Nebraska Supreme Court rejects sex offender's appeal; man said parts of supervised release law are excessive

Personally I disagree with decision as the circumstances in question didn't arise until he broke the registration law, only then can he say "excessive" and have it be ripe for consideration! AND, The real problem is that the "conditions" of supervised release are not disclosed at time of sentencing. They are imposed by parole/probation agents after it starts.

8-12-17 Nebraska:

LINCOLN — The Nebraska Supreme Court on Friday rejected the appeal of a convicted sex offender who challenged parts of the state’s new supervised release law as excessive.

The appeal by Christian Phillips was the first challenge of criminal sentencing changes allowed under Legislative Bill 605, which was passed in 2015 to help reduce prison overcrowding and decrease repeat crimes.

Phillips was convicted of third-degree sexual assault of a child, a felony, in 2013. Upon his release he was required to report his address under the Sex Offender Registration Act.

When it was discovered that he was living in north Omaha instead of at the Papillion address he had reported, he was sentenced to one year in prison and one year of supervised release for failure to comply with the registration law.

Phillips, now 24, appealed, saying the sentence was excessive, as were the 26 conditions he needed to fulfill during his supervised release.

His attorneys argued that requirements that Phillips undergo alcohol and drug testing, attend alcohol or drug rehabilitation programs, wear an alcohol monitoring device, and pay for frequent blood tests weren’t justified because there was no evidence he had substance abuse problems. ..Continued..

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8th Circuit says Nebraska's sex offender list doesn't apply to boy

8-1-17 Nebraska:

The 8th Circuit Court has ruled in favor of a 15-year-old boy whose family sued the Nebraska State Patrol to keep him from being put on the state's sex offender registry for a juvenile case in Minnesota.

Attorney Joshua Weir, who represented the boy and his family, said Monday that common sense finally prevailed.

He said he didn't realize that the State Patrol was putting minors — whose cases were handled in juvenile court in other states and who later moved to Nebraska — on the public registry until this case came up.

It never made any sense, Weir said.

Nebraska's registry excludes juveniles prosecuted in Nebraska unless they were prosecuted criminally in adult court. Minnesota's juvenile registry isn't public.

From the start, the Nebraska Attorney General's office conceded that if the boy had done in Nebraska exactly what he did in Minnesota, he wouldn't have been required to register as a sex offender. ..Continue..

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Family of inmate killed in 2015 Tecumseh prison riot files lawsuit against Nebraska

5-2-17 Nebraska:

LINCOLN — The family of an inmate who died during the Mother’s Day 2015 riot at the Tecumseh State Prison has filed a lawsuit accusing the state of failing to protect him and adequately staff the facility.

Shon Collins, 46, was one of two inmates found dead after inmates took control of two housing units at the prison for several hours, setting fires and ransacking cells, resulting in more than $2 million in damage.

The lawsuit, filed by Lincoln attorney Joy Shiffermiller, says that the state failed to keep Collins apart from other inmates.

A spokeswoman for the Nebraska Department of Correctional Services declined to comment, saying that the agency’s policy is to not comment about pending legal action.

The lawsuit, filed Tuesday in Lancaster County District Court, did not specify an amount of damages requested. But Collins’ family asked for $1.2 million in a claim with the State of Nebraska that was denied last year.

Collins, a sex offender, was in protective custody, separated from other inmates, at the time of the riot because he previously had been threatened and assaulted by other inmates, the lawsuit says.

Yet, on the day of the riot, the suit says, inmates from three housing units, including those in general population and those in protective custody, were all released from their cells to a prison yard to obtain medications.

When the riot broke out, corrections officers quickly were overwhelmed and fled to a prison guard tower, leaving Collins unprotected, the suit says. “The inmates were left to fend for themselves while the staff left their posts and ran for safety.”

Collins was serving 66 to 80 years for first-degree sexual assault of a child and visual depiction of sexually explicit content in Box Butte County. His sentence began in 2010.

Collins, his family was told, died from blunt force trauma but also had been stabbed several times.

The other inmate found dead, Donald Peacock, was also a sex offender. He was sentenced in Dodge County to serve 40 to 50 years for first-degree sexual assault of a child and visual depiction of sexually explicit conduct. He began his sentence in 2014.

Collins’ lawsuit is the first filed in connection with five deaths at the Tecumseh prison over the past two years. The deaths have raised questions about the staffing and safety at the state’s highest-security facility. ..Source.. by Paul Hammel BH News Service

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City Council Rejects Sex Offender Residency Restrictions

1-5-16 Nebraska:

FALLS CITY – City council discussed and took action on whether or not to draft an ordinance restricting the distance a registered sex offender(s) can live to a school or a licensed daycare.

Joan Stoller, the resident that requested the agenda item, spoke again on how she believed this particular ordinance would protect children in the community. Stoller originally requested the agenda item after a registered sex offender had moved into a home on her street. A daycare provider, who also runs her business on the same street, also attended the meeting and spoke to the council. The daycare provider stated to the council that she has had no issues with the offender.

Police Chief Duane Armbruster said, in the December 7th council meeting, that the proposed ordinance would only restrict where sexual predators live. He clarified that a sexual predator is an individual who is required to register under the Sex Offender Registration Act, who has been classified as a high risk sexual offender by the State Patrol, and who has victimized a person 18 years of age or younger.

Armbruster stated at Monday night’s meeting that only 5 out of the 10 sexual offenders that live in Falls City would be considered a sexual predator. Armbruster also stated, to the best of his knowledge, none of the offenders that currently reside in Falls City have reoffended. Sexual offenders are required to register through the Sheriff’s office.

Armbruster stated many factors would need to be considered if the ordinance were to be put in place, such as a city survey would need to be conducted. He also warned council members of the possibility of law suits

The offender who has moved onto the street where Stoller also resides, did attend Monday night’s meeting. He stepped forward and spoke to council members on how, based off of his research, similar ordinances haven’t shown evidence of being effective. He also stated creating barriers on where sexual offenders reside could possibly increase the chance of homelessness and create multiple financial and personal burdens on the offender.

Councilmen Dougherty made the motion to request a draft of the ordinance be written by the City Attorney, Councilmen Scholl seconded the motion. Council members tied in voting for a draft to be written: 4 yay; 4 nay, Mayor Oliver then took action by placing his vote of nay. ..Source.. by Elise Waller

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Child Molester Won't Lose Parental Rights

10-21-15 Nebraska:

The Nebraska Court of Appeals has ruled that a man in prison for molesting his 6-year-old daughter should not have his parental rights terminated under the state law used to sever those rights. The decision Tuesday came as part of a case in which the girl's stepfather seeks to adopt her and her two younger brothers.

The appeals court faulted the termination by a court judge, instead of a juvenile court judge, under a state adoption law that allows the termination of parental rights if the parent has abandoned the child for at least six months prior to the adoption filing.

The appeals court said the imprisoned father had sent the children letters and cards in the six months before the adoption action was filed. ..Source.. by kfor1240.com

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Father loses effort to get his girls out of sex offender’s home

8-26-15 Nebraska:

LINCOLN — An appeals court has rejected a Central City man’s attempt to gain custody of his two daughters after his ex-wife married a registered sex offender.

On Tuesday, the Nebraska Court of Appeals upheld the decision of a district court judge who ruled that the girls — ages 16 and 14 — should remain in the household of a man who served four years in prison for the attempted sexual assault of a 15-year-old girl.

Phelps County District Judge Terri Harder relied heavily on the opinion of the girls’ mental health therapist, who said the children were not at “significant risk” from their stepfather.

State law does not require the automatic removal of children from homes shared by a sex offender if the courts find that there is no significant risk of harm.

The three judges on the Court of Appeals said they were unwilling to overrule the district judge’s determination that the sex offender in the Phelps County case posed a low risk of doing harm.

“In order to conclude there was no significant risk to the children, the court had to consider the best interests of the children,” Judge Riko Bishop wrote for the Appeals Court. “Implicit in the district court’s holding is the determination that it was not in the children’s best interests to modify custody based solely on the fact that (the sex offender) lived with them.”

The girls’ parents divorced in 2004 after five years of marriage. The mother won primary custody and the father was granted visitation.

In 2011, the mother moved in with the sex offender, who had been convicted of felony attempted sexual assault on a stepdaughter from a prior marriage. She married the man in 2012 when the girls were ages 12 and 10.

It marked the second time the mother had been in a relationship with a sex offender. After her first marriage ended, she lived with a man who was later convicted of sexually assaulting her 5-year-old child, who is not one of the two girls in the custody dispute.

In 2013, the father of the two girls filed a petition for custody, arguing that living with a registered child sex offender put his daughters at risk and was not in their best interests.

At trial, the mother testified that the girls had been instructed to change clothes behind closed doors and not walk through the house wearing towels. She also said the bathroom door was equipped with a lock but added that she didn’t consider the lock necessary to protect her daughters from her husband.

The stepfather testified that he had successfully completed three stages of sex offender treatment along with inpatient treatment while in prison. He said he learned to identify red flags for child molesters, which include spending a lot of time with one child alone, granting special privileges to one child or asking a child to keep secrets.

He testified that he is rarely alone with just one child.

Joan Schwan, a licensed therapist who started treating the girls in 2013, testified that she asked the girls about their stepfather’s behavior to determine whether he was trying to “groom” them as victims. No such behavior was reported and there appeared to be good boundaries at home, the therapist told the judge.

Schwan, however, said her clinical background did not involve adult sex offenders. She also said that while she reviewed some of the stepfather’s prison files, she did not interview him.

Nonetheless, the therapist said she did not perceive a risk to the children. Relying heavily on the therapist’s opinion, the judge ruled in the mother’s favor regarding custody.

In its review, the Court of Appeals focused on a provision from the Nebraska Parenting Act that relates to children living with sex offenders. The law says that when the custodial parent moves in with a sex offender, it represents justification for a change in custody.

However, if the court determines the children are not at risk, it has the discretion to leave the living arrangement unchanged.

Mindy Lester, an attorney who represented the father, said the law also puts the burden of proving safety on the parent who is involved with the sex offender. Lester argued that no testimony was offered from a mental health specialist who interviewed the stepfather to determine his risk of re-offense.

Therefore, the girls’ mother did not meet the burden required under the law, Lester said.

A message left Tuesday with the mother’s attorney was not returned.

Tuesday’s opinion marked the first time an appeals court in Nebraska was asked to consider a custody case involving a sex offender convicted of a felony. A previous State Supreme Court ruling related to the same law involved a misdemeanor sex offense.

A decision on whether to appeal the Phelps County case to the Supreme Court had not been made, Lester said. ..Source.. by Joe Duggan

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Judge dismisses Nikko Jenkins' suit against prison

7-29-15 Nebraska:

A Lincoln judge has dismissed Nikko Jenkins' self-filed lawsuit against the Nebraska Department of Correctional Services for denying him mental health services before he got out and killed four people in Omaha.

Lancaster County District Judge Lori Maret wrote in a four-sentence order Friday that Jenkins had failed to serve the Corrections Department, as state law requires.

In November, Jenkins filed the civil rights lawsuit alleging that his mental stability had deteriorated during 2½ years in solitary confinement at the Tecumseh State Correctional Institution and that he was suffering from severe psychosis when prison officials released him from a solitary confinement cell straight into society.

He was seeking $1.7 million.

While in prison, Jenkins had asked for mental health treatment -- in writing -- 38 times. He asked for psychiatric hospitalization six times, and three times for civil commitment. All were denied.

Within weeks of his release, he killed four people in Omaha over a 10-day stretch and later pleaded no contest to four counts of first-degree murder and other charges.

The state is seeking the death penalty, but the sentencing phase is on hold to see if the law to remove the death penalty goes into effect Aug. 29. ..Source.. by Lori Pilger

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Court: Former prisoner sexually abused by guard can sue

While it is true one cannot sue the DOC, this fellow must have forgotten to include suing Hansen in his individual capacity. Otherwise this ruling says the DOC is also immune to being sued for ILLEGAL acts (ultra vires acts) as well.

7-15-15 Nebraska:

A former prison inmate who was sexually assaulted by a guard can sue the Nebraska Department of Correctional Services for what he says was retaliation after he reported the incident, a state appeals court ruled Tuesday.

The 33-year-old inmate sued Anthony Hansen, the Corrections Department and other prison officials for $150,000. The Associated Press generally does not identify victims of sexual assault.

A three-judge panel of the Nebraska Court of Appeals overturned part of an earlier ruling by Douglas County District Judge Michael Coffey, who had dismissed the entire case after state officials argued they were immune from lawsuits. The appeals court agreed that the inmate couldn't sue the Corrections Department for the sexual assault, but it ruled he can pursue a case alleging that Corrections Department employees retaliated against him.

Julie Jorgensen, the inmate's attorney, said Tuesday she had not yet read the ruling and wouldn't comment without first speaking to her client.

Corrections Department spokesman James Foster said the department wouldn't comment because the case was still in the courts.

Hansen pleaded guilty to sexual abuse of an inmate in May 2012 and was given two years of probation and required to register as a sex offender for 25 years.

According to the ruling, Hansen approached the inmate in December 2011 at the Omaha Correctional Center "with the proposition to meet in the chapel to engage in sexual activity." Hansen later proposed meeting in a commons area, because the chapel had security cameras.

The inmate, who was serving time for theft, tried to deflect Hansen's advances, according to the lawsuit. Hansen then spoke to the inmate about his parole date, which the inmate interpreted as a threat. Hansen had previously said that if the inmate didn't comply with his sexual requests, he or his friends could lose "good time" credit on their sentences or be placed in segregation, the ruling said.

According to the ruling, the inmate reluctantly agreed to meet with Hansen in the commons area, where Hansen shoved him into a wall, forcibly kissed him and pushed him to his knees before sexually assaulting him. The inmate preserved some of Hansen's bodily fluids and reported the assault to prison officials.

The inmate alleged in his lawsuit that he was placed in disciplinary segregation for 30 days while prison officials conducted an investigation, giving him limited telephone privileges and no contact with other inmates. Prison guards were instructed not to talk to him, and the inmate was told not to speak to anyone about the sexual assault, according to the ruling.

The inmate said he requested a transfer to another medium-security facility, but was told there was no room anywhere else. He said he was frequently visited by a prison investigator, identified in the ruling as John Doe, who advised him that he would get more jail time for lying and that he was "ruining" Hansen's life. DNA testing eventually confirmed that the bodily fluids were Hansen's.

According to the lawsuit, the inmate repeatedly asked for counseling services and was eventually given two therapy sessions while incarcerated. He said in the suit he continues to suffer from intimacy problems, depression, anxiety and severe emotional distress, but can't afford to see a therapist more than twice a month. ..Source.. by GRANT SCHULTE

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High court won't be asked to consider case of boy on sex offender list

4-19-15 Nebraska:

The Nebraska Supreme Court won't be asked to weigh in on whether the way a state law is written should result in a 12-year-old boy ending up on the state's Sex Offender Registry.

The question specifically is whether, by the letter of the law, minors listed on another state's sex offender registry should be put on Nebraska's list when they move to Nebraska, even if their cases went through juvenile court.

In Nebraska, lawmakers opted to exclude juveniles unless they were prosecuted criminally in adult court.

But when the Minnesota boy in this case moved to Nebraska to live with relatives, the Nebraska State Patrol determined he had to register because of a subsection of the law.

Specifically, it says the Sex Offender Registry Act applies to "any person who on or after January 1, 1997 ... enters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."

In this case, the boy was 11 when he was adjudicated for criminal sexual conduct in juvenile court in Minnesota. A judge there gave him probation, counseling and community service, and his name went on a part of that state's predatory offender list visible only to police.

That led the patrol to conclude that the boy should be put on the list.

In August, the boy's family filed a federal lawsuit seeking to block the patrol from putting him on Nebraska's registry, which is public.

In February, Omaha attorney Joshua Weir asked Senior U.S. District Judge Richard Kopf to certify the question to the Nebraska Supreme Court because there is no case law to address the issue.

Kopf declined, but Weir said he sees reason for optimism in the judge's 10-page ruling this week.

"Although Judge Kopf ruled against the motion, I am very encouraged," he said Tuesday by email. "Judge Kopf noted that the law was clear that other sections of the law clearly did not apply to a juvenile adjudication."

In his order, Kopf noted that the Nebraska Juvenile Code says juvenile court adjudications are not to be deemed convictions.

Although similar, an adjudication is a juvenile court process through which a judge determines if a juvenile committed a given act.

In Kopf's order, he said if a conviction is a prerequisite to be a sex offender under Nebraska law, the subsections shouldn't apply to people required to register elsewhere based on juvenile court adjudications.

But he also noted that the specific subsection the patrol was applying to an out-of-state adjudication has not been considered by a court before.

And, he wrote, the plaintiffs didn't seek to certify to the Nebraska Supreme Court the question of whether the state's Sex Offender Registry Act applies to people required to register elsewhere as sex offenders because of adjudication.

They asked whether the subsection applies to a minor required to register in a state where the public isn't notified of juvenile court adjudications, he said.

Kopf said the question was unclear and "cannot reasonably be interpreted in the manner suggested by the plaintiffs' question." ..source.. by Lori Pilger

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Former corrections attorney says she purposely dropped bombshell

2-3-2015 Nebraska:

LINCOLN, Neb. — Sharon Lindgren knew exactly what she was doing when she dropped a bombshell into her testimony during a legislative hearing on prison scandals in September.

The former corrections attorney was subpoenaed to testify before a panel of state lawmakers investigating several prison controversies.

Why, Lindgren was asked, did she think the state Department of Correctional Services failed to heed a 2013 Nebraska Supreme Court ruling, State vs. Castillas, on how to calculate certain sentences.

“I’d mentioned Payan,” she told the committee chairman, Sen. Steve Lathrop.

“Mention(ed) what?” he asked. “State vs. Payan,” she replied.

It was a 2009 Supreme Court ruling that putting sex offenders on lifetime supervision constituted punishment and should be decided by a court, not the corrections department. After the ruling came out, two corrections attorneys — lead attorney George Green and Kathy Blum — met with three lawyers from the attorney general’s office to decide how to proceed.

“What was reported back to me from that meeting was they were told — Kathy and George were told and they both confirmed this — that, oh , it’s a decision in a criminal case,” Lindgren, under oath, told lawmakers. “It doesn’t really cover what the department can or cannot do, so just keep on doing it, which sounds very similar to the position that was ultimately taken in Castillas.”

“Do you tell me this because the culture is to ignore the Supreme Court?” Lathrop asked Lindgren later.

“At least it was my understanding the AG’s office advised the department to ignore the Supreme Court or to not apply the Payan case,” she reiterated. “I think it’s just blatant … a blatant violation of the inmate’s rights.”

Lindgren had long opposed the department putting offenders on lifetime supervision, believing it to be a criminal sanction beyond the department’s scope of duties. She wasn’t shy about making her opinions known to others. That’s probably why she wasn’t invited to the meeting with the AG’s office, she said in an interview Thursday.

Putting a person on supervision could mean they’d have to wear a GPS ankle bracelet, have their travel limited, have interaction with children (including their own) restricted, she said.

Lindgren wasn’t in the meeting but says Blum and Green went in hoping the department could stop putting people on supervision. Blum and Green declined comment.

She feared the practice could be a violation of sex offenders’ civil rights and could create a liability to the state and corrections employees. By the time she was hauled to the Capitol to testify about what she knew about prison problems, she and Green had resigned rather than be fired for their roles in the Castillas sentencing screwup.

She decided to go public about how the Payan situation may have contributed to a corrections culture in which people thought it was OK not to heed Supreme Court rulings. And when Lathrop asked her a question about the culture, she had her chance.

“I have spoken to anyone that I can think of,” she said. “George is fully aware of my views on this. Kathy is fully aware of my views on this. I have not been at all shy about saying we need to do something to get this resolved because it’s wrong. The AG’s office told us the case doesn’t apply and we’ll wait until … it’s very similar to what you’re hearing on Castillas. It’s a criminal appeal. It doesn’t deal with you … what the department is doing and so wait until you get a decision.”

Green later buttressed Lindgren’s testimony, saying, “I don’t know if it was a culture. I do know that, you know, what Sharon Lindgren said about the sex offender registration statute, that that had been the advice of the attorney general in that situation, but I wouldn’t say that it was a culture within the Department of Corrections.”

Green and Lindgren’s testimony infuriated former Attorney General Jon Bruning, who called their allegations utterly laughable, patently ridiculous and offensive.

“We would never give them advice to ignore the Supreme Court,” he said a day after they testified.

The two attorneys’ reputations were tarnished by the Castillas mess, and few reporters took much notice of the bombshell they dropped in the hearing because so many other scandals were swirling.

The state had lost at least nine court challenges and the Supreme Court had issued two more rulings making it clear only juries had the right to put people on lifetime supervision.

But nothing changed until 12 days after Lindgren decided to go public with her allegations. Finally, the solicitor general, who works for the attorney general, sent corrections a letter saying 32 sex offenders should be released from lifetime supervision.

Internal documents and emails obtained by Nebraska Watchdog and reported Monday appear to buttress Lindgren’s allegations. Key among them is a June 2009 letter Green wrote to former Assistant Attorney General David Cookson following up on their meeting. In it, Green says he agreed with points made during the meeting and that the department would continue assigning sex offenders to supervision. Lindgren called that a “cover your ass letter.”

Neither Bruning nor Cookson has returned calls seeking comment, but Cookson told the Omaha World-Herald Thursday he advised corrections to follow the Supreme Court ruling, and they ignored his advice.

Asked Wednesday whether the corrections department agreed with the attorney general’s advice on how to respond to the ruling, corrections spokesman James Foster referred to the documents and said, “There was a difference.”

Lathrop has called for a federal investigation into the matter. ..Source.. by Deena Winter

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Boy's family fighting state putting him on sex offender registry

2-11-2015 Nebraska:

Juveniles aren't listed on Nebraska's Sex Offender Registry, but a 12-year-old boy who recently moved to the state could end up there by the letter of the law.

His family is fighting the move, and a federal judge already has agreed to block the Nebraska State Patrol from adding his name and picture to the registry and public website while the civil case is pending.

The issue appears to be an unintended consequence of how the state's Sex Offender Registry Act was written. Specifically, state law says the act applies to "any person who on or after January 1, 1997 ... enters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."

Enter the problem.

Minnesota's predatory offender list requires juvenile offenders to register, although the information is reported to law enforcement only and not made public.

Nebraska's registry doesn't require juvenile offenders to register, not even on a private list for police.

Lawmakers here opted to make their own rules and not to comply with the entire Adam Walsh Child Protection and Safety Act of 2006, which includes listing juveniles. In doing so, they lost out on $163,000 in federal funding, Omaha attorney Joshua Weir said.

The recent problem arose when the boy from Minnesota, charged in juvenile court there with criminal sexual conduct in the first degree at age 11, moved to rural Nebraska to live with relatives.

In Minnesota, the boy got probation with counseling and community service. When he moved to Nebraska, his probation officer here consulted with the State Patrol, which determined that under the law he had to register.

Weir said state employees recognized that putting the boy on the list would be problematic under Nebraska law because of his age.

"But essentially what they said was our hands are tied unless you get a court order," he said.

In August, Weir filed a civil case in U.S. District Court in Omaha on behalf of the boy's family seeking to stop the state from adding him to the public list or arresting him for violating the Sex Offender Registry Act.

They also sought an answer from the court on whether it would violate the boy's due process rights to treat him differently than other juveniles in Nebraska by putting him on the list and whether it would constitute as cruel and unusual punishment because he's so young.

"He's not an adult predator," Weir said.

But before the federal court gets to those questions, he is asking Senior U.S. District Judge Richard Kopf to certify a question of state law to the Nebraska Supreme Court, namely, whether the section of the statute that requires people subject to out-of-state registries to register in Nebraska when they move here applies to juveniles.

Weir said the state Supreme Court hasn't weighed in on that question.

Ultimately, he said, he's hoping the Legislature will take a look at the issue and "make a quick fix."

So far, the state is defending the law as written. And, in a federal court filing, Assistant Nebraska Attorney General Ryan Post called Weir's move unwarranted because the Nebraska Supreme Court already has interpreted the plain language of the law.

He cited a case that didn't involve a juvenile but found the statute to be plain, direct and unambiguous: that a sex offender who has to register in another jurisdiction is required to register here.

Based on the facts, Post said, whether the statute applies to the boy "should be beyond dispute."

Suzanne Gage, a spokeswoman with the state Attorney General's Office, said the office doesn't have a comment on the case at this time.

Kopf hasn't yet ruled on the request. ..Source.. by Lori Pilger

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High court upholds dismissal of lawsuit over email calling home inspector 'total idiot'

1-31-2015 Nebraska:

The Nebraska Supreme Court has upheld the dismissal of a libel lawsuit filed over an email that referred to a Seward home inspector as a "total idiot."

Friday's decision stems from a 2012 lawsuit in which Matthew Steinhausen said he was anonymously forwarded an email written by real estate agent Shelly Nitz. In the email, Nitz provided feedback on Steinhausen's performance to two real estate companies, Woods Brothers Realty and HomeServices of Nebraska, saying, "He did an inspection in Seward for the agent that sold one of my listings. I will never let him near one of my listings ever again. Total idiot."

Steinhausen's lawsuit said the email, sent to about 600 people, was libelous and hurt his business with those two major real estate companies in the Lincoln area.

Attorneys for Nitz and the real estate businesses said the email was opinion protected by the First Amendment, and a Lancaster County District judge agreed. Steinhausen, who represented himself in the lawsuit and had been an inspector for more than 10 years in 2012, appealed.

The state's high court upheld the dismissal as it pertained to Steinhausen but vacated a dismissal related to Steinhausen's business, Steinhausen Home Inspections.

The high court found that even though Steinhausen is the sole member of Steinhausen Home Inspections, he could not represent the business entity because he is not licensed to practice law. The reversal leaves open the question of whether Steinhausen's business can again sue over the email.

Attorneys for Nitz and the real estate companies did not immediately return phone messages Friday seeking comment.

Steinhausen said Friday that he is considering his options, including whether he can hire an attorney and refile a complaint on behalf of his business.

He said the email "definitely hurt my business, no question." The real estate companies he sued typically do about 6,000 real estate transactions a year, he said. After the email was sent, he said he was hired for a property inspection on only one of those transactions the following year. ..Source.. by Omaha.com

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High court: Taking away convicted rapist's good time credits violated Constitution

11-7-2014 Nebraska:

LINCOLN — A sex offender convicted of raping a 3-year-old girl in 1979 has successfully challenged a law that would delay his prison release for refusing to submit to a DNA test.

The law revoked the good time credits earned by George Shepard, 60, of Omaha after he refused to provide officials with a DNA sample. In an opinion released Friday, the Supreme Court said taking away his good time violated the U.S. Constitution, which prohibits new punishment under a law enacted after a person was convicted and sentenced.

Shepard was sentenced to 41 to 50 years in prison in 1990 for first-degree sexual assault on a child and manufacturing child pornography. At the time, no requirement for DNA testing existed.

In 1997, the Legislature adopted a law requiring the DNA testing of imprisoned sex offenders, including those incarcerated for offenses committed prior to the law’s passage. The DNA was to be put a bank for use by law enforcement in the investigation of other crimes.

A subsequent change in the law provided for the loss of good time for inmates who refused the test.

Under the state’s good time law, which cuts sentences in half for inmates who follow prison rules, Shepard was scheduled for release in 2015 after serving 25 years.

Shepard refused, however, when asked to submit a DNA sample in 2010, a decision that meant he would have to spend an additional 25 years locked up. Representing himself, he challenged the law, arguing it violated the Constitution’s “ex post facto” clause.

Lancaster County District Judge Andrew Jacobsen ruled last November in Shepard’s favor. Attorney General Jon Bruning appealed, arguing the loss of good time amounted to a civil regulation intended to assist law enforcement efforts. The punishment was not for the crime, but for refusing to follow a prison regulation.

A unanimous Supreme Court sided with Shepard because at the time he was convicted, the only way for him to lose good time was through flagrant misconduct. Therefore, the DNA law violated the Constitution because it increased Shepard’s punishment retroactively.

“While the requirement of DNA sampling, in itself, may be civil, the attendant forfeiture of good time increases the quantum of punishment for Shepard’s original crimes beyond the measure of punishment legally stated at the time they were committed,” Judge Michael McCormack wrote for the court. ..Source.. by Joe Duggan

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Federal judge dismisses Nebraska inmate lawsuit, saying prisoners not entitled to minimum wage

10-30-2014 Nebraska:

OMAHA, Nebraska — A federal judge has dismissed a lawsuit by a Nebraska prisoner who argued that he should be making minimum wage for his work behind bars.

Stephen Cavanaugh, 23, sued several state prison officials earlier this year, saying that over the past year, he has been assigned to work as a food server, window washer and a prison yard maintenance worker, with his work time varying between six hours and eight hours a day for between five and seven days a week. Cavanaugh, who represented himself in the lawsuit, said he was paid between $1.21 and $2.25 a day for the work.

His lawsuit said he should have been paid minimum wage of $7.25 an hour and asked a federal judge to award him at least $3,400 in wages he should have earned, plus $350 for his legal costs.

"Cavanaugh continues to be employed on the yard crew and is still paid less than minimum wage," he wrote in his complaint. "Therefore, the amount of actual damages continues to rise."

But U.S. District Judge Laurie Smith Camp dismissed the lawsuit Wednesday, saying that while state law sets minimum wage at $7.25 an hour, another state law specifically allows the prison system director to make rules governing the hours prisoners work and how much they're paid.

The judge also noted that language in state law regarding prisoners contemplates the possibility that some inmates will not earn minimum wage. The language says that "inmates earning at least minimum wage" may have their wages withheld to be deposited in a state victim compensation fund.

"Clearly, if Nebraska's legislators intended that all prisoners earn minimum wage, this language would not have been necessary," Smith Camp wrote in her order.

Cavanaugh was sentenced last year to at least six years in prison after being found guilty of two counts of attempted first-degree assault and two counts of use of deadly weapon. Police say Cavanaugh threatened two Grand Island men with a hatchet in July 2012. One of the men had a protection order against Cavanaugh at the time.

Corrections department spokesman James Foster declined comment on the ruling and Cavanaugh could not immediately be reached by phone for comment. ..Source.. by MARGERY A. BECK

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State says Jenkins’ crimes not its fault

8-21-2014 Nebraska:

Nebraska can’t be held liable for what the felon did outside prison, the Attorney General’s Office argues

As another victim’s family sues over the release from prison of Nikko Jenkins, state attorneys are asking a federal judge to dismiss a similar wrongful death suit.

The Nebraska Attorney General’s Office argues that the state had no control over — nor a duty to exercise control over — Jenkins once he was released from prison.

Nor did the state have much choice but to release Jenkins, the state argues.

“An inmate’s properly calculated mandatory discharge date is precisely that: mandatory,” wrote David Lopez, an assistant under Nebraska Attorney General Jon Bruning. “State (officials) could not have anticipated Jenkins’ murderous rampage, nor were they subject to any legal duty to do so.”

The families of two of Jenkins’ victims vehemently disagree. Jenkins had vowed to kill and to drink the blood of innocents when he was released from prison.

Three weeks after his July 30, 2013, release, Jenkins made good on his murderous promises — killing Jorge Cajiga-Ruiz and Juan Uribe-Pena on Aug. 11, Curtis Bradford on Aug. 19 and Andrea Kruger on Aug. 21. He is awaiting a death-penalty hearing.

In two lawsuits filed this week in federal and state court, Bradford’s family aired several allegations that were filed in a previous lawsuit by Kruger’s family.

Attorneys for Bradford’s mother, Velita Glasgow, said the state abdicated its duty to protect its citizens when it released Jenkins. The state let Jenkins go, even after Jenkins begged to be committed to the Lincoln Regional Center for fear that he would kill.

Glasgow’s attorneys, Judith Wells, Tim Ashford and William Harris, also alleged that Jenkins was released early after then-Corrections Director Robert Houston ordered him and numerous other inmates to be transferred from inpatient mental health treatment to outpatient treatment. The same claim was made by Kruger’s family.

Harris said he has been told of Houston’s purported order but has yet to receive state documentation to buttress that claim.

A committee looking into Jenkins’ release is expected to scrutinize that issue this fall.

The lawsuits also contend that authorities — from judges to corrections officials to police — didn’t act on Jenkins’ repeated threats to kill.

“Words can’t really describe how someone with those issues was allowed out and allowed to take multiple lives,” Harris said Wednesday. “The system broke down at the state level, the county level and the local level.”

Local law enforcement officials have questioned whether they were expected to put Jenkins under surveillance and monitor his movements from the moment he got out. A judge presented with one of Jenkins’ ramblings turned it over to sheriff’s deputies.

And in a brief filed last week in federal court, the Nebraska Attorney General’s Office argued that authorities could not be found liable for failing to prevent Jenkins’ bloodshed. Writing on behalf of the state, Lopez cited several cases in which appellate courts have thrown out wrongful-death claims filed against the government over a killer’s actions.

“There is no constitutional right to be protected by the state against being murdered by criminals or madmen,” Lopez wrote, quoting from a 1982 appellate court ruling.

Lopez also pointed to a 1980 U.S. Supreme Court ruling in the matter of a California parolee who murdered a 15-year-old girl.

In that case, the high court ruled that a parole board was not responsible for the killing committed by the parolee, a sex offender.

In essence, the court ruled, state officials didn’t commit the slaying and couldn’t be expected to prevent it.

“Her life was taken by the parolee five months after his release,” the high court wrote in that case. “He was in no sense an agent of the parole board.”

The state’s attorneys pointed to another ruling — out of the Eleventh Circuit Court of Appeals in 1989 — in which a woman was abducted and raped within a day of a prisoner’s release.

In that 1989 case, the court held: “There is no general substantive due process right to be protected against the release of criminals from confinement, even if that release violates state law.”

In turn, the Nebraska Attorney General’s Office argued, the families of Jenkins’ victims are not entitled to damages.

“Particularly given that (the victims were) murdered by Nikko Jenkins three weeks after his lawful and mandatory release date,” Lopez wrote.

Authorities have alleged that Jenkins and his sister, Erica, killed Bradford after leading him to think that they and Bradford were going to commit a robbery.

Bradford and Jenkins had been hanging out that night — the two were shown in a photo posted on Facebook.

Harris and attorneys for the families of Bradford and Kruger have alleged that state officials had a duty to treat Jenkins in prison, to extend his sentence based on his aberrant behavior and, above all, to act on his promises to kill.

“In a nutshell,” Harris said, “the state failed to protect Mr. Bradford.”

A state legislative committee is exploring Jenkins’ release — along with the department’s unrelated release of hundreds of prisoners years before they were supposed to get out. Two hearings are planned for September. ..Source.. by Todd Cooper

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County's legislative priorities could include sex offender treatment funding

8-20-2014 Nebraska:

Lancaster County officials will consider lobbying state senators in coming months for state health funding to be spent on sex-offender treatment programs and to increase the fees that counties can charge for marriage and locksmith licenses. ... ...

The board also may ask senators to change the state Mental Health Commitment Act.

Now, the law doesn’t recognize mental abnormalities or personality disorders that cause a person to commit sexual violence as forms of mental illness, according to the county. As a result, the state doesn’t provide funding for community-based sex-offender treatment through its behavioral health regions.

County commissioners are hopeful that changing the Mental Health Commitment Act would allow state money to help pay for the STOP program, which works to keep sex offenders from re-offending. County officials say they won’t be able to continue offering the program without state funding.

“That sex-offender treatment is a key piece to keep people safe,” said Commissioner Brent Smoyer, who is seeking the Legislature’s District 26 seat. “If I go to the Legislature, that is one of the first things I would lead.” ... ...

“The state may have tightened their belts, but we consider it cost-shifting to the county,” Raybould said. ..Source.. by KEVIN ABOUREZK

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Court: Former Nebraska trooper convicted of sexual assault won't lose pension to victim

7-18-2014 Nebraska:

A former state trooper convicted of sexually assaulting an underage girl won't have to pay his pension to the victim's father, the Nebraska Supreme Court said Friday.

The court ruled that a 2012 law that would have allowed the garnishment was unconstitutional special legislation because it only applied to six crimes.

Billy Hobbs was convicted of first-degree sexual assault of a child in 2006 and sentenced to up to 30 years in prison. The girl's father sued Hobbs on her behalf, and was awarded $325,000. Hobbs filed a lawsuit seeking to have the new law declared unconstitutional.

The girl told investigators that Hobbs sexually abused her for two years, starting when she was 12 years old. The Associated Press does not generally identify victims of sexual abuse.

Victims of other crimes aren't entitled to retirement assets, so the law effectively creates two separate classes of people, according to the ruling. It also gives preference to public employees who plead no contest or are convicted of a crime that wasn't included in the 2012 law, the court ruled.

"No substantial difference exists between the favored group of victims and employees and those victims and employees who do not receive the act's benefits," Justice William Connolly said in the opinion.

Hobbs is receiving more than $3,700 a month while in prison, with more than $1,800 going to his ex-wife as part of their divorce, according to court records. A judge rejected the father's request to use the rest of the money to pay off the civil judgment, ruling that Hobbs' retirement assets were exempt.

The 2012 law was introduced after the state Supreme Court declared that the old law protected state benefits from collection actions. It was passed as an amendment to a larger bill by the Legislature's Retirement Systems Committee.

The six crimes covered by the law are assault, sexual assault, kidnapping, child abuse, false imprisonment and theft by embezzlement. Those who are convicted also have to be found liable in a civil case.

The ruling upheld a decision by Lancaster County District Judge Paul Merritt Jr., who declared the amendment unconstitutional last year. Merritt said it was unclear why the law applied to six felonies and not others, such as robbery, arson or incest. ..Source.. by GRANT SCHULTE

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Federal appeals court says free speech rights of man convicted of child pornography not violated

7-17-2014 Nebraska:

OMAHA, Nebraska — A federal appeals court ruled Thursday that a Nebraska man convicted of distributing child pornography when he sent a photo showing the head of an 11-year-old girl on the nude body of an adult woman did not have his free speech rights violated.

Jeffrey Anderson, 28, of McCook, was sentenced last year to 10 years in federal prison for the case of child pornography "morphing," or digitally editing images into a pornographic picture. Prosecutors said Anderson sent the picture, which depicted the morphed image of the girl having sex with a man, to the girl via Facebook.

Anderson appealed the trial court's refusal to dismiss the distributing child pornography charge against him, arguing that the federal child pornography laws applied in his case violated his constitutional right to free speech. Anderson argued that because no minor was sexually abused in producing the image, he should not have been charged with making or distributing child pornography.

Prosecutors countered that Anderson's case was no different from a case in which the appeals court held that a morphed image of an underage boy's head on a different underage boy's nude body constituted child pornography.

A three-judge panel of the 8th U.S. Circuit Court of Appeals dismissed that argument by prosecutors Thursday, citing a 2010 U.S. Supreme Court ruling that clarified child pornography as unprotected speech when it involves visual depictions produced through sexual abuse of children.

But the appeals panel also found that the government's need to protect the girl trumped Anderson's free-speech argument.

"Anderson's distribution targeted (the girl) through her Facebook account, and the image suggested her involvement in sexual intercourse as an 11-year-old child," Judge Steven Colloton wrote for the panel. "There was no less restrictive means for the government effectively to protect this child from the exploitation and psychological harm resulting from the distribution of the morphed image than to prohibit Anderson from disseminating it."

Anderson has the option of requesting the panel to rehear his case or petition to have the full 8th Circuit hear his appeal.

Anderson's federal public defender was out of the office Thursday and did not immediately return a phone message seeking comment. ..Source.. by MARGERY A. BECK

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Nebraska appeals court upholds sex assault conviction

There is no way a substitute judge could tell if the new transcript is correct, since that judge was not at the trial! Could other changes have been made? This is going to the Nebraska Supreme court.

10-17-2013 Nebraska:

OMAHA, Nebraska — In a split decision, a three-judge panel of the Nebraska Court of Appeals upheld the child sexual assault conviction of an Omaha man who objected to a court reporter's covert efforts to correct a faulty trial transcript.

The decision Tuesday came in the case of Charles Kays, 72, who was convicted and sentenced in 2011 to up to 20 years in prison for sexually abusing a young girl starting when she was 4 years old.

On appeal, Kays' attorney noted several mistakes with the official court transcript — including that 13 jurors instead of 12 deliberated in the case. The court reporter corrected the mistakes, printed out a new version backdated to the date the original transcript was filed and then shredded the original transcript. She did so without the approval of a judge, which is required by law.

The court reporter admitted to making mistakes in amending the trial transcript, but testified she did so in an effort to provide an accurate record of the trial, not to hide her mistakes.

Kays' attorney objected to her actions, and the Nebraska Court of Appeals sent the matter of the amended transcript back to Douglas County District Court for a hearing. However, the trial judge in Kays' case recused herself, saying she had a conflict of interest, so the hearing was held before another judge who was not familiar with Kays' trial. That judge determined that the amended trial transcript was accurate.

Nebraska Court of Appeals Chief Judge Everett Inbody and Judge Frankie Moore upheld the lower court's finding that the court reporters' amended transcript was accurate in rejecting that and Kays' other arguments for a new trial.

In a dissenting opinion, Judge John Irwin said the other two judges understated the severity of the court reporter's misconduct.

"Court records are sacrosanct," Irwin wrote. "Accuracy in the judicial review process, and public confidence and trust in the process, depends mightily on the accuracy and trustworthiness of the record presented to the appellate court."

"It is entirely possible that the record presented to us now is accurate in every way," Irwin said. "But there is no way of knowing that."

Irwin said he would have ordered the original trial judge to decide whether the amended transcript was accurate.

Nebraska Attorney General Jon Bruning said Wednesday he was pleased with the majority's ruling.

"Let's not forget this man repeatedly sexually assaulted a child under the age of 10," Bruning said. "He deserves to be behind bars."

Kays' attorney, Frank Robak of Council Bluffs, Iowa, said he has not had a chance to thoroughly review the opinion, but he said he will likely file an appeal.

"It will very likely end up before the Nebraska Supreme Court," Robak said. ..Source.. by MARGERY A. BECK

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Nebraska high court upholds sex offender ruling

1-18-2013 Nebraska:

The Nebraska Supreme Court has upheld a ruling that requires a Wilcox man to register as a sex offender even though he wasn't convicted of a sex crime.

In a ruling released Friday the high court upheld a lower court's ruling against the appeal by 33-year-old Chad Norman.

The Supreme Court had asked the Buffalo County District Court in January 2012 to review evidence that proved Norman's crime involved sexual contact. The high court says in its ruling that the trial court found with clear and convincing evidence that Norman's crime involved sexual contact with his ex-girlfriend's 11-year-old son.

Norman was charged in 2009 with felony child sexual assault. After the prosecutor reduced the charge, Norman pleaded no contest to third-degree assault for threatening the boy. ..Source.. by SFGate.com

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