Attorney: Sandoval should get new trial

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By LORI PILGER / Lincoln Journal Star

Before Jose Sandoval walked in the courtroom for his trial for the murder of five people in a Norfolk bank, jurors deemed him guilty, his Norfolk attorney argued Tuesday before the Nebraska Supreme Court.

They were prejudiced by a trial court procedure in which jurors who heard the case were referred to by number, not name, Attorney Ron Temple said, asking for a new trial.

“They were never told why. They were never told that this is to protect you from the media. They weren’t told that this is commonplace. They weren’t told anything,” he said.

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Jose Sandoval

Jose Sandoval

It was reasonable for jurors to assume Sandoval was so dangerous the court had to protect them from him, Temple argued. That infringed on Sandoval’s presumption of innocence, he said, though it was impossible to know the true prejudice.

And there’s no fix, he argued.

“Sandoval was presumed guilty before he even got to the courtroom.”

The state argued the jury’s verdict and the three-judge panel’s five death sentences were supported by the evidence in the case.

No matter what a defendant’s status or the nature of the crime, each is entitled to the same fair trial guaranteed by the Constitution, Temple said.

“It’s not to be given lip service. … It’s not to be talked of with a wink-wink and a nod-nod,” he said.

Minutes later, Judge Lindsey Miller-Lerman asked Kirk Brown of the Attorney General’s Office what he thought jurors made of the number system.

“I don’t see that we are in a position where we can assume a reasonable juror takes away anything, positive or negative, from that,” he said.

It’s not like a Kansas case in which a judge told jurors he was calling them by number because he thought their lives were in danger, Brown said.

“That’s problematic,” he said. “In this case, there was simply nothing done.”

Brown said one could speculate jurors thought bad things, but it’s just as likely, if not more likely, the panel gave it no thought whatsoever. Even if it was an error, it wasn’t the kind that should lead to a new trial, he argued.

“I don’t know of a more public trial in this state,” Brown said. “I don’t know how you spin this into denial of a public trial.”

Sandoval was identified by witnesses as he entered the bank, and a drive-through customer testified that she saw him herd the victims to their deaths, Brown said.

On Sept. 26, 2002, in less than 50 seconds, five innocent people lay suffocating in their own blood — all because of Sandoval, Brown said.

A Hall County jury heard Sandoval’s case in Aurora in 2003 and found him guilty of five counts of first-degree murder and use of a weapon charges.

“No rational argument stands between Sandoval and a finding of guilt. No rational argument stands between Sandoval and a sentence of death,” Brown said.

Numbering the jurors was one of 42 errors Temple alleged in his 100-page brief. On Tuesday, he focused on these key points:

* That Sandoval’s trial counsel, then-Madison County Public Defender Harry Moore, should have been allowed to withdraw from the case when he asked.

*  That Moore offered ineffective assistance of counsel for not bringing a forensic pathologist to trial in the aggravation phase.

* That the trial court erred by accepting a jury finding that the murder was “especially heinous, atrocious, cruel, or manifested exceptional depravity.” He argued the supreme court has limited the use of aggravating circumstances to cases involving sadism, sexual abuse or torture on the victim.

Brown countered, arguing:

* Moore was frustrated about funding and the impact the case had on his office, but there was nothing to indicate Sandoval was being shorted.

* Moore had hired a forensic pathologist, but he backed out at the last minute. Moore chose to go forward rather than seek a continuance to get another expert to address how long victims suffered.

* The aggravating circumstance was directed toward victims’ physical pain, mental anguish and anticipation of death.

“When people around me start dropping, my anguish isn’t going to go down. And when I’m laying there choking in my own blood I’m not going to feel very good about that either. And I think that’s legitimately captured by this aggravating circumstance,” he said.

Reach Lori Pilger at 473-7237 or lpilger@journalstar.com.