TECUMSEH, Neb. — In separate, back-to-back hearings Tuesday, the Nebraska Attorney General's office swapped sides of the counsel table, first defending the state against a civil lawsuit filed by a dead inmate's family, then prosecuting an inmate who killed his cellmate in the other.
The deadly incidents at the Tecumseh State Correctional Institution each drew increased scrutiny by civil rights defenders, who earlier this month filed a federal lawsuit about overcrowding, and by lawmakers, who have been looking for answers to fix a prison system beset by problems.
But Tuesday's hearings dealt with two specific inmates: Patrick Schroeder and Shon Collins.
In the first case, civil attorneys with the Attorney General's office defended the state against a lawsuit filed by Collins' family for his killing during a 2015 riot at the prison north of town.
"I think we all can admit what had happened in this case is tragic and horrible," Assistant Attorney General Stephanie Caldwell said of his death. "But what we are looking at is the complaint that was filed in this case and how it was plead."
She asked District Judge Vicky Johnson to dismiss the lawsuit, which alleged among other things that the state hadn't properly trained or staffed the prison. Caldwell argued that the suit didn't allege enough to go forward and that, even if it did, that the state has immunity from such cases.
If there is a question as to case law, she said, "maybe let the appellate court decide this area before we proceed forward on what ... will be a pretty huge case to litigate."
Attorney Abby Osborn, who represents Shon Collins' mother, Susan Collins, pointed out the state made essentially the same argument in a similar case in Lancaster County, and that case survived it. She argued this one should, too.
Osborn said the state has an increased duty to protect inmates in protective custody, as Collins was when the riot broke out May 10, 2015. The suit alleges prison staff failed to protect him from other inmates during the 11-hour riot.
He and Donald Peacock, both serving time for child sex assaults, died of blunt force trauma to their heads.
Johnson will rule on the motion after the attorneys file briefs in that case.
In the second, two other attorneys with the Attorney General's office sat as special prosecutors seeking the death penalty in the criminal case against Schroeder, a lifer who pleaded guilty to first-degree murder for killing Terry Berry, his cellmate, on April 15.
In an eight-minute hearing, Schroeder confirmed that he wanted to waive his right to have a jury hear the evidence to decide whether he could get the death penalty for what he did.
Johnson, the judge, said she will be part of a three-judge panel that will find if Schroeder has committed a prior murder or has a substantial history of serious assaults, as the state alleges.
He already is serving a life sentence for killing a 75-year-old Pawnee City farmer in 2006.
The panel also will weigh mitigating circumstances to determine if he should be put to death for it.
A hearing date will be set after the Nebraska Supreme Court names the other judges on the panel.