Hess v. State, 287 Neb. 559

Hess was convicted of second-degree murder in 1985 and sentenced to 30 years; conviction upheld on appeal.
The Nebraska Supreme Court later in Myers held malice as an essential element; Hess’s arrest of judgment vacated the conviction and ordered retrial.
Hess later faced Lancaster County charges including escape, kidnapping, felon in possession of a firearm, and use of a weapon to commit a felony, resulting in a life sentence for kidnapping; second-degree murder charges were dismissed.
In 2009 Hess filed a claim under the State Tort Claims Act seeking wrongful conviction compensation; the claim was denied, and Hess brought suit alleging entitlement to damages and counsel.
The district court, after trial, concluded Hess failed to prove he was innocent of the murder; Hess appealed challenging burden, counsel denial, and the use of Lancaster County convictions as background.
The Nebraska Supreme Court affirmed, holding Hess had the burden to prove actual innocence under § 29-4603(3) and did not meet that burden; no reversible error in denying counsel or in referencing exhibit 3.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether claimant bears burden to prove innocence under §29-4603(3)	Hess alleges presumption of innocence applies; no need to prove innocence.	Statute requires claimant to prove innocence by clear and convincing evidence.	Claimant bears burden; actual innocence not shown.
Whether Hess was entitled to counsel under the Act	Citations to federal cases suggest appointment of counsel possible for indigent civil litigants.	Act has no provision for appointing counsel; civil remedies differ from criminal procedures.	District court did not err in denying counsel.
Whether admission of exhibit 3 (Lancaster County convictions) prejudiced Hess	Exhibit 3 allegedly connected to eligibility for compensation.	Exhibit 3 was background and not dispositive of §29-4603 showing.	Not reversible error; district court’s dismissal based on §29-4603 burden.
Whether actual innocence is required under §29-4603(3) and not merely legal innocence	Presumption of innocence equates to legal innocence; no need to prove actual innocence.	Statute requires actual innocence; must prove absence of prerequisites for sentence.	The court interpreted §29-4603(3) to require actual innocence; Hess failed to prove it.
Effect of prior doctrines or cases on Hess’s claim	Lower court erred by following prior rulings.	Statutory scheme governs; prior case law limited to relevant issue.	No reversible error; statutory burden controls.

State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013) (Neb. 2013) (discusses burden under §29-4603(3))
McMullin Transfer v. State, 225 Neb. 109, 402 N.W.2d 878 (1987) (Neb. 1987) (baseline burden concepts under Act)
In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012) (Neb. 2012) (statutory clear and convincing standard applied)
In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010) (Neb. 2010) (statutory interpretation regarding burden and purpose)
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013) (Neb. 2013) (statutory interpretation and avoidance of superfluous language)
State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994) (Neb. 1994) (reversed for malice instruction issue in homicide case)
Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010) (Neb. 2010) (context for prior case law overruled in later decisions)
Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988) (Neb. 1988) (civil proceedings vs. criminal standards)
Allen v. Sheriff of Lancaster Cty., 245 Neb. 149, 511 N.W.2d 125 (1994) (Neb. 1994) (authority on civil procedure and related matters)
Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013) (Neb. 2013) (cited for related procedural context)