The Nebraska Supreme Court last week accepted the appeal of death row inmate Marco Torres, who was denied a hearing in Hall County District Court where his attorneys had sought to argue the state's death penalty is unconstitutional.
Torres' case is the first of the 11 men on death row to reach the state's highest court since a U.S. Supreme Court decision in 2016 struck down Florida's sentencing scheme.
Defense attorneys, like Bob Creager of Lincoln, say Hurst v. Florida, which said jurors must make every finding necessary for someone to get the ultimate penalty, put the constitutionality of Nebraska's system in doubt, too.
Creager said he thinks the decision means the court would strike down Nebraska's scheme, too.
That's because here a three-judge panel weighs mitigating circumstances after a jury finds a case death-eligible.
While attorneys can raise the issue in cases going forward, he said, the big question now is if it could apply to those already on death row.
Torres filed a 38-page motion for post-conviction relief in state court on June 14, with the help of attorneys with Federal Defender Services of Eastern Tennessee, appointed by a U.S. District Judge in his federal case.
A week later, the attorneys filed a 109-page petition in U.S. District Court in Lincoln arguing that Torres' death sentences are unconstitutional.
A week after that, on June 28, retired state District Judge James Livingston denied the motion in state court, saying Torres raised the issue five months too late.
He cited a case that sets a one-year limitation period to raise an issue, which in the Hurst case ran up Jan. 12, 2017.
Torres has appealed that decision, and the Nebraska Supreme Court agreed to take his case last week. But the court only would be deciding if he should've gotten a hearing.
So the question of whether Nebraska's death penalty procedures are constitutional won't be answered any time soon. Unless the U.S. Supreme Court takes a case and answers whether the Florida decision should be retroactive.
It's just another step in a slow process of reviews for death penalty cases.
Creager said every time a decision comes down or lawmakers make a change to the death penalty or the protocol, it raises potential issues.
"Death is different, as the court says," he said.
In 2009, a jury convicted Torres of first-degree murder for killing roommates Timothy Donohue, 48, and Edward Hall, 60, in Grand Island in 2007. His DNA was at the crime scene and he had used Hall's debit card two days before his body was found.
While Torres is the first of the state's death row inmates to reach the state's highest court raising the constitutionality issue, five others have open cases in state court.
Two others, John Lotter and Jeffrey Hessler, have both state and federal challenges going.
Only Carey Dean Moore, Ray Mata, Jose Sandoval, Erick Vela and Jorge Galindo have no pending appeals.