State v. Jacob, 309 Neb. 401

Steven Jacob was convicted after a retrial for the 1989 double homicide of Melody Hopper and James Etherton; gun never recovered and Jacob received consecutive lengthy prison terms.
Crime-scene evidence included six 9mm spent shell casings and one unfired cartridge, a gauze sample from a living-room stain, a removed storm window with Jacob’s fingerprints, witness identification of Jacob’s vehicle/driver, and inmate statements implicating Jacob.
In 2019 Jacob moved under Nebraska’s DNA Testing Act to retest the shell casings and the living-room gauze, arguing modern techniques might recover DNA identifying someone else who loaded/fired the gun or showing sexual contact on the carpet that could indicate motive or a different sequence of events.
The State verified possession/chain of custody of the items; the district court held a hearing and concluded the requested testing would be inconclusive and would not produce noncumulative exculpatory evidence under § 29-4120(5)(c), and denied testing and appointment of counsel.
Jacob’s subsequent motions (to alter/amend and for a complete bill of exceptions) were deemed abandoned or were addressed; he appealed the denials and the court’s handling of the bill of exceptions.

Issue	Plaintiff's Argument (Jacob)	Defendant's Argument (State)	Held
Denial of DNA testing	Modern testing may recover DNA from casings/gauze that would show others loaded/fired the gun or contradict trial evidence, thus exculpatory	Even if testing finds others’ DNA or lacks Jacob’s DNA, results would be inconclusive and would not negate other strong evidence tying Jacob to the scene	Affirmed denial: testing would not likely produce noncumulative exculpatory evidence under § 29-4120(5)(c)
Appointment of counsel	Counsel should be appointed because DNA testing may be relevant to wrongful-conviction claim	Testing is not likely relevant; therefore counsel is not warranted under the Act	Affirmed denial: Jacob failed to show testing may be relevant, so no counsel required
Motion to alter or amend district court order	Court mischaracterized claims and applied incorrect legal standard; motion sought correction to grant testing	Court enforced local rules and treated motion as abandoned for lack of hearing notice	Affirmed: even if procedural error, Jacob suffered no substantial right because underlying denial of DNA testing was correct
Bill of exceptions	District court failed to produce the full bill of exceptions and took judicial notice of prior trial records	Bill of exceptions was filed and the State/district court did not take judicial notice of prior trials as alleged	Affirmed: bill of exceptions was on the record; Jacob’s praecipe for the entire prior-trial record was unnecessary

State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (explains testing that only shows absence of defendant's DNA can be inconclusive and not exculpatory)
State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (holds absence of defendant DNA on weapons/ammunition is at best inconclusive)
State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (DNA showing victim blood on an accomplice may not prove how blood was deposited and thus may be non-exculpatory)
State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (defines exculpatory-evidence threshold under the DNA Testing Act as relatively undemanding but not limitless)
State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (confirms courts need not order testing where results would not produce exculpatory evidence)