I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state’s capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:
The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder. He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains. A three-judge panel sentenced the defendant to death. The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury. Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff. We affirm.
Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:
In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution. In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522. Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based…. By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution…..
In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments. In State v. Hessler, we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.