Defendant conivcted of incest loses appeal

A defendant convicted of incest lost his appeal today in the Nebraska Supreme Court because he or his counsel failed to notify the Nebraska State Attorney General that he would contest the constitutionality of the criminal statutes he violated (State v. Johnson, 269 Neb. 507, March 25, 2005. No. S-02-1503.). Nebraska Statute section 28-703 prohibits sexual contact between adults and minor stepchildren. Section 43-2101 defines "minor" as any unmarried child under the age of nineteen. ON appeal the Defendant admitting that he had some sexual contact with a stepchild argued that because some references in Nebraska law to minors suggest different ages, that the criminal statute forbidding sexual contact with minor stepchildren was vague. The court first held that the defendant failed to notify the Attorney General that he would contest constitutionality of 28-703, noting the strict rule of procedure 9E (separate notice required to Clerk of Supreme Court when challenging constitutionality of statute). In any event the Court noted that the Defendant did not attempt to quash or dismiss the incest charge with an argument that the law was facially invalid. Justices Gerrard, Wright, Connolly and McCormack dissented, arguing that the Court should have considered a facial challenge to the incest law because of plain error. Oh well, I guess that this Defendant will have to wait to see how his ineffective counsel on appeal claim will go unlike our friend Kimberly Faust who stole lightning in a bottle when her first convicting went back from the Supremes because it found she had ineffective counsel, and from a direct appeal at that. Since any lawyer named McArthur is anathema to the Supremes, Mr. Johnson seems to have a pretty good shot going that route.