Nebraska's "Malice" Problem

©1999, 2000, 2001, 2002 Last Updated: 08/01/02

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This article makes the argument that Nebraska's "Malice" problem was an attempt to cover up the fact that Nebraska's 2nd degree murder statute has been in violation of the Constitution of the United States since it was changed by the Legislature in 1977. The article references many case decisions by the Nebraska and U.S. Supreme Court, as well as other courts. If you want to skip most of the "legalese" then start off by reading the Introduction, The Real Problem(s), and The Impact, listed below.


What is the Problem?

In January 1994, the Nebraska Supreme Court decided that Nebraska's second degree murder convictions weren't any good unless the jury had been told that the State had to prove "malice". Since that time we have been bombarded in the media with stories about what a terrible thing this is and that a whole bunch of bad guys are going to either get out of prison or will have to be retried all over again.

Hundreds of newspaper articles and television news stories have followed this event over the last 5 years. Most of these stories tell us something about the people involved but very few of them explain why this is all happening. Why, for instance, after 15 years was the second degree murder statute suddenly being questioned? Sure, we've all heard its "malice" that is the problem; but what is that? And is it some loophole or is there some bigger problem being covered up by a good story? How is an ordinary person (meaning not a lawyer) supposed to know what is going on and understand this mess.

The Law is Not Complicated

Most people think the law is a complicated and detailed subject and yet they have some idea of the most basic and fundamental principles. For example, most people know you are (supposed to be) presumed innocent until proven guilty, that you have a right to a speedy and public trial, and that the State has to prove you are guilty beyond a reasonable doubt, and so on. Most people would agree, without knowing the U. S. Supreme Court has ruled, that statutes that define crimes must be written so that ordinary people can understand them and so they give people a fair warning about what conduct is illegal. Criminal Statutes must include the criteria to determine which crime has been committed so that police, prosecutors, judges, and juries can't enforce the laws arbitrarily or erratically. The Nebraska Supreme Court has called this requirement "adequate standards to prevent arbitrary enforcement."

The Problem Begins

In 1977 the Nebraska Legislature changed the second degree murder statute. They removed the word "maliciously" from the definition of second degree murder. From that time when the new statute took effect "malice" was not required for second degree murder. So why, in 1994, did the Nebraska Supreme Court decide that "malice" is necessary?

The second degree murder statute says, "A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation." The statute that defines manslaughter reads: "A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act." The second degree murder statute says nothing about malice.

An Arbitrary Choice Between Two Crimes

Consider a case where a killing is done without malice but intentionally and upon a sudden quarrel. Which crime is it? It could be second degree because it is intentional without premeditation. Second degree doesn't say anything about malice or a sudden quarrel. But it can also be manslaughter because it is without malice and upon a sudden quarrel. (At least until 1994 manslaughter could be intentional too. In 1994 the Nebraska Supreme Court tried to take "intent" out of the manslaughter statute too.) So how do you tell them apart? Without "malice" in second degree the two crimes overlap and the 2nd degree murder statute doesn't contain a standard to prevent an arbitrary choice between them.

You Didn't Read That in the Newspapers

That is a problem. That is not exactly how the newspapers and the attorney general have been explaining it to you; and certainly it is not the explanation the Court is giving either. All these groups seem to be avoiding the real problem because it is even worse than the one they have been telling you about. But hopefully the information we have collected here will show you that both sides of the Court are only explaining half the problem. And both sides are half right in their reasoning too. Unfortunately that is not good enough and what both sides are trying to do is avoid having to face an even bigger problem.

What This Article Will Show You

In this article we will show you that the real problem is that Nebraska's 2nd degree murder statute is unconstitutionally vague because it doesn't contain a standard of guilt sufficient to prevent the arbitrary and erratic enforcement of that statute. But we also want to show you where you can go to learn for yourself what is going on with this "malice" problem. We will start off by showing you that the Court first saw the real problem over a year before the January 1994 decision on "malice". The problem popped up in May 1992 in the case State v. Cave. Rather than biting the bullet the Court dodged it and didn't answer the real question presented to it. Obviously the problem was still being tossed around by the Court because nobody expected it to show up in State v. Myers at the beginning of 1994. Myers, as you will see, is really the Court's first attempt to cover up the real problem and avoid a much bigger one.

Understanding Case Citations

In that last paragraph I cited two cases, State v. Cave and State v. Myers. Throughout this web site you will see references to many court decisions, or cases. They are easily spotted because the name of the case is usually italicized and then followed by a cryptic bunch of numbers. For example:

State v. Myers, 244 Neb 905, 510 N.W.2d 58(1994)

State v. Myers is the name of the case. It is the State of Nebraska versus Darren Myers, the defendant. This case is printed in two different sets of books. The first set of books listed are the Nebraska Reports, that is the Neb part. The case can be found in volume 244 and the case starts on page 905. That is generally how the case citations are formed; volume number, book set name, and page number. So, 244 Neb 905 means volume 244 of the Nebraska Reports on page 905. That is the simple part, the tricky part is learning all the abbreviations for the different sets of books. Like what does N.W.2d mean? This is the Northwestern Reporter's second edition series. The 2d means second edition. A 3d would mean Third edition. So 510 N.W.2d 58 means, volume 510 of the Northwestern Reporter Second Edition on page 58.

The Nebraska Reports contain all the decisions written by the Nebraska Supreme Court only. These books don't contain the decisions of the Court of Appeals; they can be found in Neb. App. ,The Nebraska Appellate Reports. The Northwestern Reporter series is published by West Publishing and contains both the Nebraska Supreme Court and the Court of Appeals decisions as well as all the decisions from Iowa, Michigan, Minnesota, North and South Dakota, and Wisconsin too. In fact, West Publishing puts out a whole collection of book sets that contain all the states in the country. You can usually spot them by their geographical sounding names; Northwestern Reporter N.W., Southern Reporter So., Atlantic Reporter A., Pacific Reporter P., etc. Of course all of these can be followed by 2d or 3d, if there isn't a 2d or 3d at all then it is the first edition.

U.S. Supreme Court Cases

Cases from the U.S. Supreme Court can get cited in three different sets of books (or more). For example:

Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)

Like always the name comes first followed by the citations. You can find this case in volume 421 of the United States Reports on page 684. This is the set of books published by the U.S. Supreme Court itself. Volume 95 of the Supreme Court Reporter on page 1881, is West Publishing's book set. Volume 44 of the Lawyer's Editions, yes , that's the second edition, on page 508. The Lawyers Edition contains not only the case but some discussion of its meaning. Sometimes you will see a U.S. Supreme Court case cited as, __U.S.__. This means that the case was in the U.S. Supreme Court but the decision had not yet been published in the United States Reports when this was printed. West Publishing publishes their Supreme Court Reporter faster than the U.S. Supreme Court publishes their own cases.

Other Court Decisions

Some other common abbreviations you may see are F., F.2d, F.3d, the Federal Reporter contains all the decisions of the Federal Courts of Appeal. F.Supp. is the Federal Supplement and contains the decisions of the Federal District Courts from across the entire country, including the Federal District Court here in Lincoln.

Finding Court Decisions for Yourself

It is a lot easier to find cases than most people think. Once you see the books you will see what I mean. All these books have the volume numbers printed in large numbers on the spine. They are usually all shelved in sequence so it is easy to find the volume you want.

Most university law libraries, including the University of Nebraska Law Library are open to the public. It might take you a while to find your way around because there are so many different sets of books. Just ask one of the law librarians where you can find the set of books you are looking for. If you wanted to find State v. Myers just ask where the Nebraska Reports are. When you find those shelves you will see all the volume numbers on the spine. Find volume 244, pull it out and turn to page 905 and there you will find State v. Myers. It's easier than you think.

Try it.

The University of Nebraska's Law Library is located on the East Campus north of Holdrege Street at about 36th Street. Their phone number is (402) 472 3547. Call and ask them about their evening and weekend hours that are open to the public. You can also check the websites for Nolo Press and the Jurisdictionary listed in our Other Resources page to learn more about how to find the law and understanding case decisions.

Understanding Case Citations | Introduction | Malice Index | Home Page