Nebraska governor, attorney general could be subpoenaed to testify

By Deena Winter | Nebraska Watchdog

LINCOLN, Neb. – The chairman of a legislative committee investigating prison scandals said Friday it’s possible Nebraska Gov. Dave Heineman, Attorney General Jon Bruning and other top Heineman officials could be subpoenaed to testify before the committee about how the state responded to miscalculated prison sentences.

After a day-long hearing Friday, Sen. Steve Lathrop, D-Omaha, said Heineman and others could be asked to testify about what he knew about his corrections director’s decision not to make about eight ex-cons return to prison to serve time after their sentences were incorrectly shorted.

“That will be up to the committee but I think that’s something we’ll talk about,” Lathrop said.

A 2008 Nebraska Supreme Court decision said they could only be allowed to remain free if they didn’t commit new crimes after their erroneous release and proved they didn’t know they were being released too early.

When the news broke this summer that hundreds of prisoners’ sentences had been erroneously shorted since 1995 and 306 inmates released too early, corrections director Michael Kenney created a “temporary alternative placement” program for prisoners who had committed crimes while free and denied entry into a re-entry furlough program by the state parole board.

Kenney testified Friday that despite being told by his chief legal counsel, George Green , he had no legal basis for allowing those inmates to return home, he forged ahead. Green later retired rather than face termination proceedings for his involvement in the sentence miscalculations.

Green outlined his concerns in a memo to deputy corrections director Larry Wayne on July 31, and gave a copy to Kenney.

Green’s notes, which were turned over to the prisons committee, indicated the governor, attorney general and other high-placed people in Heineman’s administration were at a meeting where Kenney’s placement program was discussed.

Lathrop said the Supreme Court ruling said inmates who are accidentally released early could be allowed to remain free only if they didn’t know they were released early and didn’t break the law while out.

Kenney took responsibility for the decision, saying he “took a very lenient view” of a statute saying he can place people in their homes, even though a 1991 attorney general’s opinion said that couldn’t be done without the parole board’s OK.

“I own it,” he said.

But lawmakers were skeptical, given Green’s notes. Kenney said he informed Heineman and the others of his decision, but said he didn’t think he mentioned he was going against his lawyer’s advice.

Lathrop noted the governor and attorney general later called Green and his attorneys incompetent for ignoring a Supreme Court decision, and then Kenney ignored another Supreme Court decision.

He suggested Kenney was falling on his sword for his boss, but Kenney said he wasn’t.

Kenney later broke down under questioning from Mello about calculating the cost of the sentencing fiasco, saying the prison scandals have totally consumed staff, and budgeting and planning has taken a back seat.

“We have been completely preoccupied with all of these things,” he said. “I feel passionately about our agency, our inmates and public safety.”

The committee members discussed possibly calling high-level Heineman officials to testify during their next hearing, tentatively scheduled for Oct. 29.

In other news made during Friday’s nine-hour hearing, two deputy ombudsmen for the state said they tried for years to get Nikko Jenkins treatment and transitioning assistance before he was released from years of solitary confinement into the public, out of fear he would kill. They were right: Within 10 days of his release from a Nebraska prison last year, Jenkins killed four Omahans.

They said the deputy corrections director, Wayne, vowed to “bury” Jenkins in the hole until his release as punishment for his involvement in a prison riot. Wayne later denied that.

Jerall Moreland, assistant state ombudsman, and James Davis, deputy ombudsman, said they suspect prison officials wanted to leave Jenkins in solitary confinement to punish him for assaulting a guard and helping incite a riot. They said they took their concerns all the way to the top of the corrections department: To former director Bob Houston and Wayne.

Houston testified in August that nobody told him about Jenkins’ threats to kill people if released, and Wayne said later Friday nobody told him either. Wayne testified he was very concerned about what Jenkins would do after being released, but all he could do anything about was protect inmates and staff.

Davis testified he had several conversations with Houston about his concerns that Jenkins wouldn’t get treatment and be released into Omaha and murder people.

Working in concert with Sen. Ernie Chambers, the ombudsmen made it clear they were worried Jenkins would kill people in north Omaha if he was released without treatment or transitioning. They said Houston deferred to Wayne and other high-level corrections officials refused to let them see Jenkins’ medical records, which would have alerted them that he’d been deemed by some psychiatrists to be mentally ill and an imminent danger in need of commitment.

Most state mental health professionals believed Jenkins was not mentally ill, but having behavioral problems. Without a mentally ill diagnosis, he couldn’t be committed indefinitely in the state psychiatric hospital, even though he repeatedly warned people he would kill after getting out and asked to be committed.

They said a transition plan to ease Jenkins back into the community wasn’t followed, and he remained in solitary confinement until his release. They said Wayne was more concerned that Jenkins would hurt other inmates or staffers if released into the general population.

Omaha Sen. Steve Lathrop

Davis said after Jenkins assaulted a guard while on release for a funeral, state corrections officials seemed even more intent on labeling his problems as behavioral, not a mental illness, preventing his commitment.

The ombudsmen said they’re concerned about the 183 prisoners also in segregation today. When asked by Sen. Les Seiler, R-Hastings, whether the state is “creating more Nikkos,” Davis said yes.

Wayne agreed with them.

“It’s been happening for years and it’s a huge concern,” he testified later. He said a discharge review team is looking at changes in the wake of the Jenkins case.

Chambers rebuked the governor for blaming lawmakers for not repealing the good time law after the Jenkins murders, and laid the blame for Jenkins’ rampage at the feet of Mark Weilage, a behavioral health administrator for the corrections department. Weilage withheld diagnoses by psychiatrists that Jenkins was mentally ill.

“There did not have to be four murders,” Chambers said. “Those people did not have to die.”

Wayne said he relied upon Weilage’s assessment but admitted corrections officials erred in refusing to talk to the ombudsmen about Jenkins’ mental records.

“We should’ve put it right out there,” he testified.

However, when asked who’s responsible for Jenkins’ release and rampage, Wayne said on some level, Jenkins. Sen. Steve Lathrop said the committee isn’t defending Jenkins, but trying to figure out why he was released.

Wayne had written that Jenkins was being manipulative in wanting to get committed to the Lincoln Regional Center.

“I cannot imagine anybody manipulating their way into a psychiatric confined unit instead of being a free man in six weeks,” Lathrop said. “Maybe he was asking for help?”

“And maybe he chose to do evil acts,” Wayne replied.

Lathrop said the committee thinks Jenkins should get what he deserves, but is trying to figure out where the system broke down.

“It’s heartbreaking to think that maybe you could’ve done something to prevent those people from being killed,” Wayne said. “I have considered that many times.”

Lathrop read from corrections documents indicating the governor’s chief of staff explored using a different calculation of the prison population that would make the numbers look lower, as prisons swelled beyond capacity. And 2011 documents showed corrections officials were trying to get 200 more inmates paroled monthly and get treatment on the outside.

Omaha Sen. Heath Mello’s questioning established that a warden who had been on special assignment to fish for more people to parole, Rex Richard, was later appointed by Heineman to the state parole board.

Wayne confirmed the parole board got pushback for not moving as fast as corrections wanted in paroling people to meet their “budgetary goals” in 2011.

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