- Associated Press - Saturday, August 16, 2014

OMAHA, Neb. (AP) - Criminal defense attorneys and state lawmakers are raising questions about Nebraska’s state psychiatric hospital in Lincoln after it recently declined a judge’s order to house a convicted killer found too mentally ill to participate in his sentencing.

“The Lincoln Regional Center is not above the law,” attorney Maren Chaloupka, of Scottsbluff, said. “It is expected to provide treatment for persons in state custody with serious mental illnesses.”

The Lincoln Regional Center is the state’s only hospital that treats court-ordered patients, and the Department of Health and Human Services said it’s complying with state law.

The center’s refusal centered on Nikko Jenkins, convicted of the shotgun deaths of four people in three attacks last summer.

Jenkins was found mentally fit enough to stand trial and was even allowed to represent himself. But after he pleaded guilty to four counts of first-degree murder in April, Douglas County District Judge Peter Bataillon found him not competent to participate in the sentencing phase of his case, in which prosecutors are seeking the death penalty.

Bataillon ordered Jenkins to the Lincoln Regional Center last month in an effort to have him restored to competency. But the hospital refused, saying it didn’t have adequate security or a bed for Jenkins.

“I have to admit, that gave me great pause when they said to the judge, ‘No, we can’t do that,’” said state Sen. Kathy Campbell, chairwoman of the Nebraska Legislature’s Health and Human Services Committee. “Can a part of a department of state government say, ‘No, we cannot do that.’?” My guess is that the Health and Human Services Committee will be asking them that question.”

Ultimately, the judge signed off on a plan in which Jenkins will be housed in a Lincoln prison, where hospital staff will go to treat him. That compromise was reached after a state security expert testified that the hospital has no armed guards, no metal detectors and no security towers, making it easy for an inmate like Jenkins to escape and harm others.

Hospital administrators also pointed the 2007 killing of Dr. Louis Martin at the hospital by patient Eric Lewis. Lewis had been placed at the hospital after a Douglas County District judge found him incompetent to stand trial on sexual assault charges.

But since Martin’s death, DHHS officials have not asked the Legislature for funding to increase security at the hospital.

“If they’ve got a problem with security, why haven’t they come to us?” asked Omaha Sen. Ernie Chambers. “They have never asked us for help.”

And they don’t intend to, according to Scot Adams, director of Nebraska’s Behavioral Health Division.

“Nebraska law recognizes this type of situation happens so rarely by allowing for treatment in a variety of settings,” Adams said in an email to The Associated Press, referring to state law that allows a judge to send a defendant found mentally incompetent “to be committed to a state hospital for the mentally ill or some other appropriate state-owned or state-operated facility for appropriate treatment.”

Jenkins’ public defender argues that the law refers to other facilities capable of psychiatric care - not prison.

Some question if the hospital and DHHS officials have opened the possibility of Jenkins’ conviction being overturned on appeal or have made the hospital vulnerable to negligence lawsuits.

“It would seem to me that, from a treatment standpoint, it would be easier to provide security in the Regional Center than providing treatment at a prison,” said Stu Dornan, a former Douglas County prosecutor and now a trial lawyer who serves on the board of the Nebraska Criminal Defense Attorneys Association. “I mean, gee whiz, that’s what they do. They house people who are dangerous with mental health issues. That’s part of their mandate.”

In fact, the hospital currently houses several killers, including Erwin Simants, who was found not guilty by reason of insanity in the shooting deaths of six members of a Sutherland family in 1975, and Shane Tilley, found not guilty by reason of insanity in the January 2006 stabbing death of a friend.

But no dangerous patients came to the hospital after they had already been convicted, Adams said.

“Nikko Jenkins was found competent and guilty of murder,” Adams said in an email. “A correctional facility is the right place for him to be, and treatment will occur sooner.”

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