Bank killer's case to be argued in top court
Posted: Sunday, November 30, 2008
OMAHA, Neb. (AP) -- The ringleader of the Norfolk bank killers will ask the state's highest court Tuesday to overturn his death sentence because Nebraska didn't have a valid death penalty law at the time of the crime.
Parts of Jose Sandoval's argument mirror the case made earlier this year by Jorge Galindo, an accomplice to the failed bank robbery that left five people dead.
Sandoval, Galindo and Erick Vela were found guilty and sentenced to death. The lookout, Gabriel Rodriguez, was given five consecutive life sentences.
In Nebraska, death penalty cases are automatically reviewed by the state Supreme Court, and Sandoval's lengthy appeal raises a number of concerns. But prosecutors argue that nothing in Sandoval's appeal should prevent his execution.
Sandoval's attorneys argue on the day of the crime -- Sept. 26, 2002 -- the state's method of sentencing killers to death was unconstitutional.
The U.S. Supreme Court had ruled three months earlier -- on June 24, 2002 -- that a jury, not a judge, must weigh whether a killing merits a death sentence or life in prison. In Nebraska, judges had handed down death sentences since the 1970s.
The state Legislature changed the law before Sandoval was sentenced.
"The people of the State of Nebraska were on notice after the (Supreme Court decision) that the death penalty in Nebraska was dead," according to Sandoval's appeal. "It was only after the murders in Norfolk on September 26, 2002, that it needed to be given 'life."'
The state said in its response brief that the new sentencing law "never affected this penalty and therefore never changed the punishment for murder in the first degree."
"Death has been the maximum penalty for murder in the first degree in Nebraska since 1973," the state said.
Prosecutors said Sandoval personally killed three people, including a bank customer, while his partners fanned out and killed two employees at the bank about 90 miles northwest of Omaha. The botched heist was one of the deadliest in U.S. history.
Killed were assistant bank manager Lola Elwood, customer Evonne Tuttle and employees Jo Mausbach, Samuel Sun and Lisa Bryant.
The appeal criticizes Sandoval's trial counsel, who worked as a Madison County public defender. The appeal argues Sandoval's trial lawyer was incompetent and "having a personal war with the Madison County Commissioners over funding."
The state said Sandoval's attorney wasn't incompetent and there was no conflict of interest.
Also at issue is whether Sandoval took LSD the morning of the crime. He told investigators he saw "black shadows" and a blue cartoon Smurf at the bank, and that he "jumped a fence and shot the smurf in the stomach."
"The appellant did not remember shooting his gun, except at the smurf," according to his appeal. "He did not remember shooting at any people."
Sandoval, his defense argues, suffered a "substance-induced psychotic episode."
The state counters that there was "no evidence of LSD use before the robbery," and plenty of evidence that Sandoval planned the robbery for months.
Prosecutors said the robbery was Sandoval's idea, and when Galindo and Vela appeared ready to back out, Sandoval "was mad because he did not want come all this way only 'to chicken out."'
"Sandoval testified that he convinced them to go ahead with the plan and rob the bank," according to the state's brief.
Another section of the appeal is about the electric chair, arguing that it's cruel and unusual punishment.
But the Nebraska Supreme Court ruled in February -- after the appeal was filed -- that electrocution is cruel and unusual punishment.
Electrocution was the state's only means of execution, and already Vela, who pleaded guilty to five counts of first-degree murder, has asked his sentence be changed from death to life imprisonment, citing the state's lack of a constitutional method of execution.
The state Supreme Court said repeatedly in its ruling that it did not strike the death penalty -- just electrocution as the method.
Attorney General Jon Bruning is studying other possible methods of execution, and the Legislature will probably decide next year whether to change the method to lethal injection.
One of the aggravators the state sought was that Sandoval had a "substantial prior history of serious assaultive or terrorizing criminal history."
Earlier this year, Sandoval pleaded guilty to murdering Travis Lundell and Robert Pearson months before the bank slayings.
Lundell's murder was linked to Sandoval, Vela, Galindo and Rodriguez during the U.S. Bank investigation. Lundell's body was found in a shallow grave outside Norfolk in March 2003. He disappeared in August 2002, about a month before the bank murders.
Sandoval contacted prosecutors about Pearson's murder last year and eventually led officials to where Pearson was buried. Pearson disappeared in January 2002.
Sandoval said in court that his conversion to Christianity compelled him to come forward about Pearson's and Lundell's murders. Sandoval received two life sentences for those murders.
Parts of Jose Sandoval's argument mirror the case made earlier this year by Jorge Galindo, an accomplice to the failed bank robbery that left five people dead.
Sandoval, Galindo and Erick Vela were found guilty and sentenced to death. The lookout, Gabriel Rodriguez, was given five consecutive life sentences.
In Nebraska, death penalty cases are automatically reviewed by the state Supreme Court, and Sandoval's lengthy appeal raises a number of concerns. But prosecutors argue that nothing in Sandoval's appeal should prevent his execution.
Sandoval's attorneys argue on the day of the crime -- Sept. 26, 2002 -- the state's method of sentencing killers to death was unconstitutional.
The U.S. Supreme Court had ruled three months earlier -- on June 24, 2002 -- that a jury, not a judge, must weigh whether a killing merits a death sentence or life in prison. In Nebraska, judges had handed down death sentences since the 1970s.
The state Legislature changed the law before Sandoval was sentenced.
"The people of the State of Nebraska were on notice after the (Supreme Court decision) that the death penalty in Nebraska was dead," according to Sandoval's appeal. "It was only after the murders in Norfolk on September 26, 2002, that it needed to be given 'life."'
The state said in its response brief that the new sentencing law "never affected this penalty and therefore never changed the punishment for murder in the first degree."
"Death has been the maximum penalty for murder in the first degree in Nebraska since 1973," the state said.
Prosecutors said Sandoval personally killed three people, including a bank customer, while his partners fanned out and killed two employees at the bank about 90 miles northwest of Omaha. The botched heist was one of the deadliest in U.S. history.
Killed were assistant bank manager Lola Elwood, customer Evonne Tuttle and employees Jo Mausbach, Samuel Sun and Lisa Bryant.
The appeal criticizes Sandoval's trial counsel, who worked as a Madison County public defender. The appeal argues Sandoval's trial lawyer was incompetent and "having a personal war with the Madison County Commissioners over funding."
The state said Sandoval's attorney wasn't incompetent and there was no conflict of interest.
Also at issue is whether Sandoval took LSD the morning of the crime. He told investigators he saw "black shadows" and a blue cartoon Smurf at the bank, and that he "jumped a fence and shot the smurf in the stomach."
"The appellant did not remember shooting his gun, except at the smurf," according to his appeal. "He did not remember shooting at any people."
Sandoval, his defense argues, suffered a "substance-induced psychotic episode."
The state counters that there was "no evidence of LSD use before the robbery," and plenty of evidence that Sandoval planned the robbery for months.
Prosecutors said the robbery was Sandoval's idea, and when Galindo and Vela appeared ready to back out, Sandoval "was mad because he did not want come all this way only 'to chicken out."'
"Sandoval testified that he convinced them to go ahead with the plan and rob the bank," according to the state's brief.
Another section of the appeal is about the electric chair, arguing that it's cruel and unusual punishment.
But the Nebraska Supreme Court ruled in February -- after the appeal was filed -- that electrocution is cruel and unusual punishment.
Electrocution was the state's only means of execution, and already Vela, who pleaded guilty to five counts of first-degree murder, has asked his sentence be changed from death to life imprisonment, citing the state's lack of a constitutional method of execution.
The state Supreme Court said repeatedly in its ruling that it did not strike the death penalty -- just electrocution as the method.
Attorney General Jon Bruning is studying other possible methods of execution, and the Legislature will probably decide next year whether to change the method to lethal injection.
One of the aggravators the state sought was that Sandoval had a "substantial prior history of serious assaultive or terrorizing criminal history."
Earlier this year, Sandoval pleaded guilty to murdering Travis Lundell and Robert Pearson months before the bank slayings.
Lundell's murder was linked to Sandoval, Vela, Galindo and Rodriguez during the U.S. Bank investigation. Lundell's body was found in a shallow grave outside Norfolk in March 2003. He disappeared in August 2002, about a month before the bank murders.
Sandoval contacted prosecutors about Pearson's murder last year and eventually led officials to where Pearson was buried. Pearson disappeared in January 2002.
Sandoval said in court that his conversion to Christianity compelled him to come forward about Pearson's and Lundell's murders. Sandoval received two life sentences for those murders.
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