Nebraska Supreme Court probes sentencing gap in same-sex assault case
Justices examined whether a judge's remark about being 'the law' created an appearance of bias when one defendant received prison and another probation.
By Ayanda Boateng ·
Two men who pleaded no contest to first-degree sexual assault of the same 15-year-old boy faced drastically different outcomes in Douglas County, with one sentenced to 30 years in prison and the other to probation. The Nebraska Supreme Court heard oral arguments on Tuesday regarding whether that disparity warrants a reversal of the second sentence.
The core issue centers on a comment made by District Court Judge Richard McGowan during Bradley Perry's sentencing. When questioned by attorneys, McGowan stated, “I am the law. The governor (Pillen) has entrusted me to make this decision.” Cody Barnett, representing the Nebraska Attorney General’s Office, argued the remark could have appeared biased to a reasonable observer. Barnett suggested the statement might signal a bias against the state or an effort by McGowan to distinguish himself from his predecessor, Judge Derek Vaughn.
The sentencing disparity arose because of a judicial transition. Eric Bergstrom received a 30-year prison term under Judge Vaughn, who was later promoted to the Nebraska Supreme Court. Governor Jim Pillen appointed McGowan to the district court bench shortly after. McGowan then sentenced Perry, who committed the same acts against the same victim on a different occasion. Court documents indicate both defendants met the victim online, knew his age, entered his home through a basement window, and recorded the encounter.
Perry’s legal team, led by attorney Stu Dornan, contended that probation falls within the statutory range for first-degree sexual assault. Dornan emphasized that Perry also received a mandatory three-year prison term for child pornography. “He’s got to do three years, a hard three years, and then he has to finish probation, and then he has to abide by the sex offender registry laws for an extended period of time,” Dornan told the court. He added that Perry “didn’t get off scot-free at all.”
The justices acknowledged that appellate courts rarely intervene in sentencing decisions. Chief Justice Jeffrey Funke noted that the court often disagrees with a trial judge’s choice but does not find an abuse of discretion. Barnett responded that the state is not asking the high court to lower that standard. “The state is simply saying that there were errors here that constitute that rare abuse of discretion,” Barnett said. The court did not announce a timeline for its decision.
The case, State of Nebraska v. Perry, will determine if the matter returns to Douglas County District Court for correction. The court’s focus remained on whether McGowan’s comment and the sentencing difference rose to the level of a rare error in judgment.
