State v. Jacob, 309 Neb. 401

In 1989 Steven Jacob was tried, convicted, retried, and reconvicted for the double homicides of Melody Hopper and James Etherton; he received consecutive life and long-term sentences.
Crime-scene evidence included six 9-mm spent shell casings, one unfired 9-mm cartridge, a removed storm window with Jacob’s fingerprints, and a gauze/carpet stain from the living room. The 9-mm weapon was never recovered.
Witnesses placed Jacob at or near the scene (Ingram’s eyewitness identifications), and a cellmate testified Jacob made inculpatory statements.
In 2019 Jacob moved under Nebraska’s DNA Testing Act to have modern DNA testing performed on the casings and the living-room stain, arguing such testing could show someone else loaded/fired the gun or show biological evidence supporting an alternate theory.
The district court ordered inventory/retention of the items but denied the motion, concluding testing would not produce noncumulative, exculpatory evidence under Neb. Rev. Stat. § 29‑4120(5)(c); it also denied appointment of counsel and later deemed Jacob’s motion to alter or amend abandoned for procedural noncompliance.
Jacob appealed; the Nebraska Supreme Court affirmed the denial of DNA testing, counsel appointment, and the procedural denial of the motion to alter or amend.

Issue	Jacob's Argument	State's Argument	Held
Denial of DNA testing	Modern testing of casings/gauze may identify another person’s DNA and exculpate him	Absence of Jacob’s DNA or presence of others’ DNA would be inconclusive/speculative and not exculpatory	Affirmed: testing would not likely produce noncumulative, exculpatory evidence under §29‑4120(5)(c)
Appointment of counsel for DNA motion	Counsel should be appointed because DNA testing may be relevant to wrongful conviction claim	Jacob failed to show DNA testing may be relevant because testing would not be exculpatory	Affirmed: no appointment because testing not shown relevant
Motion to alter or amend district court order	Court misapplied the standard and should have granted testing; motion did not require a hearing	Court ruled motion abandoned for failure to set hearing per local rule	Affirmed: even assuming error, no substantial right lost because underlying denial of DNA testing was correct
Bill of exceptions production	District court failed to produce the requested full bill of exceptions, hiding judicial-notice action	Record shows a bill of exceptions was filed and the court did not take judicial notice of prior trial records	Affirmed: bill was filed and Jacob’s requests were unnecessary; no reversible record defect

State v. Buckman, 267 Neb. 505 (defines “exculpatory evidence” standard under Nebraska’s DNA Testing Act)
State v. Myers, 304 Neb. 789 (absence of defendant’s DNA on casings is at best inconclusive and not necessarily exculpatory)
State v. Dean, 270 Neb. 972 (DNA testing of firearm/ammunition would be inconclusive and not exculpatory given other evidence)
State v. Lotter, 266 Neb. 758 (DNA evidence "is not a videotape"; presence of a victim’s blood on another person’s items does not by itself establish how it was deposited)
State v. Ildefonso, 304 Neb. 711 (confirms courts need not order testing when it would not produce exculpatory evidence)