Judge has conflict on prison overcrowding issue, declares mistrial in Tecumseh riot case

November 29, 2018 GMT

LINCOLN — A judge who served on a state task force exploring prison overcrowding has recused himself from presiding over a trial concerning the 2015 Mother’s Day riot at the Tecumseh State Prison.

Lancaster County Judge John Colborn declared a mistrial Wednesday morning as the third day of the trial was about to begin.

Former prison inmate John Wizinsky had sued the state, alleging that officials were negligent in not protecting him from other inmates during the riot, which left two inmates dead and more than $2 million in damage.


Among the claims made by Wizinsky’s attorney, Joy Shiffermiller, were that overcrowding at the prison and a shortage of staff to manage inmates were factors that led staff to abandon areas of the prison where rioting broke out, leaving inmates on their own. Those issues were discussed by the task force on which Colborn served.

[More coverage: Riot at Tecumseh State Prison ]

On Wednesday, Colborn said judges are obliged to recuse themselves when they have “personal knowledge of facts that are in dispute.” He said it became clear to him that he had a potential conflict of interest after hearing State Corrections Director Scott Frakes testify Tuesday afternoon about staffing problems at the Tecumseh prison.

The judge abruptly asked for a recess as Frakes was testifying. Shiffermiller said that Colborn, during the recess, disclosed his service on the justice reinvestment task force but that neither she nor the state had asked him to step down.

At the time of the riot, Wizinsky was in protective custody, separated from other general population inmates. Wizinsky testified that he feared attacks from other inmates because he had testified for prosecutors in a murder case.

But after the riot broke out, inmates from protective custody were ordered into a prison mini yard with other general population inmates. Wizinsky testified that he was threatened and feared for his life and that he saw a fellow protective custody inmate nearly beaten to death. He said it caused daily nightmares, frequent panic attacks and his post-traumatic stress symptoms to increase tenfold.

Attorneys representing the Nebraska Department of Corrections disputed that Wizinsky suffered any long-term injuries. They maintained that he couldn’t see into the prison wing where two inmates were found dead and that for a time during the riot he played cards with another inmate.

A new judge will be appointed to preside over the trial. It was not clear Wednesday how long that may take.