Lancaster County Attorney files motion for special prosecutor to review GOP break-in

County Attorney Pat Condon, a Republican, said his office had filed a motion to appoint a special prosecutor in the case Friday — two days after LPD officials requested that a special prosecutor be appointed to take a second look at its investigation into the break-in, which was reported to police July 11.

LPD referred questions to Condon, who largely declined to explain the rationale behind appointing a special prosecutor.

"I consider these open cases and, as you know, I don't comment on open cases," he said. 

"I just thought there needed to be a special prosecutor in this matter for the integrity of the judicial process," he added.

Nebraska GOP officials reported a computer, a camera system, paperwork and files were stolen from the party’s headquarters at 1610 N St.

The reported burglary occurred the same weekend as the party’s contentious state convention in Kearney, where Eric Underwood was elected as the party’s new chairman after delegates ousted Dan Welch of Omaha, the longtime chairman, from the position.

The files and paperwork were later recovered, according to the public incident report stemming from the case.

In an email last week, Lincoln Police Capt. Todd Kocian said LPD’s investigation into the incident had concluded.

“No arrests were made as the investigation yielded no criminal offense that would support law enforcement action,” he said.

But the party — now led by a grassroots faction following last summer's convention and subsequent exodus of the party establishment — hired Tom Nesbitt, the former superintendent of the Nebraska State Patrol, to independently investigate the break-in.

At a quarterly party meeting in Omaha last month, Nesbitt raised concerns about what he described as LPD’s refusal to release reports stemming from the agency’s investigation, according to live tweets of the meeting from the Nebraska Freedom Coalition, a political action committee. 

Nebraska’s public records statute allows law enforcement agencies to withhold records they deem “investigatory” in nature. The statute does not require an investigation to be active or ongoing for an agency to withhold records.

Paul Kratz, the Nebraska GOP’s attorney, filed a document in October in Lancaster County Court seeking permission to subpoena the police department’s case file stemming from the reported break-in.

In a motion to quash the party’s request filed in December, Tonya Peters, an assistant city attorney and LPD’s legal adviser, said “there is no legal basis for granting (the party’s) request,” in part because Kratz and the party haven’t actually filed a lawsuit against the city seeking the records.

A day before the two sides were set to argue at a hearing on Peters' motion Friday morning, Kratz moved to withdraw the party's subpoena request for the department's file because of Condon's request for a special prosecutor. 

A judge approved Kratz's request Friday in a hearing that lasted less than a minute after Peters — the only attorney who attended the hearing — offered no objection to the motion. 

Reached by phone Friday, Kratz said the party's quest for the records is "just on hold" as the second look at LPD's investigation into the break-in unfolds. 

Kratz declined to speculate on whether the party would attempt to subpoena the records again if a special prosecutor came to the same conclusion LPD did: that no criminal offense that would support law enforcement action occurred.

It will be up to a Lancaster County District Court judge to appoint a special prosecutor to the case. No judge had been assigned to the case as of Friday afternoon.