Nebraska Supreme Court says death row inmate in Grand Island case filed appeal too late

August 4, 2018

LINCOLN — The Nebraska Supreme Court says a death row inmate missed a deadline for filing a motion that could have resulted in a new trial in his case.

Marco Torres Jr., 43, of Grand Island sought to challenge the constitutionality of Nebraska’s death penalty sentencing procedure, which splits the job between juries and judges. He cited a 2016 U.S. Supreme Court decision that struck down a similar sentencing arrangement in Florida because the court had previously ruled that juries must determine all facts necessary to sentence a defendant to death.

In an opinion released Friday, the Nebraska high court didn’t take up the constitutional challenge. Instead, it affirmed a decision by Hall County District Judge James Livingston, who dismissed the motion because of the missed deadline.

The lower court held that Torres needed to file his motion within one year of the decision in the Florida case. Torres filed his motion in June 2017, about five months past the one-year deadline.

A jury convicted Torres in the March 2007 shootings of Ed Hall and Tim Donohue in a Grand Island home owned by Hall. Both men were slain by multiple gunshots fired at close range.

The Supreme Court has previously upheld his conviction and sentence on direct appeal and last year rejected innocence claims contained in another post-conviction motion.

In Nebraska capital cases, juries decide guilt or innocence before holding a second trial phase to determine whether aggravating factors exist to warrant a death sentence. Afterward, a three-judge panel weighs the aggravating factors against evidence in the defendant’s favor before declaring a sentence.

Torres is one of 12 men on Nebraska’s death row. The state intends to carry out its first execution in 21 years on Aug. 14 by putting double-killer Carey Dean Moore to death via lethal injection.