The Nebraska Supreme Court on Friday rejected death row inmate Jeffrey Hessler's constitutional challenge to his conviction based on a 2016 ruling by the country's highest court.
Hessler asked to be taken off death row because a three-judge panel and not a jury sentenced him to death for raping and killing 15-year-old Heather Guerrero after he abducted her while she delivered newspapers.
His motion cited the U.S. Supreme Court's 2016 decision in Hurst v. Florida, which struck down part of that state’s system because jurors didn’t play a great enough role in determining whether defendants were sentenced to die.
In Florida, a jury had considered evidence before making a recommendation on whether the death penalty was appropriate, but the decision ultimately fell to a judge. In January 2016, the court found that the sentencing scheme violated the Sixth Amendment.
Nebraska has a similar method: A jury must determine whether certain aggravating circumstances alleged by the state existed to make the case eligible for the death penalty, then a three-judge panel weighs mitigating factors before making a decision.
Last June, Scotts Bluff District Judge Andrea Miller denied Hessler's motion for post-conviction relief, finding that the Hurst decision didn't create a new legal rule, so it was too late for Hessler, who was sentenced in 2004, to raise it.
She said the Nebraska Supreme Court already considered the same issue in death row inmate John Lotter's case, which it rejected in 2018. Justices said even if the decision in the Florida case had announced a new law, prompting a one-year period to raise the issue, it wouldn't apply retroactively to Lotter.
On Friday, the state's highest court agreed with Miller, finding that it wouldn't apply to Hessler either.
"For the sake of completeness, we note that even if Hessler's claims were not time-barred, they would not entitle him to post-conviction relief," Justice Stephanie Stacy wrote.
She said that's because after the state heard arguments in Hessler's case, the U.S. Supreme Court decided another case, McKinney v. Arizona, where the majority said a jury is "not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision."
In that case, Justice Ruth Bader Ginsberg wrote a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, saying they would find the death sentence in that case unconstitutional because it was based on aggravating factors found by a judge and not a jury.
Hessler also has a pending federal court case, which has been stayed since 2015 so that the issues raised in state court could be handled first.
Nebraska's 12 death row inmates
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