Nebraska's statutory crime of Second Degree Murder has become known as the crime of "Shooting While Black." It is strange that the "Black Lives Matter" movement has not noticed or spoken out about this. The statutory crime has imposed more severe punishment upon blacks than whites because it can be arbitrarily enforced. The Nebraska Supreme Court's back-and-forth rulings only evade this federal constitutional flaw in the law. Their most recent evasion could result in permitting people who actually commit the crime to escape punishment for their intentional killing.

Nebraska continues to maintain the 19th century definitions of homicide, including the use of a sudden quarrel as a material element of the lesser crime of manslaughter. That means Nebraska still requires the prosecution to prove beyond a reasonable doubt that element of a sudden quarrel to convict a person of intentional or voluntary manslaughter. The statutory definition of Second Degree Murder is: intentionally causing the death of another without premeditation. But intentional manslaughter is just: intentionally causing the death of another without premeditation, but where the intent to kill is the result of a sudden quarrel. Even a person untrained in the law can see that the only difference between these two crimes is whether there is a sudden quarrel or not.

Nebraska's Second Degree Murder statute does not require the prosecution to prove there is no sudden quarrel to get a conviction. But the Constitution guarantees an accused: (1) no burden of presenting any evidence, and (2) no burden of proving the material element of a sudden quarrel. Any prosecutor can arbitrarily get a conviction for Second Degree Murder simply by choosing to not present any evidence of a sudden quarrel, even where the crime actually committed is only manslaughter.

In 1994 the Nebraska Supreme Court finally recognized a problem existed. But their response was to add the element of "malice" to the definition of Second Degree Murder in State v. Myers. Shortly thereafter they decided "intent" would no longer be an element of Manslaughter in State v. Jones. Then they admitted the Court did not have the power to add "malice" in State v. Burlison, overturning their Myers ruling. They would wait until 2011 to overturn Jones in State v. Ronald Smith. The Smith Court decided that a jury must be instructed that the State also has to prove there is no sudden quarrel beyond a reasonable doubt to obtain a conviction for Second Degree Murder.

Ronald Smith did not get the benefit of this change in the law because the Nebraska Supreme Court made its own finding that there was insufficient evidence of a sudden quarrel. The Court never says what standard of proof the evidence was "insufficient" to meet. Two important facts to keep in mind are (1) that Smith's trial court judge found the evidence of a sudden quarrel was sufficient to give the jury an instruction on sudden quarrel Manslaughter, and (2) normally an appellate court does not reweigh the evidence and take the place of a jury. Thus, Smith was cheated out of his right to have the jury find all the necessary facts beyond a reasonable doubt to convict him of Second Degree Murder. His conviction was affirmed despite the Court's admission of the constitutional error in the jury instructions.

This change to the criminal law adding another fact that the State must prove beyond a reasonable doubt is called a "substantive" change and must be applied retroactively to cases that came before that decision. But recently, in State v. Glass, 298 Neb 598 (2Ol8), another defendant was cheated out of this retroactive change in the law. The Glass Court said this was only a "procedural" change because it simply required the jury to consider Second Degree Murder and sudden quarrel Manslaughter simultaneously. The Glass ruling was worse than wrong.

The Glass Court identified that the U.S. Supreme Court defined what a "substantive" change in the law was in Montgomery v. Louisiana, 136 S.Ct.

718 (2016):

Substantive rules include ... "'rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.'" ... Such rules apply retroactively, because they "'necessarily carry a significant risk that a defendant ... faces a punishment that the law cannot impose upon him or her.
Glass, supra, 298 Neb at 608

The Glass Court would not admit that Smith had prohibited a certain category of punishment; i.e., a life sentence for Murder; for a class of defendants whose offense was only Manslaughter. The new Smith rule should be applied retroactively because of the significant risk a defendant could face the punishment for Second Degree Murder that the law cannot impose upon them when their crime is only Manslaughter. Instead, the Glass Court said the Smith decision merely set out a new "procedure" to distinguish between Second Degree Murder and Manslaughter.

The Glass Court preyed upon those ignorant of the legal distinction between "substantive" and "procedural" changes to the law. They ignored the reality of the U.S. Supreme Court's decisions explaining the distinction:

To be sure, Miller's holding has a procedural component. Miller requires ... [a procedure to be followed] before determining that life without parole is a proportionate sentence. Louisiana contends that because Miller requires this process, it must have set forth a procedural rule. This argument conflates a procedural requirement necessary to implement a substantive guarantee with a rule that "regulate[s] only the manner of determining the defendant's culpability." ... There are instances in which a substantive change in the law must be attended by a procedure that enables a prisoner to show that he falls within the category of persons whom the law may no longer punish. ... For example, when an element of a criminal offense is deemed unconstitutional a prisoner convicted under that offense receives a new trial where the government must prove the prisoner's conduct still fits within the modified definition of the crime. ... Those procedural requirements do not, of course, transform substantive rules into procedural ones.

Montgomery v. Louisiana, 136 S.Ct. at 734-35 Also, a substantive rule is a rule that "modifies the elements of an offense."

Schriro v. Summerlin, 542 U.S. 348, 354 (2004) "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Schriro, supra, 542 U.S. at 353. "This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the state's power to punish."

Welch v. U.S., 136 S.Ct. 1257, 1264-65 (2016)

But that is precisely what the Glass Court did. They added a new element to the definition of Second Degree Murder and then said that a jury instruction which required proof of that new element was just a procedural change. Yet this procedural requirement of adding the new element for Second Degree Murder to a jury instruction does not turn the substantive change in to just a procedural One. Glass was cheated out of his federal constitutional right to the law.

The Smith decision did NOT say the Court added a new element to Second Degree Murder nor did it tell us what a correct jury instruction must say. That was done in State v. Hinrichsen, 292 Neb 611, 622 (2016)(Smith clarified the elements of second degree murder and voluntary manslaughter.) "The jury was instructed that the elements of second degree murder were that the killings occurred (1) intentionally (2) without premeditation and (3) not upon a sudden quarrel." Id., supra, 292 Neb at 620. The State had to prove these elements beyond a reasonable doubt.

The Smith Court shifted a burden of proof to the defendant, saying: In the context of this case, Smith was prejudiced by the erroneous jury instruction only if the jury could reasonably have concluded on the evidence presented that his intent to kill was the result of a sudden quarrel. Smith, supra, 282 Neb at 735

The new jury instruction required the State to meet the heavy burden of proving beyond a reasonable doubt that there was NOT a sudden quarrel. That is easy to do when no one presents any evidence of a sudden quarrel. But the prosecutor has a choice of whether to present evidence of a sudden quarrel or not. Presenting no evidence of a sudden quarrel actually shifts the burden of evidence to the defendant, which is unconstitutional, because the sudden quarrel is an element.

When there is only some evidence of a sudden quarrel the Smith decision blows a hole through Nebraska's homicide definitions. With some evidence, an honest jury could agree there was an intentional killing without premeditation, but then decide the State had failed to meet its heavy burden of proving there was NO sudden quarrel. That jury would acquit the defendant of second degree murder and then consider the manslaughter instruction. Now the State has another heavy burden of proving beyond a reasonable doubt that the sudden quarrel actually took place. That honest jury can now agree that, despite some evidence of a sudden quarrel, there is not enough evidence to prove that material element beyond a reasonable doubt. The jury then has to acquit that defendant of manslaughter too. The State can fail both those heavy burdens when there is only some evidence of the sudden quarrel but not enough to reach either high standard of "proof beyond a reasonable doubt." That defendant, who all the jurors agree has intentionally killed without premeditation, goes free. That is the hole through homicide created by the Smith decision.

The consequences of the arbitrary enforcement permitted by the Second Degree Murder statute shows up in how the Nebraska Courts actually mete out justice and enforce the law. The Nebraska Supreme Court's back-and-forth changes to the criminal statute have not stopped the arbitrary and discriminatory enforcement of it. The Court has never been authorized to make changes to the elements of criminal offenses in Nebraska; all crimes are statutory, created only by the Legislature. The Nebraska Supreme Court's decisions like Glass and Smith are violations of our law and Constitutions. Does that lead to a racist result? Consider this: Myers, Jones, Ryan, and Burlison; all white defendants and all are no longer in prison in Nebraska today. Thomas, Iromuanya, Trice, William Smith, and Glass; all black defendants and all are still in prison in Nebraska today.

If you ask how can this happen, consider the Nebraska pattern jury instruction that defines "sudden quarrel" for jurors. Sudden quarrel is defined as how a "reasonable person" would think and react. Nothing prevents jurors from looking at a black or Hispanic defendant, perhaps one accused of being a gang member, and thinking, "That is not a reasonable person," "That is not how I would react." It no longer matters how the defendant actually thought or reacted. The jury is free to decide such a defendant is by definition NOT a "reasonable person." The U.S. Supreme Court has decided that jury instructions that define crimes based on what "reasonable persons" do, are inadequate.

See, Elonis v. U.S., 135 S.Ct. 2001, 2011-12 (2015). Unless the public is watching closely they will not see how the Nebraska Supreme Court's manipulations violate the law, our Constitutions, and people's lives.