Attorney General’s Office argues that releasing grand jury transcript could taint jurors

December 6, 2018

LINCOLN — Releasing a grand jury transcript prior to a trial — as happened in the case of Zachary BearHeels — could taint jurors and deny someone who was indicted a fair trial, the Nebraska Supreme Court was told Wednesday.

The argument, by Corey O’Brien of the Nebraska Attorney General’s Office, mirrored a complaint lodged last month by Omaha Police Chief Todd Schmaderer.

In Schmaderer’s case, he wants the Nebraska Legislature to revise a state law that calls for the release of transcripts and exhibits of a grand jury. Such testimony should be withheld until after any criminal trials, the chief said, to ensure that there is a fair trial.

O’Brien wants the Supreme Court to overturn a Douglas County judge’s decision to release a transcript of the grand jury’s investigation into the death of BearHeels, a mentally ill man who died after an encounter in June 2017 with two Omaha police officers who repeatedly tased and punched him.

A trial is now underway for Scotty Payne, one of the two now-former officers charged in the BearHeels case. Payne was charged with second-degree assault and use of a weapon after the grand jury probe. A trial is pending for the other former officer, Ryan McClarty, who has been charged with third-degree assault.

During arguments before the Supreme Court on Wednesday, O’Brien argued that details of a grand jury’s probe could be disseminated widely, causing potential jurors to be prejudiced. That would be particularly true if a video that captured the incident was published on the Internet, he said.

But Daniel Fischer, an attorney representing The World-Herald and KETV, said the Legislature was clear when it passed a law requiring that grand jury transcripts and exhibits be available to the news media and the public.

If there was a concern about a tainted juror, that could be discovered — and a juror disqualified — during questioning prior to the seating of a jury, Fischer said.

The Supreme Court typically takes several weeks before ruling.

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