Prosecutor’s closing statements in murder trial crossed line into misconduct, Nebraska Supreme Court says

Prosecutor’s closing statements in murder trial crossed line into misconduct, Nebraska Supreme Court says
Desiderio Hernandez

LINCOLN — The Nebraska Supreme Court said Friday that one of the state’s top prosecutors committed misconduct by making inappropriate comments during closing arguments in a 2016 murder trial.

Judges Lindsey Miller-Lerman and William Cassel underscored their condemnation by saying had it not been for overwhelming evidence of guilt, they would have reversed a murder conviction based on the “serious prosecutorial misconduct” by Assistant Attorney General Corey O’Brien.

Attorney General Doug Peterson has stood firmly in support of O’Brien, who heads the office’s criminal prosecution division.

“The Attorney General’s Office understands and will abide by the court’s guidance articulated in today’s opinion regarding prosecutorial conduct,” said Suzanne Gage, Peterson’s spokeswoman.

O’Brien self-reported the incident earlier this year to the Counsel for Discipline, the state office that investigates allegations of professional misconduct against lawyers. No discipline against the prosecutor has resulted from that complaint so far.

The court’s ruling stems from closing arguments made during the 2016 trial of Desiderio Hernandez in Richardson County District Court. Hernandez is serving a life prison term for first-degree murder in the shooting of his cousin, Joseph A. Debella Jr., in Falls City.

During closing arguments at the end of a five-day trial, O’Brien said there were no words to describe “the senseless(ness), the heartlessness, the disgusting acts committed” by Hernandez and others in the case. And he referred to associates of Hernandez as “vermin, riffraff, and lowlife people, so low that they would let a bleeding man lie on the floor.”

The prosecutor also said it “made me sick” to have to call as witnesses certain individuals whose credibility was questionable at best.

“We agree with Hernandez that all of these statements constitute prosecutorial misconduct,” the court’s opinion stated.

The court explained that the offending comments reflected the prosecutor’s personal opinions and were not based upon evidence presented during the trial.

In prior cases, the Supreme Court has ruled that prosecutors have a duty to try cases in a manner that is fair and impartial. While a prosecutor may “strike hard blows, he is not at liberty to strike foul ones,” the court has said.

“Prosecutors also may not inflame the jurors’ prejudices or excite their passions against the accused,” the court wrote in Friday’s opinion.

But the judges rejected Hernandez’s argument that the prosecutor’s statements should have resulted in a new trial. They pointed to ample evidence of the defendant’s guilt, including his own confession to investigators and to close relatives.