Research for NET News documentary includes a century of documents and news reports

Feb. 8, 2013, 6:30 a.m. ·

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The NET News documentary explores the origins and evolution of capital punishment in Nebraska. "...until he is dead. A history of Nebraska's death penalty" premieres this week and can be viewed online. Senior producer Bill Kelly spoke with radio host Genevieve Randall about the research and surprising findings he encountered while finishing the project.

Genevieve Randall: Why a history of the death penalty?

Bill Kelly: Now I think a lot of people have wondered how we got to where we are today. Nebraska ended the use of the electric chair in 2008 and just a year later authorized use of lethal injection. And what we didn’t want was another program that was a simple debate. Some people are for it. Some people are against it, but people know those arguments almost by heart now. I had never heard anybody talk about how we got to where we are today. So when you start talking about what Nebraska did as a territory, as a state, the fact that there has always been opposition to the death penalty, the different methods used, people’s attitudes, all that has changed over the years.

Randall: Was it difficult research to do?

Among the documents discovered during research: the handwritten letter from condemned killer Gottlieb Neigenfind asking for forgiveness. (Photo courtesy of Nebraska State Historical Society)

It was harder than we thought! As it turned out, there had not been a lot of research done in certain aspects. And even people who have been deeply involved in death penalty cases would tell us they weren’t entirely sure, for instance, why Nebraska chose to move to the electric chair in the 1920s when it did and how that debate occurred and what the rationale was.

I was glad I had to do the deep research because it allowed me to read the original newspaper accounts, the original documents the governors had written when somebody was seeking their reprieve from the death penalty. The original laws and the like. So that was fascinating. It was good for me to do that.

Randall: What were the earliest executions like and how do those compare to more recent executions?

Kelly: There could not be a more distinct difference in the history than how executions were carried out. Initially, these were very public, very raucous events and even when state law said that the counties who were originally responsible for executions had to build fences around the gallows to block the community’s view of it, people would literally just go in and tear it down. And the sheriff would say, well you know, these things happened, but we’ll proceed if you guys decide to behave, then we’ll proceed with it. Hundreds, sometimes thousands of people would come into town to watch these events and they were pretty brutal. And at some of them there were photographers on hand to document the execution.

Randall: So what have been the challenges then to the use of the death penalty in the state?

Kelly: There has been opposition to the death penalty in Nebraska literally from the very start. There are records at the first constitutional convention that some people attempted to organize to block the death penalty from being in the state’s constitution. It by a very sizable margin, it’s retained, but there’s also the addition of the phrase that there is a ban on the use of “cruel and unusual” punishment, which duplicates what it said in the U.S. Constitution. And so there’s a reinforcement that while the state is going to do it, it has an obligation to do it in as a humanely a way as possible. Throughout the state’s history, there are governors who speak out against it. There are attempts in the Legislature on a number of occasions to get it repealed. None of them are successful.

The only other case where it came very close was in the 1970s during the administration of Governor Charles Thone. The Legislature passes it, the governor vetoes it, but there are not enough votes to override the veto. Senator Ernie Chambers, as most people know, is a major proponent for ending the death penalty. He has introduced a bill almost every year while he was in the Legislature attempting to get it repealed. And it has never gained ground since.

Quote from the 1888 New York State Commission report on the humane use of capital punishment. (Graphic by Lisa Craig, NET)

Why did Nebraska change from hanging to the electric chair?

Kelly: The state of New York had already begun using the electric chair more than 20 years earlier. That’s a remarkable story because the state of New York authorized the creation of a commission to analyze methods of execution. There’s this incredible document where they literally go through and list every method of execution known to man, everything from drawing and quartering to burning at the stake. And they include lethal injection even back then. And they decide that the use of the electric chair is the most humane way to end a person’s life.

Twenty years later, a number of states have already (chosen the electric chair), so Nebraska is kind of at the back end of this. That’s interesting because 50 years later Nebraska finds itself to be the last state in the union to rely on the electric chair as its sole means of execution. While there has always been support (for capital punishment), there has also been this reluctance to change the method in the state even when other states had already made that choice.

A postcard, once sold in the Nebraska Penitentiary gift shop, shows a prison employee demonstrating the new electric chair, circa 1930s. (Photo courtesy of Nebraska Department of Correctional Services)

What do we know about Nebraska’s electric chair itself? Where did it come from? How was it used?

Kelly: Not as much as you might think. The Department of Corrections believes that it was a local carpenter who manufactured it. It was the same chair itself in all of the states’ executions. Until it was retired, they changed the electrical equipment over the years. But really the only thing that changed was the electric equipment over the years.

Randall: Were there some oddities you came across in your research?

Kelly: There were lots of oddities. There’s the very first time the state utilized the electric chair, they brought in an expert executioner, from the state of New York, who was literally run out of town with a threat of lynching. A threat of being killed by the death penalty opponents.

Prior to that the state’s gallows was a very unique piece of machinery and I saw no other record of something similar in the country. It was an electrically-powered mechanical gallows with five buttons at one point where five different witnesses would hit the button so nobody would know who actually flipped the switch that opened the trap door and caused the gentleman to die. It was designed to—it was designed to both seal the identity of the person carrying out the execution, but also so they wouldn’t bear the guilt of being associated with it as well. It seems an odd notion, but it also got very favorable publicity from the state’s editorial pages at the time too.

Randall: And also to protect (the execution team) from the public?

Kelly: That’s very true. The identities of the witnesses initially were always public. And then you can see in the press accounts little by little they begin to go farther and farther in the background to the point where the prison system decides that the names should be kept private and then eventually even state law is changed to protect the identity of people involved in the execution. There have always been witnesses. Nebraska has never held its executions in secret. So but the witnesses were always third parties or people who had a connection to the crime, maybe a county attorney, sometimes even victims or survivors of the crime as well were on hand.

Randall: So how does Nebraska’s use of capital punishment through history compare to other states?

Kelly: Nebraska has used the death penalty very conservatively. When you compare it to other states, especially like Florida and Texas, where there have been hundreds of executions, Nebraska’s had a handful. In fact, one of the most surprising things (we learned in our research) was Nebraska is actually responsible for more illegal lynchings in its history than legal executions. It has been used very sparingly. The cases that are on the books have been controversial at times, but there has been a real tempered response to when it was used and how quickly it was used.

Randall: And when did Nebraska change to lethal injection?

Kelly: Nebraska changed to lethal injection in 2009. And since then, there has not been an execution carried out. It’s still tied up in the courts. There are a couple of Supreme Court decisions. Nebraska State Supreme Court decisions will determine how that proceeds.

The remains of Gottlieb Neigenfind, the first man hung at the Nebraska penitentiary,

are buried on Grasshopper Hill, the prison graveyard no longer in active use.