Nebraska death-row inmate Marco Torres Jr. listened from prison in Tecumseh as his public defender presented oral argument in his federal challenge last week.
Federal Public Defender Stephen Ferrell made the rare request in December.
“Under the circumstances, and especially since this is Mr. Torres’ single and last opportunity for federal review of his capital convictions and sentence, his case merits an effective and thorough presentation of the issues and therefore, counsel requests the opportunity to argue all of these issues to this Court and to have the opportunity to answer any questions the Court may have.â€
The Nebraska Attorney General’s Office had objected to the move, saying they were concerned of the “slippery slope for future cases†and concern that Torres’ attorney might improperly argue information outside the record.
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But Magistrate Judge Michael Nelson said he found the benefit of additional arguments “outweighs these hypothetical concerns.â€
In his order granting the motion, he cited the complexity of the issues in the case, the changing legal landscape of capital habeas cases since the case has been pending, and the seriousness of the issues.
At Thursday’s hearing held by phone with audio later uploaded, Nelson started by pointing the attorneys to a couple of items of interest to him, two claims Torres’ attorney raised, involving claims of ineffective assistance of counsel and prosecutorial misconduct in the case.
“It is rather unusual, but I think that the facts of this case are unique and deserve some discussion,†Ferrell said.
Torres, 48, was sent to death row on two counts of first-degree murder for killing roommates Timothy Donohue, 48, and Edward Hall, 60, in Grand Island in 2007.
Investigators found his DNA on the belt of a bath robe used to gag Hall, and he was on camera using Hall’s debit card two days before his body was found.
Ferrell said he wanted to emphasize to the court that this isn’t a fishing expedition “or some wild goose chase.â€
“These are specific allegations for specific information that we think could potentially help our claim,†he said of further discovery he’s requesting in the case.
Ferrell said Torres’ attorneys at trial were ineffective for not striking a juror who answered “send them home†to a question about Hispanics, in general, on a jury questionnaire mailed out before trial. He said it showed explicit bias on behalf of the man, who ultimately sat on the jury.
And, he pointed to a conflict with another client, a potential witness in Torres’ case, that led to his prior attorneys’ withdrawal from the case, though the reason wasn’t disclosed to new counsel.
“We also, through discovery, want to more firmly prove that state action was involved in covering up this evidence and keeping it from the actual trial attorneys,†Ferrell alleged.
The Nebraska Supreme Court previously had said it was error to allow prosecutors to offer evidence of a kidnapping three weeks earlier that never was reported to police, though it was harmless given the “overwhelming evidence.â€
Ferrell argued against the notion, saying the state’s theory seemed to be undone by the forensic evidence. That cigarette butts at the house simply proved he smoked there with Donohue, he said, and his DNA could have been transferred to the robe because investigators who collected it didn’t change their gloves.
He said it made no sense that Torres would stay in town for three days after stealing Hall’s car if, as the state theorized, he had been desperate to get to Texas but needed money and transportation first to do it.
On the other side, Assistant Nebraska Attorney General Stacy Foust said, as the prosecutor pointed out in closing arguments: “We will never know why Mr. Torres stayed, but that does not mean he did not commit the murders.â€
Ferrell described Torres as a scared man in a dire circumstance, who believed he was being set up for murder, a description to which she took issue.
“Torres’ interview with law enforcement contradicts any notion that he was a scared man. He 100% thought that he could control the narrative,†she said.
Foust said Torres first blamed two other men for the murders, then claimed he had a recording of one of them confessing. When that didn’t work, he tried to fabricate evidence, she said.
“He wasn’t scared. He thought he was the smartest person in the room,†she said.
Foust said the majority of Torres’ argument is, as Ferrell put it, designed to show “that every brick used by the state to build its case is riddled with weakness.â€
“But,†she said, “a habeas petitioner cannot prevail by having the federal court chip away the circumstantial evidence the jury heard and that the state courts found was sufficient.â€
Nelson took the matter under advisement, subject to further briefing.