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«**»■ *•*. HA UML* FOC
Courts
Continued from Page 1
in their drawer and not make a deci
sion ” Gooch said. “Then again, I could
be dead wrong.”
Not making a decision, in cfTcct,
would be the same thing as saying
“we’re going to let them kill you,” he
said. Otcy’s attorneys could do noth
ing to stop it, Gooch said, and they
could take no further action on that
appeal.
Gooch said the appeal effectively
was the lawsuit that the 8th Circuit
suggested Otey file in 1991. Otcy’s
lawyers had filed a similar complaint
in 1991 but had taken different paths.
The civil rights appeal alleged that
Otcy’s constitutional rights todue pro
cess and equal protection under the
law were violated at a clemency hear
ing before the Board of Pardons. The
appeal argued that Attorney General
Don Stcnbci^ violated Otey’s rights
by voting against clemency as one of
the three membersofthe pardons board.
He also argued against clemency from
the attorney general’s position.
“Nothing is impossible in
the courts. Just highly
unlikely. ”
■
ESKRIDGE
UNL law professor
“A grave qdCstion that the 8th Cir
cuit will look at is if we’re dealing with
some miscarriage ofjuslice,” Eskridge
said.
The fact that the court already has
ruled 2-1 against Otey sets a precedent
that will unlikely be changed, he said.
If Otey is not granted a stay, court
officials said, he has three options:
• request a rehearing with the same
court.
• request an En Banc hearing of the
whole court.
• appeal to the Supreme Court.
Eskridge said an En Banc hearing
was rare. But because of the time
required to assemble the court, he said,
a stay could be issued pending an En
Banc hearing. The court also could
deny the request, he said, or just not
meet in time.
If Otey appeals to the Supreme
Court, Gooch said the case would be
heard by Cl arc nee Thomas, who would
sit in for retired Justice Harry
Blackmun.
“If one reads his (Thomas’) opin
ions and writings, he is as much in
favor of the death penal ty and expedi t
ing it as anyone on the court.” Gooch
said.
“He is the least likely member of
the court to stop an execution,” he said.
“Regardless of merit.”,
Gooch said Otey Yattorneys also
could petition all three courts at the
same time.
Eskridge said with Otey’s judicial
options looking grim, the one thing left
for which to hope was the executive
side.
inc reaj option mai nc twiwy/
has,” Eskridge said, “is he needs one
more vote on the Board of Pardons.”
Eskridge said there was liltlechancc
that would happen.
Stenbcrg certainly won’t change
his mind. Eskridge said, and Gov. Ben
Nelson has made many public state
ments saying he would not stop the
execution.
Otcy’s first execution date was set
for Sept. 25,1978. It has been 16 years
filled with appeals, and that is beyond
the average time span of 13 to 14 years
it lakes a death sentence to be earned
out. Eskridge said.
“If you want to fight a death penalty
case, you ’ re able to fight it for a decade
or more,” Eskridge said.
The fact that appeals can be pend
ing, however, should reduce that lime
frame, he said.
“(Otcy) is probably pushing the
edge.”
Eskridge said he expected an exe
cution, but he said an end to the case
was not certain yet.
“Nothing is impossible in the
courts,” he said. “Just highly unlike
ly.”
Gooch said there were a number of
options available to Otcy beyond the
appeal pending in the 8th Circuit, but
the public defender would not com
ment on those options.