One of the two attorneys for a former Norfolk man sentenced to life in prison last July for first-degree murder asked the Nebraska Supreme Court to grant his client a new trial in an appeal brief filed earlier this month.

The 40-page brief, filed March 6 by Robert Kortus of the Nebraska Commission on Public Advocacy, also includes a request for a new sentencing hearing for DeShawn Gleaton Jr. if appropriate. Kortus and Todd Lancaster, also an attorney with the Nebraska Commission on Public Advocacy, represented Gleaton at his seven-day trial in Madison County last May.

A jury convicted Gleaton of first-degree murder, use of a firearm to commit a felony, possession of a firearm by a prohibited person and tampering with a witness. His convictions stem from the July 24, 2020, shooting death of Hailey Christiansen, 29, in Norfolk.

Gleaton’s appeal centers on allegations that District Judge James Kube, who presided over Gleaton’s trial, erred and abused his discretion both during trial and Gleaton’s sentencing hearing.

First, Kortus alleges that the court abused its discretion in admitting expert testimony from longtime Lincoln police detective Robert Hurley pertaining to round trip time (RTT), also called real tool time.

Hurley, in working with the Lincoln-based software company PenLink, produced detailed reports and mapping imagery that showed the location of cellphone activity on the morning of Christiansen’s death. The imagery shown in court was produced by Hurley with historical cell site and round trip time data obtained from cell tower activity.

Kube presided over a hearing pertaining to the admissibility of RTT data in February 2022, less than three months before the trial. The judge ruled that Hurley’s testimony amounted to both technical and specialized knowledge about relevant issues during trial.

Kube also determined that — while Hurley’s data was “not absolute” because his analysis showed only the approximate location of the cellphones belonging to Gleaton and Christiansen and not the whereabouts of Gleaton and Christiansen themselves — the data was “repeatable and reliable.”

Kortus said the decision by Kube to admit Hurley’s testimony is based upon reasons that are untenable or unreasonable and is clearly against justice, conscience, reason and evidence.

“There was no evidence the Pen Link method Hurley used in the present case had been subjected to peer review,” Kortus added. “There was no evidence that any method he has ever used has been subject to peer review. There was no evidence as to potential error rates or maintenance standards for controlling the techniques employed for any method used.”

Second, Kortus alleged prosecutorial misconduct by Madison County Attorney Joe Smith during closing arguments in which Smith spoke to the jury about citizens living by a “social contract.” Kortus alleged that Kube abused his discretion in overruling an objection made by Lancaster during Smith’s closing.

Smith told the jury: “You are here and you've spent seven days because we as a group — whether you call it society or the state, whatever — are in a social contract. And we have rules in that social contract. The rules are you don't kill folk. You particularly don't kill folk in this manner …”

Kortus said prosecutors have a duty to conduct criminal trials in a manner that provides the accused with a fair and impartial trial. They may not inflame the jurors' prejudices or excite their passions against the accused, he said.

“The comments are an invitation to send a message to ‘everybody’ so that justice could be served,” Kortus said. “Second, the remarks were not isolated. They were made in the concluding remarks of the prosecutor’s first statement to the jury — a calculated placement for maximum impact.”

Further, the defense attorney alleged, Smith made additional inflammatory comments during his closing argument, and Kube again should have sustained an objection made by Lancaster.

Smith’s statement: “(Christiansen) was dying, dying hard, dying painfully. She had one thing in her life she would have liked to have clinged on to, even if she was dying, and that was her son …”

After Lancaster objected, Smith explained that he was attempting to explain to the jury why Christiansen did not identify Gleaton as her killer when she was being transported to the hospital in an ambulance. Christiansen’s reasoning, Smith said, could have been because she was trying to protect her son.

Kortus said Smith’s comments were “charged and pretextual.”

During Gleaton’s sentencing hearing in which he faced a mandatory sentence of life in prison, Kube asked Gleaton a series of questions, one being, “Why did you shoot Hailey Christiansen?”

The judge also asked Gleaton about his possible gang involvement, his history of assaulting women, his lack of employment and his marijuana use.

Kortus said many of the court’s questions had been answered by Gleaton in the pre-sentence investigation report.

“One concern is that the purpose of the colloquy was to shame appellant and placate the audience by using appellant as a prop,” Kortus said.

Kortus added that the question Gleaton was asked about why he shot Christiansen put Gleaton in a witness position, although Gleaton did not testify at his trial and was not asked the same question during the pre-sentence investigation.

“Appellant maintained in the PSI that the quality of the evidence to convict him was insufficient. He had signaled an intent to appeal. He did not testify at trial,” Kortus said. “Still, the court wanted appellant to answer why Christiansen was shot.

“The first-degree murder sentence was automatic. The remaining sentences were not. Appellant was placed in a situation of facing adverse consequences for refusing to cooperate with the court’s already hostile colloquy.”

Kortus asked for a reversal of Gleaton’s convictions and a new trial. Moreover, the sentences other than first-degree murder should be vacated and remanded for sentencing before another judge, he said.

The Nebraska Attorney General’s Office, which is handling the appeal, will submit a response brief to be reviewed by the Nebraska Supreme Court.

Gleaton, 31, is serving a sentence of life plus 66 to 82 years.

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