The writer is an attorney in Omaha.
The duty of the Douglas County attorney is to seek justice, not vengeance. Those are two different things.
I wish everyone could have seen the one-hour press conference that Don Kleine conducted on Monday. He dispassionately reviewed the evidence before him and applicable law. I’ll summarize the key points.
The first thing to note is that Kleine and his staff spent all day Sunday on the case. Witnesses were interviewed, videotapes were studied and the person in custody gave his version of the events. The affirmative defense of self-defense was asserted by the lawyers for the man who could be charged with homicide.
Kleine made a very important point that may sound like legalistic argle-bargle but is the law in Nebraska. Once a defendant asserts justification or self-defense, then the prosecution has the burden of proof to convince the jury — beyond a reasonable doubt — that self-defense does not apply.
Kleine painstakingly reviewed the evidence, as he knew it at that time, and compared it to the elements of self-defense. The context here is that a defendant must have both a reasonable and good faith belief in the necessity of using force and that deadly force must be immediately necessary and justified under the circumstances.
Briefly, the bar owner, his father and business partner were on Harney Street boarding up the bar’s windows. One of James Scurlock’s associates pushed the father to the ground. Two of Scurlock’s friends approached the bar owner, Jake Gardner. He retreated. Gardner was knocked down onto his back and into the street. He fired two warning shots into the air. Gardner regained his feet — and four seconds later — Scurlock jumped on Gardner’s back and put a chokehold on him. Gardner repeatedly told him to get off his back. Gardner then reached over his back and shot Scurlock, killing him.
Gardner told the Omaha police that during the incident he feared for his life.
Given all of the facts and circumstances and the law, Mr. Kleine did not file criminal charges. If the facts were different, his decision might have been different. But he has the duty to make his decision based upon the facts of this case.
It is especially worth noting that the county attorney’s decision was made in consultation with his experienced staff and the Omaha police. They all agreed that the matter was one of self-defense and criminal charges were not warranted. Kleine knew that in some quarters, his decision would not be popular. But the job of the county attorney is not to submit to the pressure of the Twitter and Facebook mob.
Don Kleine was first elected as Douglas County attorney in 2006 and was the chief criminal division deputy before that. Over the decades he’s seen thousands of cases. Two are worth noting here.
A former Creighton star basketball player was charged with rape. A preliminary hearing was conducted and the man was bound over for trial. During the course of discovery, evidence was developed that the complaining witness had a serious credibility problem. To his credit, Don Kleine took the unusual step of dismissing the charges. By doing so, a young black man avoided an expensive trial and a possible felony conviction.
The other case is what has become known as the Creighton murders, as all four victims had a connection to Creighton University. For many reasons, this was a difficult case to investigate and then prosecute. The Omaha Police Department and the Douglas County attorney did obtain justice, although it took many years.
If one were to read the decisions of the Nebraska appellate courts, one would see that the Douglas County Attorney’s Office has a record of successful prosecutions that protect the safety of the residents of Douglas County, no matter where they live or their race.
Don Kleine is not just an elected official. He is one of the rare ones: a public servant.