State v. Myers, 301 Neb. 756

In 1996-1999 James E. Myers was tried and convicted by a jury for the 1995 murder of Lynette Mainelli; convictions were affirmed on direct appeal.
Evidence at trial included eyewitness testimony tying Myers to the scene and to a .22 handgun; testimony also indicated Myers wore gloves and made inculpatory statements.
In 2016 Myers filed a motion under Nebraska’s DNA Testing Act seeking testing of 26 items (bedding, casings, clothing, a sexual-assault kit, cigarette butts, etc.) to exclude him as a donor and to show another male’s DNA.
Myers also moved for appointment of counsel; he submitted affidavits and a lab report noting “very few spermatozoa” on a vaginal swab from the sexual-assault kit.
The district court denied DNA testing and appointment of counsel, reasoning that DNA results would not exculpate Myers in light of the trial evidence and citing State v. Buckman and related post-testing relief standards.
The Nebraska Supreme Court reversed and remanded, holding the district court applied a post-testing (vacatur/new-trial) standard instead of the lower threshold required to order testing under § 29-4120(5).

Issue	Myers' Argument	State's Argument	Held
Whether district court must order DNA testing under § 29-4120(5)	Testing may produce noncumulative, exculpatory evidence (exclude Myers; show another male)	Testing would not exculpate given witnesses, gloves, inculpatory statements	Remanded: court used wrong (post-testing) standard; must reevaluate under § 29-4120(5) threshold (low)
Whether court properly denied appointment of counsel under the Act	Counsel needed if DNA testing may be relevant to wrongful-conviction claim	Appointment not warranted without showing testing relevance	Remanded: appointment must be reconsidered after correct § 29-4120(5) analysis
Whether claims about nondisclosure/destruction of biological evidence belong in DNA testing motion	Myers argued police withheld a sexual-assault kit sample and that due process/equal protection were violated	State/record did not present this as part of DNA Act framework	Not considered on remand — constitutional destruction/disclosure claims are outside DNA Testing Act motion scope
Whether district court’s factual/conclusory findings without test results were proper	Myers argued court erred by making findings before testing	State relied on trial record and Buckman to argue testing unnecessary	Court erred by relying on vacatur/new-trial standards pre-testing; reversal and remand required

State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (clarifies low threshold to obtain DNA testing and distinguishes higher post-testing standards for vacatur or new trial)
State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (discussed in Buckman regarding relief after DNA results)
State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (recently reiterates standards for DNA testing motions)
State v. Phelps, 273 Neb. 36, 727 N.W.2d 224 (cited for standard of appointing counsel under the DNA Testing Act)