The ruling found that Florida’s system of allowing a judge, rather than a jury, to ultimately decide whether a defendant gets the death penalty violated the Sixth Amendment to the U.S. Constitution, which guarantees the right to a jury trial.

While Florida’s system of handing down a death sentence is similar but not identical to Nebraska’s, Lincoln defense attorneys Jerry Soucie and Spike Eickholt both said they think the high court’s ruling applies to Nebraska.

“Certainly, this puts our now-repealed statutory scheme in doubt,” said Eickholt, whose clients include two groups opposed to the death penalty, Nebraskans for Public Safety and the ACLU of Nebraska.

Douglas County Attorney Don Kleine on Monday said he was still reviewing the ruling but did not think it would affect Nebraska.

The Nebraska Attorney General’s office issued a statement Monday night saying that Nebraska’s system is significantly different from Florida’s and that it does not believe that the ruling applies here.

Two other legal authorities, Creighton law professor Michael Fenner and Robert Dunham of the Death Penalty Information Center in New York City stopped short of saying that the ruling undercuts Nebraska’s system. But they said at the very least, it opens up a new avenue for appeals by defense attorneys.

“On its face, it seems to allow a judge to ignore findings of a jury,” Dunham said. “That’s something that invites a legal challenge and will have to be sorted out by the court.”

That, he and others said, could have implications not only for those already sentenced to death, but those awaiting a trial or sentencing in especially heinous slayings.

The 8-1 Hurst v. Florida ruling, which was issued on Jan. 12, caught many lawyers who watch death penalty cases by surprise.

When contacted by The World-Herald late Friday, Kleine said he was not aware of the ruling. Neither was a spokeswoman for the Nebraska Attorney General’s Office.

Both offices were closed Monday for the Martin Luther King Jr. Day holiday. Kleine, when reached on Monday, said he planned to review the Hurst ruling “very closely.”

“We want to make sure we’re complying with all the direction the Supreme Court has given us,” he said.

The Supreme Court ruling in the Florida appeal relies heavily on a 2002 ruling called Ring v. Arizona. In that case, the court said a defendant’s Sixth Amendment right to a jury trial dictates that decisions about aggravating factors that would merit the death penalty in a murder case must be decided by juries, not judges.

Florida, one of the nation’s top states for imposing capital punishment, reacted to the Ring ruling by adopting a system that requires a jury to weigh the aggravating and mitigating circumstances. The jury then issues a recommendation on whether the death sentence is warranted. A judge, though, makes the ultimate sentencing decision.

In Nebraska, a jury, after a trial, makes a finding on whether aggravating factors — such as if the murder was especially heinous or cruel — exist that would qualify a case for the death penalty. A three-judge panel then hears evidence about mitigating circumstances, such as no prior criminal record, and then rules on whether the sentence should be death, after weighing the aggravating factors against the mitigating circumstances.

The high court’s ruling in the Florida case makes it clear that juries must decide all questions of fact in capital cases, according to Fenner.

Soucie, who has represented death row inmates and filed legal challenges to Nebraska’s capital punishment laws, said the state’s death penalty system is “built on a bed of sand” in light of the Hurst v. Florida ruling.

That, he said, is because juries in Nebraska never hear evidence about mitigating circumstances and because the three-judge panel can either give “no weight” or great weight to the jury’s findings on aggravating circumstances.

The immediate impact, Soucie said, will be on death penalty cases that have yet to go to trial or to the sentencing phase.

That would include the case of Nikko Jenkins, who was found guilty of four murders in Omaha but whose sentencing trial has been delayed to determine whether he’s mentally competent to participate.

At least one lawyer who has handled death penalty cases said Monday that he doubted that the Florida ruling would affect Nebraska.

Jeff Pickens, director of the Nebraska Commission on Public Advocacy, said Nebraska defense lawyers have long objected to the state’s sentencing law, arguing that juries should both decide and weigh mitigating and aggravating factors.

But Pickens said the Supreme Court fashioned a narrow ruling that affects only Florida’s sentencing method.

Nowhere in the recent opinion, he said, does the Supreme Court clearly state that juries must now decide mitigating factors along with aggravating factors.

That may be true, said Dunham, of the Death Penalty Information Center.

But the Hurst ruling clearly raised some legal confusion about Nebraska’s system that must be sorted out by the courts.

Dunham said he thinks the Florida ruling’s impact on Nebraska’s law wasn’t widely discussed or understood because Nebraska’s system for imposing a death sentence isn’t well known, and because Nebraska — unlike Florida — rarely uses capital punishment.

Florida has about 400 inmates on death row and is just starting to legally sort out whether the Hurst ruling will require those inmates to be resentenced. Florida’s most recent execution was in October. By contrast, Nebraska has 10 people on death row and hasn’t carried out an execution in 19 years.

The Nebraska Legislature, which is in session, probably could not move to change the state’s capital punishment system — if that is necessary — until after a November referendum on the death penalty, according to Eickholt, who helped draft the state law on death penalty sentencing procedures in 2002 when he worked for then-State Sen. Kermit Brashear.

Last year, state lawmakers, over a veto by Gov. Pete Ricketts, repealed Nebraska’s death penalty. But that repeal is on hold because a referendum petition drive, backed by the governor, was successful in putting the issue on the November ballot.

Eickholt, who now works for two anti-death penalty groups seeking to uphold the repeal, said the recent ruling by the Supreme Court “just really plays into the argument a lot of us are making: that the (death penalty) system is broken.”

Contact the writers: 402-473-9584, paul.hammel@owh.com; 402-473-9587, joe.duggan@owh.com