. But these people would have to show the Courts that they were prejudiced in the finding of guilt in their last trial by the erroneous 2nd degree murder charge. If they can't show prejudice it might be a "harmless error" to just reduce their convictions to manslaughter.

Even better news

The people who were convicted of manslaughter in the first place would not benefit from this ruling. Their convictions and sentences would remain in effect. People who pled guilty to 1st degree murder would probably not be affected by this ruling. They would have to show a very specific set of facts were available to them at the time they pled guilty, not just "had I known 2nd degree murder was unconstitutional I wouldn't have pled guilty." Most of those pleading guilty to 1st degree murder are based upon plea bargains where they received some other benefit for pleading guilty to 1st degree murder, such as avoiding the death penalty. As long as that benefit was still in place it would be difficult to withdraw their guilty plea.

And even worse

However, and here comes the really bad news, those people who went to trial on 1st degree murder charges and received a 2nd degree murder jury instruction would also have their convictions undone. Assuming these convictions were before Myers all these people could be retried. But, in the retrials the worst the State could charge them with is manslaughter.

This is because of Neb.Rev.Stat. §29-2027. This statute was first adopted back in 1873. The statute says, "In all trials for murder the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or manslaughter;...." What this means is that the jury has to be instructed onthe lesser offense of 2nd degree murder and manslaughter if the judge determines that the evidence warrants them. If the Court fails to give an instruction for 2nd degree murder when it was required it is a reversible error, even if the defendant was convicted of the greater charge of 1st degree murder. State v. Payne, 205 Neb 522, 289 N.W.2d 173 (1980); State v. Morrow, 237 Neb 653, 467 N.W.2d 63 (1991). This statute is mandatory, State v. Bourne, 116 Neb 141, 216 N.W. 173 (1927).

A person who was convicted of 1st degree murder but got an instruction for 2nd degree murder is in a unique position. First, there certainly was sufficient evidence for the judge to give the instruction for 2nd degree murder, or at least an instruction for a lesser crime than 1st degree murder. Second, but 2nd degree murder didn't actually exist because an unconstitutional statute is null and void since it was enacted, so therefore he did not get an instruction for a crime called 2nd degree murder (because it didn't exist). Third, you can't retry him for 1st degree murder because you STILL don't have a 2nd degree murder statute which he is entitled to a mandatory instruction on. Ouch!

That means all the people who went to trial on 1st degree charges and got a 2nd degree instruction, including those people on death row, will have their convictions reduced to manslaughter. Imagine the press coverage for that! It is possible that someone would walk from death row right out the front gate of the penitentiary, a free man. If they had served enough years the State may not be able to stop them, legally. They would certainly be eligible for parole.

Now you know why the Nebraska Supreme Court doesn't want to find 28-304 unconstitutional. In order to keep one bad guy locked up forever these people, who have sworn an oath to uphold the Constitution of the United States, have turned the Constitution into a tooth-fairy story for adults.

What about all those retrials?

What about all those people who took advantage of State v. Myers and went back and had a retrial with the words "with malice" inserted into the 2nd degree murder jury instruction? Inserting those words into the instruction doesn't make the statute suddenly constitutional. Only the legislature can reenact another 2nd degree murder statute. However, those people who went back and were found guilty of a modified 2nd degree murder that included the element of "malice" now have a new argument to make. As before, if they were charged with 1st degree murder but found guilty of 2nd they were acquitted of 1st degree murder and can never be tried again on that 1st degree charge. The 2nd degree conviction is still void without a valid 2nd degree murder statute. But they can now argue that they were acquitted of manslaughter too because the jury found the element of "malice." Remember, one element of manslaughter is that the killing was done "without malice." How can this crime be manslaughter when a jury has decided that "malice" existed. Oops! This means that a defendant in this situation walks away from prison a free man.

Who is to blame?

Whose fault is all this mess? I think it is obvious that the Courts should have dealt with this problem 20 years ago. After Myers made the problem public knowledge the Courts had a duty to uphold the Constitution and let the chips fall where they may. The Courts should have at least informed the Legislature, publicly or privately, to fix and reenact the 2nd degree murder statute. Until the Legislature does that, this problem won't go away, it will only continue to get worse.

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