Project Urges Adoption of Capital Defense Standards in Nebraska

On September 7, 2018, the Judiciary Committee for the Nebraska Unicameral Legislature heard testimony regarding LR406, an interim study to examine statutory adoption of the ABA Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases in Nebraska. Project Director Emily Olson-Gault submitted written testimony and also appeared before the Committee to answer questions from the Committee members. Other witnesses included UMKC Law School Professor Sean O’Brien, Nebraska Commission on Public Advocacy chief counsel Jeff Pickens, and the bill’s sponsor, Senator Adam Morfeld.

Nebraska’s Republican-held legislature overrode a gubernatorial veto to abolish the death penalty in 2015, only to have it reinstated after a 2016 voter referendum that has since been the subject of numerous legal challenges. The Committee acknowledged that Nebraska voters have chosen the death penalty but said that it must be administered fairly. The Committee appeared particularly concerned that Nebraska currently has no capital defense standards in place. Senator Morfeld noted that the Commission on Public Advocacy developed standards in 2002 but that they have never been used. Senator Patty Pansing Brooks expressed clear support for implementation of capital defense guidelines, saying, “Should there be standards? Absolutely. Should we be using the best practices possible? Yes. Should we have the lawyers who are the most prepared? Yes.”

The senators questioned Ms. Olson-Gault at length about the key requirements of the ABA Guidelines and why having an adequately resourced defense team with the proper training and experience is critical to achieving reliable outcomes in capital cases. She discussed the more than 150 people who have been exonerated after being sentenced to death, many only after decades of expensive post-conviction litigation. Such costly errors could be minimized by providing the proper resources from the start of a capital case.

Ms. Olson-Gault’s written testimony described in detail how the Guidelines were created, including the involvement of a broad spectrum of actors from within the criminal justice system and their 2003 approval, without dissent, by the ABA House of Delegates. Since that time, she wrote, the Guidelines have been used in nearly 400 published court opinions, from courts at every level, to assess the performance of defense counsel in capital cases. The Guidelines have also been adopted by regulation or statute, by state and local bar associations, or by court rule in 18 states, including Texas, Kansas, Montana, and—most recently—Idaho.

The Nebraska Legislature is expected to take up the question again when it enters regular session in early 2019.