Omaha World Herald (Nebraska)

March 23, 1994 Wednesday BULLDOG EDITION

Stenberg: Otey Hurt By Ruling High Court Backs Jury Instructions

BYLINE: KEVIN O'HANLON, WORLD-HERALD STAFF WRITER

SECTION: NEWS; Pg. 1

LENGTH: 1022 words

Tuesday's U.S. Supreme Court ruling upholding the jury instructions used in convicting Clarence Victor of murder also closed the door on the latest appeal by convicted murderer Harold Lamont Otey, Nebraska Attorney General Don Stenberg said. In a 7-2 vote, the Supreme Court upheld the instruction used in Victor's case and a California death-penalty case that told jurors criminal defendants must be proved guilty "beyond a reasonable doubt." Victor and Otey are among 11 people awaiting execution in Nebraska's electric chair. Victor was convicted in the 1987 stabbing and bludgeoning death of 82-year-old Alyce Singleton in her Omaha home. Otey was convicted in the 1977 death of Jane McManus, 26, of Omaha.Instructions Troubling While the Supreme Court said the instructions were troubling in places, they did not violate the Constitution. Stenberg, who was attending a conference in Washington, D.C., said the decision dealt a lethal blow to Otey's most recent effort to keep out of Nebraska's electric chair. Stenberg said the decision was one of the most important that will be made by the Supreme Court this year. "A reasonable doubt jury instruction is used in every criminal trial where there is a jury," Stenberg said. "Had the case gone the other way Nebraska . . . would have faced . . . hundreds of criminal retrials. Nationally it would have been in the thousands." In February, Otey filed a notice in Douglas County District Court that he planned to appeal to the Nebraska Supreme Court the denial by District Judge J. Patrick Mullen of Otey's request for post-conviction relief and an evidentiary hearing. In requesting relief and a hearing, Otey contended his conviction and sentence violated the Nebraska and U.S. Constitutions. He also maintained that the instruction on reasonable doubt given to the jury improperly described the state's burden of proof.Rights Not Violated Judge Mullen noted in his denial that Otey's conviction and sentence had been previously upheld. The judge also pointed out that the Nebraska Supreme Court had determined that the reasonable-doubt instruction did not violate Otey's constitutional rights.

1 Thomas Riley, who represents Otey on that appeal, said he was not sure whether Tuesday's decision affected Otey's case as strongly as Stenberg suggested. "But I have to read it (the decision) and go from there," Riley said. The Supreme Court since 1970 has allowed criminal defendants to be convicted only if the evidence establishes their guilt "beyond a reasonable doubt." Defining that concept is more difficult, and the Constitution does not require the use of any particular words, Justice Sandra Day O'Connor wrote for the court in Tuesday's decision. Justice Anthony Kennedy, while concurring with the ruling, expressed concern that parts of the California and Nebraska jury instructions "confuse far more than they clarify." Justices Harry Blackmun and David Souter dissented in Victor's case. The phrase "predominance of potentially misleading language" in the instructions to the jury made it likely that the jury misinterpreted the amount of doubt required to acquit Victor, Blackmun wrote for himself and Souter.Good-Faith Effort In January, Stenberg told the justices that the standard wording used in the jury instruction was a good-faith effort to help jurors understand their responsibility. Some of the disputed phrases - substantial doubt, moral certainty and strong probability - were endorsed by the Supreme Court in past opinions, he said. Taken as a whole, Stenberg said, there is nothing wrong with Nebraska's reasonable doubt jury instruction. Such jury instructions have been called into question by a 1990 Supreme Court ruling that threw out a Louisiana conviction based on "how reasonable jurors could have understood the charge as a whole." The Victor case and a California case involved jury instructions similar to the one used in the Louisiana case. Mark Weber, Victor's lawyer, argued that Victor might have been acquitted of first- degree murder if the jury had not been misled by a judge's instruction that attempted to define the concept of reasonable doubt. Weber said the instruction was unconstitutional because it made conviction too easy and acquittal too difficult. The instructions used to convict murder defendants Alfred Sandoval in California and Victor said a reasonable doubt would keep a juror from deciding "to a moral certainty" that a defendant was guilty. Sandoval's and Victor's lawyers argued that those instructions allowed the defendants to be convicted on an improperly low level of proof.Near Certitude Justice O'Connor said the court was concerned that modern jurors might not understand the phrase "moral certainty" by itself. But she said the full instruction made clear that jurors must "reach a subjective state of near certitude of the guilt of the accused." "Instructing the jurors that they must have an abiding conviction of the defendant's guilt does much to alleviate any concerns that the phrase 'moral certainty' might be misunderstood in the abstract," Justice O'Connor wrote. "At the same time, however, we do not condone the use of the phrase," she said. "As modern dictionary definitions of moral certainty attest, the common meaning of the phrase has changed . . . and it may continue to do so." Weber said his client, Victor, has yet to file a petition challenging whether he was afforded due process of the law.

2 "I'm prepared to do so if the court appoints me" again, Weber said. Weber said he also is considering asking the Supreme Court to rehear the case. Stenberg said he would seek an execution date for Victor as soon as possible. Charles Starkweather, who was electrocuted June 25, 1959, was the last person executed in Nebraska. In June 1991, Otey came within six hours of dying in the state's electric chair before being granted a stay of execution. Successful appeals also followed the setting of an Aug. 6, 1992, execution date.

LOAD-DATE: February 22, 1995

LANGUAGE: ENGLISH