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Sixty miles from the Omaha courthouse, where a former police officer is in trial for second-degree assault for pulling a Taser trigger a dozen times on a mentally ill man, attorneys argued over whether the grand jury report on his death should've been made public.

The state, which is prosecuting the ex-officer, says it shouldn't. The attorney for an Omaha newspaper and TV station says it should.

The legal skirmish came in the grand jury of Zachary Bear Heels, an Oklahoma man who had schizophrenia and was bipolar, who died within minutes of a confrontation with Omaha police on June 5, 2017.

Two former officers — Scotty Payne and Ryan McClarty — ended up facing criminal charges. Payne for felony assault for his use of the Taser, and McClarty for misdemeanor assault for pulling Bear Heels by the hair and punching him 13 times.

On Wednesday, Corey O'Brien, the assistant attorney general prosecuting them, asked the Nebraska Supreme Court to reverse a Douglas County judge's decision to release the grand jury transcript and exhibits because it led to the prosecution of Payne and McClarty.

The outcome is a rare exception in Nebraska, where the vast majority of grand juries find no criminal wrongdoing.

O'Brien said he brought the case, in part, because the two statutes passed in 2016, which make the records available for public review, "were a little unclear."

"Until there was greater clarity on those I felt it important to protect the integrity of the record of the two individuals that were indicted as a result of the grand jury," he told the Supreme Court.

O'Brien said he also brought it to provoke legislative change, if necessary, to reflect what he believes lawmakers intended to do: release the information only where no criminal wrongdoing was found.

He said transparency and the dissemination of public information can both negatively and positively affect a case. It can affect the rights of a defendant or special prosecutor and the right to a fair and impartial trial by a jury, O'Brien said.

Justice Stephanie Stacy said O'Brien suggested lots of possible scenarios where the information could impede or effect a trial.

"But what do we know about whether any of that has happened?" she asked.

O'Brien said jury selection was laborious due to extensive media coverage.

Releasing the information gives potential jurors the ability to review it and form an opinion before they even go to court, he said.

Justice Jeffrey Funke said there's also an argument that witnesses may be unwilling to come forward in the future if their grand jury testimony is released.

"That's part of the argument of the secrecy of grand juries, isn't it?" he said.

O'Brien said that's a concern of his.

But it prompted Chief Justice Michael Heavican to ask: "Isn't that a policy decision for the Legislature?"

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O'Brien said it is, but he didn't think the Legislature anticipated a grand jury that resulted in charges when they passed the law.

Attorney Dan Fischer, representing the Omaha World-Herald and KETV, who had requested the information the state sought to block, said once you have a public policy of open records then you have to read the access to records broadly and liberally and restrictions narrowly.

Heavican asked if attorneys could obtain a protective order to prevent the release of the information or if lawmakers would have had to put that in the statute.

Fischer said he thinks it would be difficult to obtain such an order given that the "Legislature has made the purposeful decision to make these records public."

"To ask the court to overrule that then goes against some of the court's precedent and the division of powers as to who makes the decision about what are the valid reasons to change a statute and why," he said.

It also would require actual evidence of harm, Fischer said.

"There is none of that in this record, for sure. There has only been speculation as to what could potentially occur," he said.

And the jury selection process, Fischer said, is the best way to handle what potential jurors may know about a case before they go to court.

The Supreme Court took the case under advisement.

Whatever the court decides will provide guidance not only in the Omaha case, but also to trial courts across the state going forward.

Reach the writer at 402-473-7237 or

On Twitter @LJSpilger.



Lori Pilger is a public safety reporter.

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