Held hostage, a mother and her 7-year-old son waited to die for more than an hour.
One at a time, Jaqueline and Christopher Szczepanik were walked down a dark hallway — makeshift shrouds covering their heads.
Despite begging for their lives — Jaqueline cried out, “Dear God, don't kill me” — they were hanged.
Though little Christopher was unconscious, his heart kept beating. So his killers dragged his body next to his mother's, until his heart eventually gave out.
Yet the deaths of those innocents weren't considered to be especially heinous or cruel.
A Douglas County judge concluded so — after prosecutors made a strategic decision not to argue for the aggravating circumstance.
Both the judge's decision and the prosecutors' strategy were rooted in the unraveling of an aggravator that once was the go-to factor for prosecutors pursuing a death penalty.
Especially heinous, atrocious or cruel. Exceptionally depraved.
Those terms are, by far, bandied about the most in discussions of Nebraska's worst killers: cult leader Michael Ryan, child killer John Joubert. And those terms are, by far, the subject of the most appeals, the most scrutiny from appellate courts that ultimately decide what juries can and cannot consider, legal experts say.
The issue is so thorny, so thoroughly litigated, that prosecutors in the state's largest county decided to avoid it in the killings of the Szczepanik family.
A leading state senator says that's a problem.
“It's revealing,” said State Sen. Brad Ashford, chairman of the Legislature's Judiciary Committee. “That tells me there's a policy problem. And the question becomes, 'Are we just going to continue to slog through it with every case?' Or is there something we can do legislatively? That's worthy of looking at.”
The issue has come into focus since juries became part of the death penalty phase in 2002 in Nebraska. Jurors were given an awesome yet limited power: whether to find that aggravating factors exist that might merit the death penalty. Their findings are reviewed by a three-judge panel that ultimately decides whether a defendant should be sentenced to death.
As district courts try to clarify the process for everyday citizens on juries, the Nebraska Supreme Court has zeroed in on several recent cases that have used an alternate definition for the meaning of especially heinous and cruel.
Namely, with the guidance of an Arizona ruling, district courts have allowed juries to consider the “mental anguish” of the victim — “a victim's uncertainty as to his ultimate fate.”
Big problem: “Mental anguish ... does not have any basis in Nebraska law,” the Nebraska Supreme Court ruled.
In turn, that mental anguish instruction was ruled in error in three cases where the death penalty was being considered. And it ultimately derailed prosecutors' attempts to obtain the death penalty in one of those cases.
» Jose Sandoval
Sandoval shot and killed three people — Jo Mausbach, Sam Sun and Evonne Tuttle — in the September 2002 Norfolk bank robbery. Prosecutors argued that the victims endured mental anguish because they watched and waited as the gunman systematically executed their co-workers and friends. They also pointed out that Sandoval reportedly smiled at the victims before shooting them. Pointing to the “mental anguish” instruction, the Nebraska Supreme Court overturned the finding that the deaths were especially heinous and cruel. The court, however, upheld Sandoval's death sentence based on other factors.
» Roy Ellis
Jurors found that Ellis, 58, had killed 12-year-old Amber Harris and buried her in a shallow grave in Hummel Park. Jurors were instructed to consider the mental anguish of a 12-year-old who was abducted after getting off an Omaha school bus, driven to Hummel Park, sexually assaulted and killed — apparently by blunt-force trauma to the head. The high court said it would have ruled the “mental anguish” instruction improper — had Ellis' appellate attorneys raised the issue. Despite that determination, Nebraska's high court upheld Ellis' death sentence because of other factors.
» Melecio Camacho-DeJesus
The 32-year-old was convicted in the May 2009 rape and smothering of a 3-year-old South Sioux City girl, Evelyn Verdugo Paniagua. After convicting him, jurors were instructed to consider the mental anguish of little Evelyn. Then the decision in Sandoval came down before Camacho's three-judge panel could convene. The three-judge panel ruled that it could not consider the “especially heinous and cruel” aggravating factor because the “mental anguish” instruction had been given. Absent any other aggravators, the panel sentenced Camacho to life in prison, instead of death.
The Nebraska Supreme Court has noted that it has “narrowed the phrase 'especially heinous, atrocious or cruel' to include murders involving torture, sadism or sexual abuse.” The term “mental anguish” does nothing to distinguish one murder from another, the court ruled.
“Most, if not all, victims who are conscious before their death would suffer mental anguish as to the uncertainty of their ultimate fate,” the court wrote. “All victims threatened by a deadly weapon would have uncertainty as to their ultimate fate ... (It) is not a meaningful distinction between cases that warrant the death penalty and those that do not.”
Which brings us to the Brazilians' case.
Douglas County Attorney Don Kleine charged three workers with the beating death of their boss, Vanderlei Szczepanik, and the hangings of Jaqueline and Christopher. He filed the especially heinous and cruel aggravator — seemingly a no-brainer, he noted, when it came to the hangings of a mother and child.
Then his trial prosecutors, Jim Masteller and John Alagaban, researched the case law and found problems with the “mental anguish” instruction that had been attached to the especially heinous and cruel factor.
Plus, prosecutors had three other aggravating factors: The killings were committed for financial gain and to cover up a crime, and involved multiple murders.
They decided not to argue the especially heinous factor — and simply submitted it for the judge's consideration. A defense attorney, Todd Lancaster of the Nebraska Commission on Public Advocacy, argued that the killings weren't heinous and cruel. He pointed out that mental anguish could not be considered. And there was testimony from a coroner's physician that the hangings rendered Jaqueline and Christopher unconscious within 10 seconds.
Douglas County District Judge Thomas Otepka declined to allow jurors to consider whether the deaths were “especially heinous and cruel.” Jurors then took just 20 minutes to find three aggravating factors that now have Jose “Carlos” Oliveira-Coutinho facing a three-judge panel to determine if he deserves death.
“It's a question of, 'If we don't need to go there, then why go there?'” Kleine said. “Because it's obviously created a significant appellate issue that the courts have been dealing with for years and haven't resolved. Whenever you're looking at these horrible, terrible murders — to say one's worse than the other — it gets to the point where it almost seems like an absurdity to figure it out.”
Many of the other aggravating factors, including that the killer had a violent history, are factual findings.
But the “especially heinous and cruel” factor is so subjective that it lends itself to endless litigation, defense attorneys say. In 1988, the U.S. Supreme Court struck down the same terminology in Oklahoma — saying it doesn't give “specific and detailed guidance” to help distinguish the worst killers. Nebraska's Supreme Court has yet to follow suit.
“That aggravator is the most litigated aggravator not just in Nebraska but in all the other states that have it,” Lancaster said. “It's a catch-all that prosecutors like to file. But what killing is not senseless or heinous? It's so broad and vague.”
The question is whether lawmakers will try to further define it. Ashford said the issue ought to be discussed, though he acknowledged that opposition probably will come from death penalty opponents who resist any tweaks that might make it easier to impose the death penalty.
State Sen. Mike Flood of Norfolk — the outgoing speaker of the Legislature — said he, too, believes the issue should be revisited. He said anyone would be hard-pressed to argue that the September 2002 executions of five people inside the U.S. Bank in Norfolk weren't especially heinous or cruel.
“If the courts want more of an explanation of what constitutes especially heinous and cruel, the Legislature ought to provide it,” Flood said. “The public knows it when they see it. That's easy to say as a politician. It's harder, I think, when you're an appellate court trying to sort through all of these cases.”
Tatiane Klein wondered why it's so difficult. Klein noted the horror her mother and brother went through that December 2009 day.
Jaqueline witnessed her husband's beating death, and was punched in the face as she tried to intervene. The killers then stuffed Jaqueline and Christopher into the bedroom of one of the killer. They bound her wrists and gagged her while they made her sign blank checks. Jaqueline at one point persuaded one of the killers to untie her, only to be tied up again. They ordered her not to scream, saying: “You know what will happen to Christopher.” They made her wait more than an hour — all the while ignoring her pleas for her and her son's life.
They then slipped a pillowcase over her head and walked her down a long hallway to a stairwell. They slipped a noose over her head and shoved her to her death, by hanging. They did the same thing with Christopher — covering his head with a Thomas the Tank Engine bedsheet. The 7-year-old also begged for his life, but the killers claimed that they couldn't understand English.
“What could be worse?” Klein asked. “The mental torture, the psychological torture, was far worse than the physical. It was an eternity of torture.”
Contact the writer: 402-444-1275, email@example.com