Wednesday, April 16, 2014

Facing Execution, Nikko Jenkins Continues His Bizarre Legal Journey

Nikko Jenkins told everyone he understood.

He understood he was giving up his right to a trial.He understood he was admitting to the murder of four people.He understood what happened in court could land him on death row.

Just when everyone thought, "okay, this should wrap things up," Jenkins started back-tracking, bobbing, weaving, and (I say this without fear of libeling or slandering the man) talking crazy. 

By the end of this day in court Nikko Jenkins talked his way into, at the very least, a lifetime in prison without parole and the prospect of being executed by the State of Nebraska.

He entered the court room of Judge Peter Bataillon demanding to enter a guilty plea to four counts of murder, being in possession guns and using them to commit the crime. Two hours later, stretching the patience of judge and prosecutor, Jenkins changed his mind again, pleading no contest to every count. It gave the judge the authority to pronounce him guilty on all counts.

Nikko Jenkins (Douglas Co Corrections)
Jenkins did it his way. The people who could have helped, the defense attorney "advisors" from the public defenders office, stayed close but stayed silent. The confessed killer wanted to serve as his own attorney. He wanted to explain the murders.

And what an explanation.  

The judge asked him if he killed his first two victims. "My physical person may have been there but I was not in that spiritual moment."  Jenkins claims he was moved to kill when he "heard the voice of the underworld god. That's who assassinated these individuals." It all has something to do with the "War of Revelations."

Growing more agitated as he spoke of each of the murders, Jenkins told the court he recalls seeing the victims before they were murdered but doesn't remember firing the shots or seeing their bodies. At times during his explanation he slipped into speaking in tongues or some sort of unidentifiable language. (Todd Cooper of the World-Herald earlier wrote it was the language of Jenkins personal "serpent god" Opophis. I have no reason to doubt that.)

The confession Jenkins gave to police after his arrest did not place as much of the blame on Lucifer and Opophis, according to Douglas County Attorney Don Kleine.

If there is any temptation to smirk at the absurd and surreal courtroom antics, its necessary to remind oneself why Jenkins was here. Jenkins killed four people within ten days.

The first two execution-style murders made the news barely two weeks after the Nebraska Department of Corrections released Jenkins from prison. Juan Uribe-Pena and Jorge Cajiga-Ruiz were shot in the head while sitting in a pick-up truck in South Omaha. A week later a man who became friends with Jenkins in jail, 22-year old Curtis Bradford, was found outside a garage in a residential neighborhood on the north side. Two days later on the city’s west side Andrea Kruger, a waitress heading home after her shift, was shot to death and her SUV stolen. It took a few days for Omaha police to make sense out of three seemingly unrelated homicides and pull together the evidence tying them all back to the recent parolee, Nikko Jenkins.

Always methodical prosecutor Kleine laid out the details of each murder in court today. It was a 30-minute summary of what would have been presented over two or three weeks had the case gone to trial. The autopsies. The ballistics tests. The witnesses. The confessions. (Jenkins apparently killed Ms. Kruger to steal her SUV because he wanted a nice car to drive to an upcoming Lil' Wayne concert.)

Jenkins interrupted Kleine a couple of times to have him repeat descriptions of the victim’s wounds. That was too much for the family of Curtis Bradford, who fled the courtroom in tears. 

To accept Jenkins guilty plea Judge Bataillon needed the accused to say he accepted as fact statements made by the county attorney.  Jenkins wouldn't do it.  "Everything he said is completely false," said the man who started the day telling the court he was guilty. 

Clearly frustrated, the Judge changed course and asked Jenkins if he would be willing to submit a no-contest plea instead of admitting his guilt. Yes he would, but....

Jenkins launched into a rehash of claims about being treated unfairly, violations of his constitutional rights, and accusations against police involved in the murder investigation. As he spoke the five sheriff deputies providing security moved in closer to the fidgety defendant. 

The judge had enough. He cut Jenkins off in mid-sentence telling him if he had complaints he wanted to share with the world to contact the media and "do it on your own time."

A few minutes later, Jenkins was found guilty of four counts of murder.

Jenkins had one more choice to make. Should a judge or a jury decide if he deserved to be executed?  The U.S. Supreme Court says anyone facing a death sentence gets a hearing to weigh factors favoring the death penalty (like the cruelty of the crime) against factors favoring mercy (like not having a prior criminal record). Jenkins chose to leave it up to the judges. 

County Attorney Kleine leaves court (Photo: Kelly)
Judge Bataillon all but begged Jenkins to turn over his case to the public defenders office for this stage of the proceedings and stop trying to represent himself in court. It was clear throughout the day Jenkins had no grasp of the most basic legal procedures. 

Jenkins continues to insist he can go it alone. At a hearing in March Judge Bataillon warned him it’s a job that “would be very difficult for any lawyer.” Jenkins didn’t flinch. “I understand all those risks.” While mental heath experts had serious doubts about the man’s grasp on reality, Jenkins insisted he was “intellectually able” to represent himself. Back in court a couple weeks later the scope of his intellectual abilities was on full display as he swore at the judge, mocked the prosecutors, laughed manically when asked if he was competent, and howled at the bank of cameras in the hallway when being lead back to jail.  

It's likely that Jenkins' mental health will come up for discussion again. He stated repeatedly in court that he's schizophrenic and two doctors came to the same conclusion. Three other psychiatrists doubt that diagnosis and indicated he's a man capable of playing deranged to work the system.

Leaving the courtroom, in the few seconds Nikko Jenkins appeared before the wall of waiting TV cameras, he shouted out something or other in the language of his serpent god, disappearing behind a door on his way back to jail.

Friday, April 4, 2014

READY OR NOT NEBRASKA: Itty-bitty Sedgwick, Colorado welcomes recreational pot

Nebraska law enforcement knew it was inevitable. 

Nebraska marijuana tourists say it can’t come too quickly.

The arrival of a recreational marijuana outlet on the Nebraska/Colorado border appears to be just weeks away. 

On April 1st the citizens of Sedgwick, Colorado (or at least the 27 who voted yes in the tiny town) approved new taxes for wholesale and retail sales of marijuana.

The owner of Sedgwick Alternative Relief plans to drive to Denver Monday to file an application to expand his medical cannabis operation, including over-the-counter sales to any legal buyer who wants it. State regulators must act on the paperwork inside a 45 to 90 day window. Owner Mike Kollartis, recently received permission to operate at another location closer to Denver. He’s cleared the security background already and expects quick approval of the application.
Product on display at Sedgwick Alternative Relief
As NET News reported last summer, Nebraska law enforcement officials have been wary of the Sedgwick operation from the first day it opened. To date, there have been no reports linking the store to illegal sales. A larger concern is the legal sale to out-of-state residents who will try to bring it across the border illegally. 

“It’s going to be a problem,” Duell County Sheriff Adam Hayward told me in June.  “You’re going to see a lot more people from back east or up north pick it up and turn around because you know it shortens their drive time by four hours.”

The town of Sedgwick embraced being northeastern Colorado’s only pot outpost. Tax dollars from the current sales already enriched the municipal budget. 

On Tuesday voters approved a five dollar sales tax on individual pot purchases and additional surcharges on future bulk marijuana sales from the planned indoor pot-farming operation. Combined the taxes could add tens of thousands additional dollars to the Sedgwick treasury. 

Official tally from Sedgwick pot tax vote
Opponents to expanding marijuana were swamped at the polls. Only four of the 31 people who cast ballots voted against the new taxes.

The store manager estimates sales could average at $2000 a day. There is no reliable estimate of how much revenue will come from Nebraskans taking advantage of the neighbor’s relaxed laws. As of January 1st out-of-state visitors over the age of 21 can legally purchase and carry ¼ ounce at a time. Sedgwick is a three mile drive off I-80 and six miles from the border by the county roads south of Chappell, Nebraska. Last year I asked both the Nebraska State Patrol and the state's Attorney General if if would be useful to launch a public information campaign reminding residents that  using legally in Colorado didn't translate to bringing it back to Nebraska for private use. Both said they didn't consider that approach as useful.

The owners of the Sedgwick store are already planning ahead. Initially sales will continue in the double-wide trailer placed on a vacant Main Street lot. The building next door has already been purchased and plans in the works for its renovation into a combination grow-house and significantly expanded marijuana retail operation.

Tuesday, April 1, 2014

Will the definition of “Graffiti” derail a Nebraska hate crime case?

An ugly little purported case of racial bigotry started small. It’s become a big deal at the Scotts Bluff County courthouse in Nebraska’s panhandle.
This week a judge is reviewing a county court’s decision to toss out a hate crime case involving local high school students. At issue is the legal definition of graffiti.
Seeing the case in limbo for what one newspaper writer called “a technicality” angered people in Gering and Scottsbluff. Many were already hurt and embarrassed by the incident. Some are trying to make things better outside the courtroom.
Isaiah Wilson (Courtesy Photo)
It started last October, in the Scottsbluff High School parking lot during a volleyball game, with crosstown rival Gering High. The car of a biracial student from Gering was vandalized. The racially charged “N-word” had been written with “window chalk” seven different times on a car belonging to student Isaiah Wilson. Big-hearted and popular, he is a fixture on the basketball team and in school plays. The principal at Gering High School told the Scottsbluff Star-Herald “this went beyond a school prank. This was a hate crime.” The county attorney agreed.
Police arrested 18-year-old Alysha Schwartzkopf. She was charged with violating the state’s graffiti laws, but with an enhancement because the choice of word took it to the level of a hate crime.
If you did an online search for Schwartzkopf prior to her arrest the only articles you found were about her accomplishments as an honors student and soccer player at Gering High. Her ‘selfie’ photos are all smiles and teenaged goofy.
The trial took place in February, with County Court Judge James Worden presiding. Schwartzkopf’s attorney, Todd Morten, claimed the graffiti didn’t rise to the level of a hate crime, since it grew from a $5 bet between friends resulting in a bad choice. “Maybe (using the N-word) is mean, careless, reckless and hurtful, but that doesn’t make it a crime,” Morten told the judge during opening statements.
The court heard about three hours of testimony that day. On the witness stand for the prosecution, students testified Schwartzkopf vandalized the car to retaliate against Wilson. His offense? A couple of weeks earlier the girl’s cousin also used the N-word, but to Wilson’s face. The school suspended her cousin and the pair wanted revenge.
Isaiah Wilson also took the stand. He claimed no one had ever used that racial insult to him prior to hearing it from the cousin. Faced with it again, written on his car just a few days later, it made him mad.
That’s pretty much all the court heard. All of a sudden defense attorney Morten asked the judge to throw out the case. He claimed the vandalism law at the heart of the case did not apply. The legal definition for graffiti, he pointed out, specifies its appearances on buildings, or walls, or fences. It doesn’t mention cars. Judge Worden agreed. The charges against Schwartzkopf were dismissed.
Judge Worden's ruling from the court record.

That day the Scottsbluff Star-Herald ran an editorial entitled “We’re Sorry.”

“Isaiah, we’re sorry.
It’s important for you to know that many people who learned about this dispiriting incident are deeply ashamed and dismayed about what happened to you. From what we’ve read, you don’t harbor a lot of hatred in your heart. You still deserve better than this. We wish that more people could purge the ugliness from their own hearts, or at least keep it to themselves.”

Kay Grote wrote a column in the Gering Citizen a few days later:

“A technicality of state statute dashed the hopes of justice and closure for Isaiah Wilson, his family, many friends and supporters. A failed verdict and a flawed statute in the case left the community wondering what to do. But I’m moved to caution in this column, don’t let the anger at the outcome lead to more hate. The real challenge now becomes loving our enemies.”

From the IsiahWINS Facebook page.
If the act was intended to diminish the victim in the eyes of the community, it seems to have backfired. Individual residents came forward, moved by the quiet character shown by Isaiah Wilson during his unwelcome time in the spotlight. 
Phil Kelly, a panhandle lawyer (and no relation to this writer), set up a scholarship fund for the young man. He told Steve Frederick, editor at the Star-Herald, “as a community, we should send a message that we’re better than that.” More donations from the community started arriving. An “Isaiah Wilson WINS” Facebook page attracted hundreds of supporters.
Case closed? Not quite. The Scotts Bluff County attorney has appealed to the District Court. The prosecutor argues graffiti that ended up defacing Isaiah Wilson’s car is included in Nebraska state law. This is from the statute titled 28-524. Graffiti; penalty.

 (6) For purposes of this section, graffiti means any letter, word, name, number, symbol, slogan, message, drawing, picture, writing, or other mark of any kind visible to the public that is drawn, painted, chiseled, scratched, or etched on a rock, tree, wall, bridge, fence, gate, building, or other structure.

But earlier in the statute the law refers to “graffiti of any type on any building, public or private, or any other tangible property.” The appeal hinges on whether Wilson’s car is “tangible property” or, as one county judge and one defense attorney believe, the state’s definition remains vague enough to provide Schwartzkopf a way out.
Both sides have filed arguments and the judge in the higher court is reviewing the case. A ruling should be issued in a couple of weeks.

Thursday, March 27, 2014

Nebraska Same Sex Divorce Case Re-ignites Challenge to Constitutional Ban

Two same-sex divorce cases working their way through Nebraska courts have provoked the first major challenge to the state’s ban on gay marriage since 2006. NET News broke the story this morning. (Read about it here).

It is surprising a big-deal case involving same-sex divorce had not surfaced in Nebraska years ago. Voters defined marriage as exclusively the right of a man and a woman fourteen years ago. The amended Constitution won the approval of the United States Court of Appeals of the Eighth Circuit in 2006. The three-judge panel ruled Nebraska had a right to decide who could legally marry.

                                                                    Photo: Getty Images
The new and unexpected challenge comes with the filing of Nichols v. Nichols. The case moved through Lancaster District Court and into the state’s appellate system completely off of media and legal radar. 

Stealth was fine with the couple involved.  They only seek a divorce decree not a place in history, according to their attorney Megan Mikolajczyk. It just so happened their case veered into “uncharted" waters according to the lower court judge unable to legally end their marriage.

It’s likely the case will bypass the Court of Appeals. It appears to be “a case of first impression” involving Constitutional questions, which often remains the domain of the state’s Supreme Court. A ruling could either change or a reinforce Nebraska’s gay marriage ban at a time when federal judge’s have rejected similar laws around the country left and right.

One other same-sex divorce case in the state made the news before the NET News story. In 2011 two Nebraska women, hitched in Vermont, sought dissolution of their marriage in Otoe County. District Judge Randall Rehmeier ruled he couldn’t do it, yet he approved the couple’s custody agreement for their daughter. They did not appeal so the ban was not challenged.

Divorcing gay couples may be routine in states where it’s legal (did you hear about Olympic ice-skater Johnny Weir?!) but few cases make the news in states where same-sex marriage remains legally taboo. 

It’s been written that getting a same sex-divorce is more complicated than a same-sex marriage. Rebecca Yorkston agrees.  She told me “it is an irony that a divorce is likely to play a part in marriage equality.”

Hers is one of two active divorce cases in Nebraska making a direct assault on the constitutional ban. The case is in the hands of the Lancaster County District Court. The couple listed Nebraska Attorney General Jon Bruning as a party in the their divorce. This allowed them to ask the court whether the ban infringes on their Constitutional rights. (The Attorney General had the option to file a response explaining why maintaining the ban was in the state’s interest. The deadline passed and nothing has yet been filed with the court. We asked his office why but got not response.)

Yorkston’s marriage started out exhilarating. Across the Missouri River in Iowa, same-sex couples lined up at county courthouses to take advantage of the historic nuptial law. Yorkston and her partner wanted to be part of it. Of course, when everything is great, couples never consider other options if they need to extract themselves from a marriage gone bad. “It never occurred to me,” Yorkston said.  “In part it never occurred to me because I never thought I was going to get divorce.  But it didn’t occur to me either that once I went to dissolve the relationship that it was not a possibility; that I could not end the relationship.”

And Nebraska says she can’t. The only other option would be getting it done in Iowa, but she or her wife would be required to establish residency in Iowa for at least a year. Quitting jobs and moving was hardly a desirable option. “They will marry you but they won’t divorce you,” she said when we talked on the phone. “That was quite a shock.” Her attorney and the ACLU of Nebraska intend to file briefs in support of the Nichols divorce.

Residents of some other states do give same-sex couples an escape route. Wyoming and Arizona are the only two that do not allow gay marriage but have law accommodating gay divorce. The state Supreme Court in Texas heard a same-sex divorce case similar what’s on deck in Nebraska.  No ruling has been issued, but as the justices there worked through the issue a Federal District Court judge declared the state’s law banning same-sex marriage was unconstitutional.

Strong advocates in support of traditional heterosexual weddings.  Attorney General Bruning (now a candidate for governor) recently re-affirmed his support for heterosexual marriage.  In January he joined other State Attorneys General in a federal court brief arguing in favor of a similar ban in Nevada.  Bruning and ten others wrote that “no fundamental right to same-sex marriage exists. The theory of traditional civil marriage, that is, turns on the unique qualities of the male-female couple for procreating and rearing children under optimal circumstances. As such, it not only reflects and maintains deep-rooted traditions of our Nation, but also furthers the public policy of encouraging biological parents to stay together for the sake of the children produced by their sexual union.” Nevada's governor and attorney general have since abandoned the case.

All indications are public opinion has changed dramatically since the state voted to add Amendment 29 to the state’s Constitution. In the year 2000 seven out of ten Nebraska voters agreed limiting marriage to one man and one woman was the right thing to do. In 2012 a poll taken by the Omaha World-Herald revealed 54 percent of the people asked approved of either same-sex marriage or civil unions.