Three Judge Panel in a Nebraska Capital Murder Case Reference Sheet
Statutes governing the death penalty and the three-judge panel, including the Statement of Intent of the legislature, are found at Nebraska Revised Statutes §§ 29-2519 to 29-2524.
The names of the judges appointed to a three-judge panel may be requested through the Clerk of the Nebraska Supreme Court at (402) 471-2830.
A. Summary:
When a defendant has been found guilty of murder in the first degree, there are two possible sentences: life imprisonment or imposition of the death penalty. Regardless of whether a jury or a judge made the finding of guilt, the three-judge panel (the “Panel”) imposes the final sentencing decision. The Panel conducts an evidentiary hearing at which the State and the defendant may adduce evidence on the various factors the Panel must consider before sentencing. Once the Panel has considered the evidence, the relevant statutes, and applicable Nebraska case law, the Panel imposes the defendant’s sentence.
B. The role of the Panel:
After the defendant has been found guilty of first degree[i] murder, the next step is the consideration of statutory aggravating circumstances alleged by the State.[ii] Nebraska law defines nine separate aggravating circumstances.[iii] The death penalty cannot be imposed without the finding of one or more aggravating circumstances.[iv] The determination of the existence of aggravating circumstances is (a) made by the jury that rendered the first degree murder verdict[v], (b) made by a jury impaneled for purposes of the determination of the alleged aggravating circumstances under specific circumstances[vi], or (c) made by a Panel where the defendant waived a jury.[vii] It is the State’s burden to present evidence showing an aggravating circumstance exists beyond a reasonable doubt.[viii]
If the jury does not find an aggravating circumstance, the presiding judge imposes the sentence of life imprisonment. If a jury finds the existence of one or more aggravating circumstance, the presiding judge requests the establishment of a Panel.[ix] The Panel then holds an evidentiary hearing.[x] The evidentiary hearing addresses mitigating factors[xi], excessive sentencing[xii], and disproportionality[xiii]. After considering all the factors and evidence, the Panel determines the sentence to be imposed.
If the defendant waived a jury, then a Panel holds an evidentiary hearing to consider the existence of any alleged aggravating circumstances[xiv]. The Panel also considers the mitigating factors, excessive sentencing, and disproportionality mentioned in the preceding paragraph. Upon completion, the Panel determines the sentence to be imposed.
For the Panel to impose the death penalty, the Panel must unanimously agree.[xv] If they do not agree, they must impose a sentence of life in prison.[xvi]
C. Establishing a Panel:
Upon either (a) a jury verdict and a jury finding that one or more aggravating circumstances exists or (b) the finding of guilt by a judge, the statute requires the appointment of the Panel. The presiding judge makes a request to the Chief Justice for appointment of two additional judges that will then make up the Panel[xvii].
Once the Chief Justice receives the district court’s request, the Chief Justice and the Clerk of the Supreme Court randomly select two additional judges for the Panel from a statewide list of judges.[xviii] The judge who presided over the initial trial also serves as the presiding judge.[xix]
The Chief Justice’s office prepares the Order for Appointment and the order is available to the public via the Clerk of the Supreme Court. Occasionally there are adjustments to judge assignments to the panel[xx].
Generally, hearings of the three judge panels occur in the same location as the original trial.
[vi] Neb. Rev. Stat. § 29-2520(2)(b)(i)-(ii) (A jury impaneled for purposes of the determination of alleged aggravating circumstances will only occur if; “(i) The defendant waived his or her right to a jury at the trial of guilt and either was convicted before a judge or was convicted on a plea of guilty or nolo contendere or (ii) The jury which determined the defendant’s guilt has been discharged.”) See Neb. Rev. Stat §§ 29-2004 to 29-2010 (outlining the process of impaneling juries).
[xi] See Neb. Rev. Stat. § 29-2523(2) (including but not limited to those examples listed). See also State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986) (holding a defendant may offer any evidence of mitigating circumstances, including circumstances not included on the list).
[xii] See State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981) (holding the death sentence is not excessive where the court found four statutory aggravating circumstances present and no mitigating circumstances).
[xiii] See State v. Mata, 275 Neb. 1, 31, 745 N.W.2d 229, 255 (2008) (holding the death penalty is proportional to acts of gratuitous violence on young children).
[xx] Neb. Rev. Stat §29-2521(1)(b) (If the Chief Justice has determined that the presiding judge at the trial of guilt or who accepted the plea is disabled or disqualified after receiving notification of these defects from the clerk of the court in which either the finding of guilty was entered, the Chief Justice shall select three district court judges at random to comprise the panel and name one of those judges as the presiding judge for the purposes of the proceed.)