John F. Wright

This case involved a judicial discipline proceeding against Nebraska County Court Judge Kent E. Florom, who engaged in improper conduct by intervening in a misdemeanor theft case against a softball coach he knew, including discussing the case ex parte with prosecutors and attorneys, offering to pay restitution, suggesting ways to avoid public court appearance, and threatening a school board member with repercussions if action was taken against the coach. The Nebraska Supreme Court decided to remove Judge Florom from office. The court's reasoning centered on the judge's repeated violations of the Code of Judicial Conduct, his disregard for ethical rules despite warnings from others including a fellow judge, and the need to preserve public confidence in the judiciary, as a suspension would be insufficient given the course of misconduct over time.

criminal lawprocedure

The case involved a juvenile adjudicated delinquent and placed on probation in a court-supervised drug treatment program; after she failed drug and alcohol tests and served short detentions as sanctions, the state moved to revoke her probation based on the same violations. The juvenile court dismissed the revocation motion, finding the prior detentions barred further sanctions, and the state appealed to the Court of Appeals. The Nebraska Supreme Court held that because the juvenile had already been placed legally in jeopardy through the delinquency proceedings and detentions, Neb. Rev. Stat. § 43-2,106.01(2)(d) required the state to pursue an exception proceeding in the district court rather than a direct appeal. As the state failed to follow that procedure, the court lacked jurisdiction and dismissed the appeal.

criminal lawprocedurefamily law

The case involved William E. Smith’s appeal of his conviction for possession of a controlled substance with intent to deliver after police discovered pills during a pat-down at a nightclub entrance. Smith argued that the district court should have suppressed the evidence because the search violated the Fourth Amendment. The Nebraska Supreme Court affirmed the conviction, first determining that the search implicated the Fourth Amendment due to the involvement of an off-duty police officer. It then held the search reasonable because Smith had consented by approaching the entrance after seeing the posted notice and observing other patrons being patted down, and the officer’s actions did not exceed the scope of that consent.

criminal lawprocedure

This case involved a juvenile, Dakota M., adjudicated under Neb.Rev.Stat. § 43-247(1) and placed on probation with conditions including school attendance. After a school suspension, the juvenile court added a requirement that future suspensions be served in detention, which Dakota challenged for lack of statutory authority. The Nebraska Supreme Court reversed and vacated the detention order, holding that the juvenile code does not authorize confinement as a condition of probation. The court reasoned that its prior precedent in In re Interest of Dustin S. controlled, that the code's listed dispositions do not permit detention, and that § 29-2270 provides no additional authority for such an order regardless of whether the purpose was protection or punishment.

criminal lawfamily lawprocedure

This case involved a juvenile, Tyler T., who had been adjudicated multiple times under Nebraska's juvenile code and placed on probation with a condition to complete a juvenile drug treatment court program. After he allegedly failed a drug test, the county court sitting as a juvenile court ordered him to serve one day in detention, prompting appeals claiming the sanction violated due process and exceeded statutory authority. The Nebraska Supreme Court reversed and vacated the detention orders in each case, remanding for further proceedings. The court held that meaningful de novo appellate review was impossible because no verbatim record existed of the June 23, 2009 hearing and the resulting order was not part of the court file. It noted that proceedings affecting a juvenile's liberty in problem-solving courts must be on the record to protect due process rights, while also referencing prior precedent that juvenile courts lack authority to impose detention as a probation sanction.

criminal lawfamily lawprocedure

The case involved Lonnie Kocontes suing Sean McQuaid and Edward Bujanowski for libel per se after the defendants sent a letter to the Nebraska Board of Pardons opposing Kocontes' application to pardon his prior felony convictions; the letter contained statements alleging misconduct by Kocontes in Florida legal matters. The district court dismissed the complaint, and the Nebraska Supreme Court affirmed the dismissal. The court held that the Board of Pardons functions as a quasi-judicial body because it investigates facts, weighs evidence, and renders decisions on applications for clemency in a manner analogous to judicial proceedings. As a result, an absolute privilege protects communications made to the Board in connection with its proceedings from defamation claims, even if the statements are alleged to be false or made with malice. This privilege applies to encourage complete and candid submissions without fear of subsequent litigation.

torts & liabilityprocedurecriminal law

Lora L. McKinney was convicted of first-degree murder in 2005 and sentenced to life imprisonment; her direct appeal affirmed the conviction after finding that DNA evidence had been improperly admitted but that the error was harmless. In this postconviction proceeding, McKinney argued that the appellate court erred by considering harmless error sua sponte without the State raising it, applied incorrect standards, wrongly denied her request for DNA samples from other suspects, and that her counsel was ineffective. The district court denied her motion without an evidentiary hearing, concluding the claims were procedurally barred or lacked merit. The Nebraska Supreme Court affirmed, holding that it has authority to address harmless error on its own, that most issues were barred because they could have been raised earlier, and that McKinney failed to show prejudice from any alleged ineffective assistance.

criminal lawprocedure

In State v. Vela, the defendant pled guilty to five counts of first-degree murder and five counts of use of a weapon arising from a 2002 bank robbery in Norfolk, Nebraska, during which he and accomplices killed four employees and one customer. After a jury found multiple statutory aggravating circumstances at an aggravation hearing, the trial court rejected Vela's claim that he was exempt from the death penalty due to mental retardation following an evidentiary hearing. A three-judge sentencing panel then imposed death sentences, which the Nebraska Supreme Court reviewed on appeal for claims including ex post facto violations, jury instructions, access to records in the mental retardation proceeding, victim impact evidence, mitigating factors, and proportionality. The court affirmed the convictions and death sentences, holding that the aggravating circumstances were properly found and outweighed any mitigators, that Vela did not meet the criteria for mental retardation, and that the sentences were proportionate to similar cases.

criminal lawprocedure

Copple Construction brought a declaratory judgment action against Columbia National Insurance Company seeking coverage under a general liability policy for damage caused by a fire that started while repairing a tarp cover on a wastewater lagoon owned by Tyson Fresh Meats. The district court granted summary judgment in favor of Copple Construction, finding coverage, but Columbia appealed. The Nebraska Supreme Court reversed, holding that the policy's business risk exclusion I(A)(2)(j)(5) applied because the damage arose out of operations performed on the tarp, which was considered the entire real property involved rather than a smaller section. The court reasoned that it was not practical to segregate the tarp into smaller parts for the purpose of the exclusion and remanded with directions to enter judgment for Columbia.

propertytorts & liability

This case arose from a 2008 criminal contempt proceeding in Lancaster County District Court against John S. Ways, Jr., who had pled no contest to violating a 2002 court order requiring him to register under Nebraska's Sex Offender Registration Act (SORA) following his 1996 pandering conviction. The district court sentenced Ways to 54 days in jail and a $1,000 fine, and also recalculated his SORA registration period to extend until at least April 9, 2014, based on time excluded for noncompliance and incarceration. Ways appealed only the portion of the order addressing his ongoing SORA obligations. The Nebraska Supreme Court held that the district court lacked authority in the contempt case to address or modify registration requirements stemming from the separate pandering conviction, as those issues were collateral and should have been raised in the original case. The court therefore vacated the SORA recalculation and affirmed the remainder of the sentence.

criminal lawprocedure

In State v. Hudson, Marcus L. Hudson was convicted by a jury of first-degree murder, use of a firearm to commit a felony, and possession of a firearm by a felon after being accused of shooting Verron Jones in retaliation for a drug deal robbery. Hudson appealed, arguing that the evidence was insufficient to support the convictions and that the trial court erred by admitting certain testimony under a hearsay exception. The Nebraska Supreme Court affirmed the convictions, holding that the properly admitted evidence, when viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to find guilt beyond a reasonable doubt. The court further concluded that any error in admitting the disputed testimony was harmless because the verdict would have been the same without it, as multiple witnesses provided direct accounts of Hudson's motive, threats, and actions during the shooting.

criminal lawguns

Mario Alford, while detained awaiting trial on a first-degree murder charge, was involved in a physical altercation with another inmate at the Sarpy County jail. He was convicted of assault by a confined person and of being a habitual criminal. At sentencing, the trial court awarded credit for time served that overlapped with Alford's detention on the murder case. The State appealed, arguing that Neb. Rev. Stat. § 28-932(2) bars such credit unless the custody time is solely attributable to the assault charge, and Alford cross-appealed his conviction and sentence. The Nebraska Supreme Court addressed the statutory interpretation of the credit prohibition, the sufficiency of the evidence, and related procedural and evidentiary issues raised on appeal.

criminal lawprocedure

In State v. Galindo, the defendant appealed his convictions on five counts of first-degree murder, six counts of use of a deadly weapon, robbery, and burglary, along with his death sentences, arising from a 2002 bank robbery in Norfolk, Nebraska, during which Galindo and two accomplices shot and killed four employees and one customer. The Nebraska Supreme Court rejected all of Galindo's assignments of error and affirmed the convictions and death sentences. The court held that a new state law governing capital sentencing procedures could be applied retroactively without violating ex post facto, due process, or bill of attainder protections; that jury selection and instructions complied with constitutional requirements including Enmund/Tison findings; and that evidentiary rulings during the aggravation and sentencing phases, including admission of victim statements and photographs, were proper.

criminal lawprocedure

State v. Banks involved the conviction of Antonio Banks for first-degree murder and use of a firearm to commit a felony, stemming from the August 2005 shooting death of Robert Herndon during a home invasion and robbery in Lincoln, Nebraska. The district court sentenced Banks to life imprisonment plus a consecutive 20- to 30-year term, and he appealed, challenging the amendment of the information to specify a firearm and the denial of his motion to dismiss for insufficient evidence. The Nebraska Supreme Court affirmed the convictions and sentences, holding that the amendment did not prejudice Banks' substantial rights and that witness credibility determinations were for the jury, with the evidence sufficient to support the verdict when viewed in the light most favorable to the State.

criminal lawguns

This case was a judicial disciplinary proceeding against Nebraska County Court Judge Jeffrey L. Marcuzzo, who was charged with violating the Nebraska Code of Judicial Conduct by improperly intervening in a criminal misdemeanor case against his nephew, including attempting to reinstate a plea agreement, arranging a meeting with the nephew's attorney, and discussing the matter with another judge. The Commission on Judicial Qualifications, after a hearing, found by clear and convincing evidence that the judge's actions violated canons requiring judges to uphold judicial integrity, avoid impropriety or the appearance thereof, and perform duties impartially without ex parte communications or undue influence. The Nebraska Supreme Court adopted the Commission's findings that the conduct was prejudicial to the administration of justice and brought the judicial office into disrepute, and imposed a 120-day suspension without pay as discipline.

criminal lawprocedure

In State v. Barranco, the defendant was charged with strangulation and third-degree domestic assault and convicted by a jury after a trial in which the district court overruled his objection to an instruction permitting the jury to separate if deliberations extended beyond 5:00 p.m. Nebraska statute § 29-2022 requires that juries in criminal cases remain sequestered until reaching a verdict or being discharged, a rule that can be waived but is otherwise mandatory. The jury in this case reached its guilty verdict the same morning the case was submitted and never separated. On appeal, the Nebraska Supreme Court affirmed the convictions, holding that the statute was actually followed and that the district court's expressed disagreement with the sequestration requirement did not result in any prejudice or demonstrate bias against the defendant.

criminal lawprocedure

Louis Obad was stopped for speeding in Nebraska, and state troopers seized over $43,000 in cash from his vehicle after a drug dog alert. Obad filed an application in state district court for the return of the property, and the court initially ordered its return, but later vacated that order upon learning the money had been transferred to federal authorities who had initiated forfeiture proceedings. The Nebraska Supreme Court affirmed the vacation of the order and denial of the application. The court reasoned that the federal government had adopted the seizure and gained jurisdiction before the state court's initial order, and no state forfeiture action had been filed, so the property was subject to federal forfeiture and could not be returned by the state court.

criminal lawpropertyfederal powerprocedure

This case consists of two consolidated attorney disciplinary proceedings against Nebraska lawyer David S. Wintroub. The first arose from his 2005 federal felony conviction for structuring cash deposits totaling roughly $67,000 in increments under $10,000 to evade bank reporting requirements under 31 U.S.C. § 5324. The second involved eight additional formal charges concerning his handling of client matters both before and after the resulting temporary suspension. A court-appointed referee found violations of the Code of Professional Responsibility, including rules prohibiting illegal conduct involving moral turpitude and conduct involving dishonesty or deceit; Wintroub excepted to those findings. The Nebraska Supreme Court upheld the violations and imposed discipline.

criminal law

The case concerned attorney discipline proceedings against Harold Titus Swan, a Nebraska-licensed lawyer convicted in federal court of a misdemeanor under 18 U.S.C. § 1018 for drafting an addendum to hedge-to-arrive grain contracts that contained a false statement, arising from his work for a bank client involved in financing margin calls for farmers. Swan was charged with violating Canons 1 and 7 of the Code of Professional Responsibility based on that conviction. The Nebraska Supreme Court held that the conviction constituted clear and convincing evidence of ethical violations and, after considering mitigating factors including the isolated nature of the 13-year-old incident, Swan's cooperation with authorities, and character references, imposed a public reprimand as the appropriate sanction.

criminal lawprocedurebusiness & regulatory

The case involved OMNI Behavioral Health and operators of foster care facilities challenging the Nebraska Foster Care Review Board's statutory authority to conduct warrantless visits and observations of their facilities to check compliance with foster children's needs, arguing that absent agency rules limiting the time, scope, and manner of visits, the practice would violate Fourth and Fourteenth Amendment protections against unreasonable searches. OMNI also alleged that the Board's executive director tortiously interfered with its contract with the state. The Nebraska Supreme Court affirmed the district court's summary judgment for the defendants, concluding that the statute itself provided sufficient authority for such administrative visits in a pervasively regulated industry without needing further rules, drawing on precedents permitting warrantless inspections of closely regulated businesses and welfare-related home visits. The court further held that the interference claim failed as a matter of law due to lack of evidence of wrongful conduct.

civil rightsfamily law