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Disapproved on other grounds by State v. Rejai, 320 Neb. 599 (2026)
272 Neb. 178 , 719 N.W.2d 263 (2006), disapproved on other grounds, State v. Rejai, 320 Neb. 599
The opinion
Connolly, J.,
concurring.
I join the majority opinion. I am, however, prompted to comment regarding how the trial court handled the issue of the spectators’ wearing “memorial buttons.” It is correct that we have a scanty record as to whether the “memorial buttons” affected the jury. However, this problem could have been easily averted. In this emotionally charged trial, the trial judge, at the first whiff of a problem, should have immediately smothered any incident that could have potentially prejudiced a jury.
It is the duty of a trial court to see that defendants in criminal cases are tried by a jury such that not even the suspicion of bias or prejudice can attach to any member thereof. State v. Polinski, 230 Neb. 43 , 429 N.W.2d 725 (1988). “[Certain practices pose *218 such a threat to the ‘fairness of the factfinding process’ that they must be subjected to ‘close judicial scrutiny.’ ” Holbrook v. Flynn, 475 U.S. 560, 568 , 106 S. Ct. 1340 , 89 L. Ed. 2d 525 (1986).
Here, defense counsel informed the court on the second day of voir dire of a potential problem and moved in limine to exclude the buttons. Defense counsel stated at that time that “some of the family [are] starting to wear buttons with Jenna Cooper’s face or photo . . . .” In response to the court’s question, defendant’s counsel also stated that he had seen at least one woman wearing buttons that morning. According to defense counsel’s affidavit, submitted in support of Iromuanya’s motion for new trial, the buttons included some type of slogan. The court’s request of defense counsel for case law on the issue was wholly inadequate to address any potential prejudice. After being informed by counsel that family members were starting to wear the buttons, the court had a duty to immediately determine — out of the presence of the jury — who, if anyone, was wearing the buttons, and the message, if any, the buttons conveyed. Had the court appropriately reacted to the first indication of a potential problem, we would either not be dealing with this issue on appeal or have a sufficient record for review. Instead, after 2 days of trial, according to defense counsel’s affidavit, the court requested that spectators not wear the memorial buttons. In many cases, this will be too little, too late — the infection will have already spread.