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April 10, 2008

Electrifying capital issue from Nebraska (on path to GVR?)

This local story provides this electrifying news about Nebraska's death penalty system:

The Nebraska Supreme Court on Wednesday refused to reconsider its decision that electrocution is unconstitutional.  The decision was handed down by the court in response to Attorney General Jon Bruning’s request for another hearing in the case. The court did not explain its decision.

It didn’t come as a surprise — Bruning had said he didn’t expect judges who made the landmark decision to change their minds.  “Nebraskans overwhelmingly support the death penalty. We’ll do everything possible to ensure the sentences of the state’s worst murderers are carried out,” he said Wednesday. His office plans to appeal to the U.S. Supreme Court.

If and when the Nebraska AG seeks cert on this issue, I think the US Supreme Court would be inclined to GVR the case back to the state courts after the Justices establish a general legal standard for method of execution cases in Baze.

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April 10, 2008 at 01:58 PM | Permalink


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Uh, no. The decision rests squarely on state constitutional law.

Posted by: karl | Apr 10, 2008 10:48:57 PM

I agree with Karl. My prediction is the U.S. Supreme Court will say "cert. denied" to the Nebraska Attorney General. The Nebraska Supreme Court's rationale was entirely based upon state law according to the majority opinion(6 of 7 Justices).

(I am a former criminal defense attorney now working as a lobbyist.)

Posted by: JPM | Apr 11, 2008 9:37:06 AM

If SCOTUS GVRs this case, it will be the easiest decision the Nebraska Supreme Court ever writes. "Previous opinion affirmed. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)." Look, I even wrote it for them.

Posted by: Chuck | Apr 11, 2008 9:14:52 PM

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