When Chris McMahon, a part-time Creighton law student, started writing a paper for the Creighton Law Review, he didn’t know he would eventually be writing a bill that would be passed by the Nebraska Legislature and approved by Gov. Pete Ricketts.
McMahon’s paper focused on hearsay provisions in evidence rules in Nebraska and North Carolina law that render eyewitness pretrial identification or nonidentification of a person inadmissible in court.
“So, for instance, if you’re at the scene of a crime, and you see it happen, that pretrial identification testimony is inadmissible in court,” McMahon says. “And that’s only the case in Nebraska and North Carolina.”
In his research, McMahon came across the 2017 Nebraska Supreme Court case of State vs. McCurry. The case involved Corleone McCurry, who was convicted in 2015 of first-degree murder and two weapons charges in the 2014 shooting death of Timothy Marzettie during an altercation at Marzettie’s Omaha home.
Witnesses told police that the shooting occurred during a home invasion by two intruders, and investigators identified McCurry as a suspect. Following his trial and conviction, McCurry was sentenced to life in prison.
In his appellate brief to the Nebraska Supreme Court, longtime Douglas County Public Defender Thomas Riley, a 1975 Creighton graduate, included an argument that lower courts errored in following the rules of evidence in the case.
Among the issues he cited was the trial court’s decision to sustain a hearsay objection from the prosecution that prevented McCurry’s defense from presenting evidence that an eyewitness was unable to identify McCurry from a lineup of photos. The Supreme Court sided with the state in upholding McCurry’s conviction.
McMahon met with Riley, who agreed that the state’s hearsay exceptions needed to be changed. He told McMahon he should contact state Sen. Steve Lathrop, a 1981 Creighton law graduate, who is head of the Legislature’s Judiciary Committee.
McMahon was able to connect with Lathrop, thanks, at least in part, to Creighton law professor Collin Mangrum, who taught Lathrop, and professor Terry Anderson, who has worked with Lathrop at the Omaha firm Hauptman O’Brien Wolf & Lathrop.
Lathrop met with McMahon, and agreed to introduce LB392 during this year’s session. The purpose of the bill is “bring Nebraska in line with federal rules of evidence by allowing an eyewitness’ pretrial identification or nonidentification of a person, such as the defendant, to be raised at trial. Such identifications (or nonidentifications) would be added to the state’s hearsay exceptions.” Mangrum and McMahon testified in front of the Legislature on behalf of the bill in May.
McMahon and Mangrum, who has been advocating for the changes addressed in the bill for years, met with Nebraska Gov. Pete Ricketts on June 14 at the State Capitol after Ricketts signed the bill. It was a memorable experience for McMahon, who in addition to going to law school works at TD Ameritrade in Omaha.
“I wore a suit, and I usually don’t wear a suit at work,” McMahon says, with a laugh. “When co-workers asked, it was like a punchline to some joke, ‘I have to meet with the governor.’”
While McMahon, who serves as the student articles editor for the Creighton Law Review, is proud to have had a hand in creating legislation, the bill “totally destroyed my paper.” With the law to take effect Sept. 5, the premise of the paper is now moot.
“I may be the first Creighton law student to have ever mooted his own paper,” McMahon says.