About The Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fiscal Year 2006/2007 In Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Major Case Resource Center. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

LB 729 - Legal Aid and Services Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

LB 335 - Indigent Defense Standards Advisory Council. . . . . . . . . . . . . . . . . . . . 6

LB 655 - DNA Testing Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Recommendations for Improvement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Commission Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Staff/Credentials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Appendix A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Appendix B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

As required by law, this is the annual report on the status of the commission for fiscal year 2006/2007 as prepared by the chief counsel. On January 1, 1996, the Nebraska Commission on Public Advocacy became operational pursuant to Neb.Rev.Stat. § 29-3919 et.seq. The commission was created in 1995 pursuant to LB 646, to provide property tax relief to counties by having the state pay the majority of the legal costs for indigent defendants who are charged with first-degree murder, other violent felonies and drug offenses. The commission represents defendants at their trial and on direct appeal. The commission is appointed in counties that have a conflict in their public defender office, counties that have no public defender, or counties needing assistance in representation. Commission appointments provide counties with substantial savings for attorneys fees and expenses. Property tax relief is achieved as counties pay nothing when the commission is appointed. The commission is entirely cash funded relying upon no state general funds.

The commission staff consists of six attorneys, including the Chief Counsel, an investigator, and two administrative staff. Attorneys have extensive experience in criminal law, and the investigator is a retired deputy sheriff from the Los Angeles County Sheriff’s office. On February 15, 1996, the commission hired the Chief Counsel, and on June 1, 1996, the commission officially began accepting appointments to new cases, and providing legal assistance and resource services to public defenders and court-appointed attorneys.

The commission continued to perform its duty to provide resource assistance to public defenders and court-appointed counsel. The resource attorney receives requests from public defenders and court-appointed attorneys and provides assistance and referrals. Briefs and legal research also provide additional tax relief by saving even more legal expense.

The commission began its tenth year of operation in 2006. The commission continued to effectively represent indigent citizens of this state charged with very serious crimes while saving counties thousands of taxpayer dollars. The commission’s defined work is found in its violent crime and drug defense division, capital litigation division, appellate division, DNA testing division, and major case resource center. Commission case definitions and guidelines were revised to include the acceptance of appointments to represent inmates on death row who challenge the execution procedure through the filing of a state Civil Rights petition.

The following are cases the commission can accept appointment to, however, all case appointments are subject to the caseload standards set by the Chief Counsel pursuant to law:

A. All violent offenses that allege any one or more of the following crimes: Murder in the first degree, murder in the second degree, manslaughter, assault in the first degree, kidnaping, sexual assault in the first degree, sexual assault of a child (subsequent offense alleged), robbery, child abuse that results in serious bodily injury or death of a child, any violent felony where the habitual criminal allegation has been alleged, or any class III felony that has an element of use, attempted use, or threatened use of physical force against a person.

1. If a violent crime against a person is charged and that crime is not as defined above in section I.A., but use of a weapon is also charged, that case would qualify.

B. All drug offense crimes where one of the drug crimes charged is punishable as a Class III felony or higher.

A. The commission will handle all direct appeals in which it represented the defendant whether or not there was a plea or trial.

B. In cases where the commission was not representing the defendant at trial, it will accept appointment to direct appeals if the defendant went to trial and was convicted of any of the crimes listed above. It will not accept appointment to cases where there was a plea and the only issue is an excessive sentence.

A. The commission will accept appointment on post convictions cases where the defendant was convicted of 1^st or 2^nd degree murder.

B. The chief counsel may use his discretion in accepting appointment on a post conviction case that does not meet the criteria set forth above, taking into consideration the seriousness of the conviction, sentence imposed, and issues presented.

A. The commission will accept appointments to represent inmates on death row who are challenging the procedure used to execute them through the filing of a state Civil Rights petition.

A. The commission will accept appointment to represent a juvenile charged with a crime as described in section I, if the juvenile is originally charged in adult court. It will not accept appointment for any crime or abuse/neglect cases initially filed in juvenile court.

B. The commission will not accept appointment to any motion to revoke probation filed against a previous client, or a new client.

A. If the commission has been appointed to represent a defendant and a subsequent case is filed alleging crimes that the commission would not ordinarily accept appointment to, it will accept appointment, which would be in the best interest of the defendant, regardless of what the crimes charged are alleged to be.

A. If a public defender needs assistance in defending any of the more serious qualified cases, the commission will accept appointment to be co-counsel with the local public defender. If the commission is appointed, then all expenses associated with the defense of the case will be paid by the commission so that the costs will not adversely impact the budget of the local public defender.

B. The commission will accept appointment on all qualified cases if the local public defender has a conflict, or the caseload for that office is at maximum capacity.

Again, no state general funds are used to fund the commission, which continues the agency’s purpose of saving taxpayer monies. The commission bills nothing for services and expenses incurred in its representation work. A portion of court costs from across the state is deposited into the commission’s operating budget which covers all operating expenses. This generates sufficient cash funds to cover the commission’s expenses without the need for general funds. Cash income for 2006/07 totaled $1,191,200. Expenditures for 2006/07 totaled $922,115, including operating expenses, court reporter fees, photocopying charges, expert fees, trial expenses and other costs.

Cases handled by commission attorneys continue to save counties hundreds of thousands of dollars, while providing effective assistance of counsel. With the changes in the sentencing procedure on death penalty cases, the number of these cases has increased. Not only has the number of death penalty cases increased but so has attorney time and expenses increased. If aggravating circumstances are alleged, the cost of these cases has almost doubled from the costs under the old sentencing procedure. In effect, there are two trials: the guilt phase and the sentencing phase, doubling the costs. We now estimate that when the commission is appointed on a death penalty case, it saves the counties over $300,000 in fees and expenses. For this reporting period, the commission is handling 15 death penalty cases, which translates into well over $4,000,000 in tax savings to local taxpayers. That savings does not include over 215 cases that were open during this period regarding serious violent felonies and certain drug offenses as defined above. Based on an average of $3,000 per case, that has resulted in saving the taxpayers an additional $645,000 in fees and thousands more in expenses.

The Commission on Public Advocacy was created to provide legal services and resources to assist counties in fulfilling their obligation to provide effective assistance of counsel for indigent persons. Neb. Rev. Stat. § 29-3923 (Reissue 1995) Fulfilling this broad mandate involves more than commission attorneys representing clients on a case-by-case basis. The mission of the commission is to meet the objective that all indigent persons accused of crime receive competent and effective legal representation. The major case resource center is directed at meeting that goal through direct assistance, education, and training.

Public defenders, contracting attorneys, court-appointed attorneys, and attorneys representing the indigent on a pro-bono basis can contact any one of the commission attorneys for assistance. This communication occurs by telephone, e-mail, and personal conferences. Commission attorneys provide direct assistance by advising attorneys about what the law requires through statutory and decisional authorities; strategies for pretrial preparation, trial, sentencing, appeals, and postconviction phases of a criminal case; and suggested techniques that can be used to more effectively represent a client. Commission attorneys also provide sample motions briefs and letters, seminar materials, treatises, video tapes, legal research, contact information for experts, and a variety of other resources.

The major case resource center also assists in the education of defense attorneys in the indigent defense system. This education is provided through the direct assistance as noted above, but also includes a number of other sources. Commission attorneys participate as presenters and faculty in continuing legal education programs and seminars and serve on committees that are created to aid in bettering indigent defense systems throughout the state.. Commission attorneys author publications that assist providers of indigent defense. These publications include how-to manuals, seminar materials, and articles printed on a frequent basis in the newsletter of the Nebraska Criminal Defense Attorneys Association. Commission attorneys also provide joint representation with local attorneys, whereby a two-way exchange of information and ideas occurs.

The commission’s website provides another medium to serve its statutory objectives. As the number of Internet users continues to grow, so do the opportunities of the major case resource center to serve the needs of the indigent defense community. Technological advancements allow the center to provide more information in a more secure environment. Through our website, the commission provides a variety of manuals on substantive criminal law and procedure. These materials are presented in a user-friendly, well-indexed manner and come complete with sample motions and forms. Well-indexed collections of legal precepts are also available. These resources have consistently helped to focus the requests for direct assistance to the precise issues facing the counsel’s client.

The website gives indigent defense attorneys a forum to converse with each other through a secure message board. A user identification and password system protect security. Additionally, if the information an attorney is looking for is not found on the website, there is an organized list of links and contact references to route that attorney to appropriate criminal defense resources.

In accordance with LB 729, which became law on January 1, 1998 (§§ 25-3001 to 25-3004), the Legal Aid and Services Fund continued receiving court costs and docket fees for juvenile, county, and district court cases, appeals to the Court of Appeals and Supreme Court and actions to modify decrees of dissolution, annulment, child support, and custody and visitation cases deposited throughout counties in the state, pursuant to §§ 33-107.01 and 33-107.02.

The commission published the availability of such funds and received applications to initiate another application process. At its December 2, 2006 meeting, the commission met and awarded monthly disbursement of funds for a twelve-month period beginning in January 2007, for the following qualifying civil legal service entities serving the indigent, in these total amounts:

As in previous years, services provided by these entities would not be available to the indigent if the Legal Aid and Services Fund did not exist. Grant award recipients submit quarterly activity reports and annual audits to the commission to assure compliance with criteria and law in the receipt and expenditure of such funds.

Legislative Bill 335 was passed in 2001 which assigned to the Commission the responsibility of creating guidelines and standards for county indigent defense systems. The purpose of the standards was to raise the effectiveness of attorneys who are representing indigent citizens of this state charged with a felony offense. To encourage counties to adopt these standards, if a county were to, it would be reimbursed 25% of its indigent defense costs for felony cases. Pursuant to § 29-3932, the Indigent Defense Standards Advisory Council was created and its members were: Thomas Riley, Dennis Keefe, Thomas Sonntag, Michael Hansen, Gerard Piccolo, Michael Fabian and commission Chief Counsel James Mowbray. The standards were drafted and adopted in May of 2002. Due to the recent budget deficits, the general funds that were appropriated for the standards was rescinded by the Legislature, so currently there is no money available to reimburse counties for any of their defense expenses. Hopefully, when the state climbs out of this revenue shortfall, the funding will be re-appropriated and the standards will be adopted by some counties.

Under the DNA Testing Act which took effect on September 1, 2001, the commission continued to represent inmates in DNA testing cases. The Act requires the commission be appointed to represent indigent prisoners and pay for the DNA testing. The commission is currently handling four DNA Testing Act cases.

This agency does its best to reduce unnecessary expenses, while at the same time continue to provide exceptional defense services for our clients in this state. Staff meetings are held on an ongoing basis to address fiscal problems so that commission employees are aware of our need to reduce. The commission also continues to promote its purpose with the state’s county and district judges so that those who have appointed this agency in the past will continue to do so in the future, and those who have not yet used this office will do so in the future.

The commission consists of nine members appointed by the governor from a list of attorneys submitted by the executive council of the Nebraska State Bar Association after consultation with the board of directors of the Nebraska Criminal Defense Attorneys Association. A member is appointed from each of the six state Supreme Court districts, and three members are appointed at large. Members must belong to the Nebraska State Bar Association and have substantial experience in criminal defense work. They may not be prosecutors, law enforcement officials or judges during their terms of office. Members serve six-year terms, except that three of the initial members are serving two-year terms and three are serving four-year terms. The governor designates the chairperson of the commission. Members are reimbursed for expenses incurred in the performance of their duties.

Stephanie R. Hupp, Lincoln	District 1	November 3, 2011
Edward G. Warin, Omaha	District 2	November 3, 2007
Douglas J. Stratton, Norfolk	District 3	November 3, 2009
David R. Stickman, Omaha	District 4	November 3, 2009
Joseph H. Murray, Hebron	District 5	November 3, 2007
Nancy S. Freburg, Kearney	District 6	November 3, 2011
Bernard J. Straetker, Scottsbluff	At Large	November 3, 2007
Robert P. Lindemeier, North Platte, Chair	At Large	November 3, 2009
Dana C. "Woody" Bradford, Omaha	At Large	November 3, 2011

In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance

In all criminal prosecutions the accused shall have the right to appear and defend in

Administration of criminal justice shall mean performance of any of the following activities: Detection, apprehension, detention, pretrial release, pretrial diversion, posttrial release, prosecution, defense by a full-time public defender’s office, defense by the Commission on Public Advocacy, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. The administration of criminal justice shall include criminal identification activities and the collection, storage, and dissemination of criminal history record information.

Sections 29-3919 to 29-3933 shall be known and may be cited as the County Revenue Assistance Act.

(1) County property owners should be given some relief from the obligation of providing mandated indigent defense services which in most instances are required because of state laws establishing crimes and penalties;

(2) Property tax relief can be accomplished if the state begins to assist the counties with the obligation of providing indigent defense services required by state laws establishing crimes and penalties;

(3) Property tax relief in the form of state assistance to the counties of Nebraska in providing for indigent defense services will also increase accountability because the state, which is the governmental entity responsible for passing criminal statutes, will likewise be responsible for paying some of the costs;

(4) Property tax relief in the form of state assistance to the counties of Nebraska in providing for indigent defense services will also improve inconsistent and inadequate funding of indigent defense services by the counties;

(5) Property tax relief in the form of state assistance to the counties of Nebraska in providing for indigent defense services will also lessen the impact on county property taxpayers of the cost of a high profile death penalty case which can significantly affect the finances of the counties; and

(6) To accomplish property tax relief in the form of the state assisting the counties of Nebraska in providing for indigent defense services, the Commission on Public Advocacy Operations Cash Fund should be established to fund the operation of the Commission on Public Advocacy and to fund reimbursement requests as determined by section 29-3933.

§ 29-3921. Commission on Public Advocacy Operations Cash Fund; created; use; investment.

The Commission on Public Advocacy Operations Cash Fund is created. The fund shall be used for the operations of the commission. The fund shall consist of money remitted pursuant to section 33-156. It is the intent of the Legislature that the commission shall be funded solely from the fund. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act. Any money in the County Revenue Assistance Fund on April 19, 2002, shall be transferred to the Commission on Public Advocacy Operations Cash Fund.

(1) Chief counsel means an attorney appointed to be the primary administrative officer of the commission pursuant to § 29-3928;

(3) Commission staff means attorneys, investigators, and support staff who are performing work for the capital litigation division, appellate division, DNA testing division, and major case resource center;

(4) Contracting attorney means an attorney contracting to act as a public defender pursuant to §§ 23-3404 to 23-3408;

(6) Court-appointed attorney means an attorney other than a contracting attorney or a public defender appointed by the court to represent an indigent person;

(7) Indigent defense services means legal services provided to indigent persons by an indigent defense system in capital cases, felony cases, misdemeanor cases, juvenile cases, mental health commitment cases, child support enforcement cases, and paternity establishment cases;

(8) Indigent defense system means a system of providing services, including any services necessary for litigating a case, by a contracting attorney, court-appointed attorney, or public defender;

(9) Indigent person means a person who is indigent and unable to obtain legal counsel as determined pursuant to subdivision (3) of section 29-3901; and

(10) Public defender means an attorney appointed or elected pursuant to §§ 23-3401 to 23-3403.

The Commission on Public Advocacy is created. The commission shall provide legal services and resources to assist counties in fulfilling their obligation to provide for effective assistance of counsel for indigent persons.

The commission shall consist of nine members appointed by the Governor from a list of attorneys submitted by the executive council of the Nebraska State Bar Association after consultation with the board of directors of the Nebraska Criminal Defense Attorneys Association. A member shall be appointed from each of the six Supreme Court judicial districts, and three members shall be appointed at large. The executive council of the Nebraska State Bar Association shall ensure that the selection process promotes appointees who are independent from partisan political influence. To be eligible for appointment, a person shall be a member of the Nebraska State Bar Association who has substantial experience in criminal defense work and, for appointments made after September 13, 1997, substantial experience in civil legal matters that commonly affect low-income persons and, at the time of selection or at any time during the term of office, shall not be a prosecutor, law enforcement official, or judge. All members shall be committed to the principle of providing indigent defense services to low-income persons free from unwarranted judicial or political influence. Each member shall serve for a term of six years, except that three of the initial appointees shall serve terms of two years and three shall serve terms of four years as designated by the Governor. Members may be removed from the commission by the Governor for cause.

The Governor shall designate one of the members of the commission as the chairperson. The members of the commission shall be reimbursed for their actual and necessary expenses incurred in the performance of their duties as provided in §§ 81-1174 to 81-1177.

Five members of the commission constitute a quorum for the transaction of business. The commission may act by a majority of the members present at any meeting at which a quorum is in attendance.

(a) Adopt and promulgate rules and regulations for its organization and internal management and rules and regulations governing the exercise of its powers and the fulfillment of its purpose;

(b) Appoint and abolish such advisory committees as may be necessary for the performance of its functions and delegate appropriate powers and duties to them;

(c) Accept and administer loans, grants, and donations from the United States and its agencies, the State of Nebraska and its agencies, and other sources, public and private, for carrying out the functions of the commission;

(d) Enter into contracts, leases, and agreements necessary, convenient, or desirable for carrying out its purposes and the powers granted under this section with agencies of state or local government, corporations, or persons;

(e) Acquire, hold, and dispose of personal property in the exercise of its powers; and

(f) Provide legal services to indigent persons through the divisions in § 29-3930; and

(g) Adopt guidelines and standards, which are recommended to the commission by the council, for county indigent defense systems, including, but not limited to, standards relating to the following: The use and expenditure of funds appropriated by the Legislature to reimburse counties which qualify for reimbursement; attorney eligibility and qualifications for court appointments; compensation rates for salaried public defenders, contracting attorneys, and court-appointed attorneys and overall funding of the indigent defense system; maximum caseloads for all types of systems; systems administration, including rules for appointing counsel, awarding defense contracts, and reimbursing defense expenses; conflicts of interest; continuing legal education and training; and availability of supportive services and expert witnesses.

(2) The standards adopted by the commission under subdivision (1)(g) of this section are intended to be used as a guide for the proper methods of establishing and operating indigent defense systems. The standards are not intended to be used as criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.

(3) With respect to its duties related to the provision of civil legal services to eligible low-income persons, the commission shall have such powers and duties as described in sections 25-3001 to 25-3004.

The commission shall appoint a chief counsel. The responsibilities and duties of the chief counsel shall be defined by the commission and shall include the overall supervision of the workings of the various divisions of the commission. The chief counsel shall be qualified for his or her position, shall have been licensed to practice law in the State of Nebraska for at least five years prior to the effective date of the appointment, and shall be experienced in the practice of criminal defense, including the defense of capital cases. The chief counsel shall serve at the pleasure of the commission. The salary of the chief counsel shall be set by the commission.

The primary duties of the chief counsel shall be to provide direct legal services to indigent defendants, and the chief counsel shall:

(1) Supervise the operations of the appellate division, the capital litigation division, the DNA testing division, and the major case resource center;

(3) Present to the commission an annual report on the operations of the commission, including an accounting of all funds received and disbursed, an evaluation of the cost-effectiveness of the commission, and recommendations for improvement;

(4) Convene or contract for conferences and training seminars related to criminal defense;

(6) Establish and administer projects and programs for the operation of the commission;

(7) Appoint and remove employees of the commission and delegate appropriate powers and duties to them;

(8) Adopt and promulgate rules and regulations for the management and administration of policies of the commission and the conduct of employees of the commission;

(9) Transmit monthly to the commission a report of the operations of the commission for the preceding calendar month;

(10) Execute and carry out all contracts, leases, and agreements authorized by the commission with agencies of federal, state, or local government, corporations, or persons; and

(11) Exercise all powers and perform all duties necessary and proper in carrying out his or her responsibilities.

(1) The capital litigation division shall be available to assist in the defense of capital cases in Nebraska, subject to caseload standards of the commission;

(2) The appellate division shall be available to prosecute appeals to the Court of Appeals and the Supreme Court, subject to caseload standards of the commission; and

(3) The violent crime and drug defense division shall be available to assist in the defense of certain violent and drug crimes as defined by the commission, subject to the caseload standards of the commission;

(4) The DNA testing division shall be available to assist in representing persons who are indigent who have filed a motion pursuant to the DNA Testing Act, subject to caseload standards; and

(5) The major case resource center shall be available to assist public defenders, contracting attorneys, or court-appointed attorneys with the defense of a felony offense, subject to caseload standards of the commission.

(1) In addition to all other court costs assessed according to law, an indigent defense fee of two dollars and seventy-five cents shall be taxed as costs for each case filed in each county court and district court, including appeals to such courts, and for each appeal and original action filed in the Court of Appeals and the Supreme Court. The fees shall be remitted to the State Treasurer on forms prescribed by the State Treasurer within ten days after the end of the month. The State Treasurer shall credit the fees to the Commission on Public Advocacy Operations Cash Fund.

(2) In cases under the DNA Testing Act, costs shall be paid as provided in such act.

(1) The Indigent Defense Standards Advisory Council is created. The council shall consist of seven members, including the elected public defenders for Douglas County and

Lancaster County, the chief counsel, and four members who have substantial experience in providing indigent defense services either as a public defender, contracting attorney, or court-appointed attorney and who are nominated by the Nebraska Criminal Defense Attorneys Association and appointed by the commission. The four members who are appointed by the commission shall serve a term of four years, except that, of the members first appointed, one member shall serve a term of one year, one member shall serve a term of two years, one member shall serve a term of three years, and one member shall serve a term of four years. A member may be reappointed at the expiration of his or her term. Any vacancy occurring other than by expiration of a term shall be filled for the remainder of the unexpired term in the same manner as the original appointment. The council shall select one of its members as chairperson.

(2) Notwithstanding any other provision of law, membership on the council shall not disqualify any member from holding his or her office or position or cause the forfeiture thereof.

(3) Members of the council shall serve without compensation, but they shall be entitled to reimbursement for their actual and necessary expenses as provided in sections 81-1174 to 81-1177.

(4) The council shall be responsible for developing and recommending to the commission guidelines and standards for county indigent defense systems, including, but not limited to, standards relating to the following: The use and expenditure of funds in the County Revenue Assistance Fund to reimburse counties which qualify for reimbursement; attorney eligibility and qualifications for court appointments; compensation rates for salaried public defenders, contracting attorneys, and court-appointed attorneys and overall funding of the indigent defense system; maximum caseloads for all types of systems; systems administration, including rules for appointing counsel, awarding defense contracts, and reimbursing defense expenses; conflicts of interest; continuing legal education and training; and availability of supportive services and expert witnesses.

(1) Any county which intends to request reimbursement for a portion of its expenditures for its indigent defense system must comply with this section.

(2) In order to assist the Commission on Public Advocacy in its budgeting process for determining future reimbursement amounts, after July 1, 2002, and before July 15, 2002, and for each year thereafter in which the county intends to seek reimbursement for a portion of its expenditures for indigent defense services in felony cases for the next fiscal year, the county shall present to the Commission on Public Advocacy (a) a plan, in a format approved by the commission, describing how the county intends to provide indigent defense services in felony cases, (b) a statement of intent declaring that the county intends to comply with the standards set by the commission for felony cases and that the county intends to apply for reimbursement, and © a projection of the total dollar amount of expenditures for that county's indigent defense services in felony cases for the next fiscal year.

(3) The commission may conduct whatever investigation is necessary and may require certifications by key individuals in the criminal justice system, in order to determine if the county is in compliance with the standards. If a county is certified by the commission as having met the standards established by the commission for felony cases, the county shall be eligible for reimbursement according to the following schedule and procedures: The county clerk of the county seeking reimbursement may submit, on a quarterly basis, a certified request to the commission, for reimbursement from the County Revenue Assistance Fund, for an amount equal to one-fourth of the county's actual expenditures for indigent defense services in felony cases.

(4) Upon certification by the county clerk of the amount of the expenditures, and a determination by the commission that the request is in compliance with the standards set by the commission for felony cases, the commission shall quarterly authorize an amount of reimbursement to the county as set forth in this section.

(5) If the appropriated funds are insufficient in any quarter to meet the amount needed for full payment of all county reimbursements for net expenditures that are certified for that quarter, the commission shall pay the counties their pro rata share of the remaining funds based upon the percentage of the county's certified request in comparison to the total certified requests for that quarter.

(6) For purposes of section 13-519, for any year in which a county first seeks reimbursement from funds appropriated by the Legislature or has previously qualified for reimbursement and is seeking additional reimbursement for improving its indigent criminal defense program, the last prior year's total of restricted funds shall be the last prior year's total of restricted funds plus any increased amount budgeted for indigent defense services that is required to develop a plan and meet the standards necessary to qualify for reimbursement of expenses from funds appropriated by the Legislature.

A new trial, after a verdict of conviction, may be granted, on the application of the defendant, for any of the following grounds...:(6) newly discovered exculpatory DNA or similar forensic testing evidence obtained under the DNA Testing Act;... .

Sections 29-4116 to 29-4125 shall be known and may be cited as the DNA Testing Act.

It is the intent of the Legislature that wrongfully convicted persons have an opportunity to establish their innocence through deoxyribonucleic acid, DNA, testing.

(1) Over the past decade, DNA testing has emerged as the most reliable forensic technique for identifying persons when biological material is found at a crime scene or transferred from the victim to the person responsible and transported from the crime scene;

(2) Because of its scientific precision and reliability, DNA testing can, in some cases, conclusively establish the guilt or innocence of a criminal defendant. In other cases, DNA may not conclusively establish guilt or innocence but may have significant probative value to a finder of fact;

(3) While DNA testing is increasingly commonplace in pretrial investigations currently, it was not widely available in cases prior to 1994. Moreover, new forensic DNA testing procedures, such as polymerase chain reaction amplification, DNA short tandem repeat analysis, and mitochondrial DNA analysis, make it possible to obtain results from minute samples that previously could not be tested and to obtain more informative and accurate results than earlier forms of forensic DNA testing could produce. As a result, in some cases, convicted inmates have been exonerated by new DNA tests after earlier tests had failed to produce definitive results;

(4) Because DNA testing is often feasible on relevant biological material that is decades old, it can in some circumstances prove that a conviction which predated the development of DNA testing was based upon incorrect factual findings. DNA evidence produced even decades after a conviction can provide a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial. DNA testing, therefore, can and has resulted in postconviction exoneration of innocent men and women;

(5) In the past decade, there have been multiple postconviction exonerations in the United States and Canada based upon DNA testing. In addition, a disturbing number of persons sentenced to death have been exonerated through postconviction DNA testing, some of these exonerations coming within days of their execution date;

(6) DNA testing responds to serious concerns regarding wrongful convictions, especially those arising out of mistaken eyewitness identification testimony; and

(7) There is a compelling need to ensure the preservation of biological material for postconviction DNA testing, for a limited period.

For purposes of the DNA Testing Act, exculpatory evidence means evidence which is favorable to the person in custody and material to the issue of the guilt of the person in custody.

(1) Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgment requesting forensic DNA testing of any biological material that:

(a) Is related to the investigation or prosecution that resulted in such judgment;

(b) Is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity of the

(c) Was not previously subjected to DNA testing or can be subjected to retesting with more current DNA techniques that provide a reasonable likelihood of more accurate and probative results.

(2) Notice of such motion shall be served by the person in custody upon the county attorney of the county in which the prosecution was held.

(3) Upon receiving notice of a motion filed pursuant to subsection (1) of this section, the county attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured by the state or a political subdivision in connection with the case is preserved pending the completion of proceedings under the DNA Testing Act.

(4) The county attorney shall prepare an inventory of all evidence that was secured by the state or a political subdivision in connection with the case and shall submit a copy

of the inventory to the person or the person's counsel and to the court. If evidence is intentionally destroyed after notice of a motion filed pursuant to this section, the court shall impose appropriate sanctions, including criminal contempt.

(5) Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that such testing was effectively not available at the time of trial, that the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and that such testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced.

(6) All forensic DNA tests shall be performed by a laboratory which is accredited by the American Society of Crime Laboratory Directors-LAB-Laboratory Accreditation Board or the National Forensic Science Technology Center or by any other national accrediting body or public agency which has requirements that are substantially equivalent to or more comprehensive than those of the society or center.

The cost of DNA testing ordered under subsection (5) of section 29-4120 shall be paid by the person filing the motion, unless the court determines such person to be indigent. If the person filing such motion is determined by the court to be indigent, the costs shall be paid by the state in the following manner:

(1) If the Commission on Public Advocacy has been appointed to represent the person filing the motion, as determined under section 29-4122, the costs of testing shall be paid by the commission from funds appropriated by the Legislature; and

(2) If the Commission on Public Advocacy has not been appointed to represent the person filing the motion, the court shall hold a hearing to determine the costs for DNA testing. The court shall order the commission to pay such costs. The order shall be forwarded by the clerk of the court to the commission, along with copies of all invoices for such DNA testing. Upon receipt, the commission shall pay such costs from funds appropriated by the Legislature.

Upon a showing by the person that DNA testing may be relevant to the person's claim of wrongful conviction, the court shall appoint counsel for an indigent person as follows:

(1) The court shall first contact the chief counsel for the Commission on Public Advocacy to inquire if the commission is able to accept the appointment. If the chief counsel determines that the commission can accept the appointment, then the court shall appoint the commission pursuant to the County Revenue Assistance Act; and

(2) If the chief counsel declines the appointment because of a conflict of interest or the case would exceed the caseload standards set by the commission, then the court shall appoint an attorney licensed to practice law in this state with at least five years experience in felony litigation to represent the indigent person at all stages of the proceedings. Counsel appointed under this subdivision, other than the public defender, shall obtain leave of court before proceeding beyond an initial direct appeal to either the Court of Appeals or the Supreme Court to any further direct, collateral, or postconviction appeals to state or federal courts. Counsel appointed under this subdivision shall file an application for fees and expenses in the district court which appointed him or her for all fees and expenses reasonable necessary to permit him or her to effectively and competently represent the client. The court, upon hearing the application, shall fix reasonable attorney's fees and expenses. The court's order shall require that such fees and expenses be paid by the Commission on Public Advocacy from funds appropriated by the Legislature. Upon receipt of the order, the commission shall pay such fees and expenses in the full amount determined by the court.

(1) The results of the final DNA or other forensic testing ordered under subsection (5) of section 29-4120 shall be disclosed to the county attorney, to the person filing the motion, and to the person's attorney.

(2) Upon receipt of the results of such testing, any party may request a hearing before the court when such results exonerate or exculpate the person. Following such hearing, the court may, on its own motion or upon the motion of any party, vacate and set aside the judgment and release the person from custody based upon final testing results exonerating or exculpating the person.

(3) If the court does not grant the relief contained in subsection (2) of this section, any party may file a motion for a new trial under sections 29-2101 to 29-2103.

Nothing in the DNA Testing Act shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.

(1) Notwithstanding any other provision of law and subject to subsection (2) of this section, state agencies and political subdivisions shall preserve any biological material secured in connection with a criminal case for such period of time as any person remains incarcerated in connection with that case.

(2) State agencies or political subdivisions that have secured biological material for use in criminal cases may dispose of biological material before expiration of the period of time specified in subsection (1) of this section if:

(a) The state agency or political subdivision which secured the biological material for use in a criminal case notifies any person who remains incarcerated in connection with the case, such person's counsel of record, or if there is no counsel of record, the public defender, if applicable, in the county in which the judgment of conviction of such person was entered. The notice shall include:

(i) The intention of the state agency or political subdivision to dispose of the material after ninety days after receipt of the notice; and

(b) The person, such person's counsel of record, or the public defender does not file a motion under section 29-4120 within ninety days after receipt of notice under this section; and

(3) The person, such person's counsel of record, or the public defender who receives notice under subdivision (2)(a) of this section, may, in lieu of a motion under section 29-4120, request in writing to take possession of the biological material for the purpose of having the material available for any future discovery of scientific or forensic techniques. Copies of any such written request shall be provided to both the court and to the county attorney. The costs of acquisition, preservation, and storage of any such material shall be at the expense of the person.

(1) All agencies and personnel of state government shall be covered by sections 81-1301 to 81-1319 and shall be considered subject to the State Personnel System, except the following:...

The purpose of having such noncovered positions shall be to allow agency heads the opportunity to recruit, hire, and supervise critical, confidential, or policymaking personnel without restrictions from selection procedures, compensation rules, career protections, and grievance privileges. Persons holding the noncovered positions shall serve at the pleasure of the agency head and shall be paid salaries set by the agency head.

In no case shall a current state employee’s career protections or coverage by personnel rules and regulations be revoked without the prior written agreement of such employee.

(1) Eligible low-income person means any person (a) whose income is less than one hundred twenty-five percent of the federal poverty level, (b) who is financially eligible under the service provider's eligibility guidelines, © who resides in one of the counties in the service provider's area, and (d) who has a civil legal problem that falls within the guidelines established by the Commission on Public Advocacy;

(2) Service area means the counties in Nebraska defined by the commission as the area to be served by a service provider; and

(3) Service provider means a nonprofit entity that is engaged in or desires to become engaged in the provision of free civil legal services to eligible low-income persons.

The Legal Aid and Services Fund is created. Money in the fund shall be used to provide civil legal services to eligible low-income persons. The Commission on Public Advocacy shall distribute all money in the fund periodically in the form of grants to service providers of civil legal services to eligible low-income persons as determined by the commission pursuant to section 25-3004. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act. Any money left in the Legal Aid and Services Fund on December 31 of any year shall be distributed in the following year.

(1) The Commission on Public Advocacy shall establish eligibility criteria and guidelines to determine on an annual basis (a) the service areas, (b) the legal services to be provided and the priorities for providing the services, and © the service provider or providers for each service area. The commission shall annually certify one or more service providers for each service area. A single service provider may be certified for more than one service area. Such certification entitles the service provider to a distribution of funds as defined and determined by section 25-3004.

(2) The commission shall accept applications for certification on an annual basis from entities interested in providing free civil legal services to eligible low-income persons. In the application, each applicant shall certify to the commission that the applicant intends to provide free civil legal services to eligible low-income persons as determined by the commission.

(1) Each service provider certified by the Commission on Public Advocacy shall be eligible to receive funds from the Legal Aid and Services Fund to provide free civil legal services to eligible low-income persons in the service area for which it is certified. The funds granted to each service provider from the Legal Aid and Services Fund shall be determined by the commission.

(2) Each service provider is authorized to use funds received from the Legal Aid and Services Fund to provide legal services in civil matters to any eligible low-income person.

(3) A service provider which has received funds from the Legal Aid and Services Fund shall be audited annually.

A legal services fee of five dollars shall be taxed as costs in each case filed in each separate juvenile court and district court, including appeals to such courts, and on each case filed in each county court except those filed in county court pursuant to its jurisdiction under subdivision (5) of section 24-517 or section 25-2802. A legal services fee of five dollars shall be taxed as costs for each appeal and original action filed in the Court of Appeals and the Supreme Court. Such fees shall be remitted to the State Treasurer on forms prescribed by the State Treasurer within ten days after the close of each month for credit to the Legal Aid and Services Fund.