Palmer v. Clarke (293 F. Supp. 2d 1011, 2003)

MEMORANDUM and ORDER

BATAILLON, District Judge.

This matter is before the court on Charles Jess Palmer’s third amended petition for a writ of habeas corpus. Filing No. 44. Charles Jess Palmer has been on death row since 1979. He has been convicted of capital felony murder and sentenced to death three times under Nebraska’s Death Penalty Statute, Neb.Rev.Stat. § 29-2523. The court has carefully reviewed the voluminous record in this case and the numerous submissions of the parties at this and earlier levels of the proceedings and now concludes that Charles Jess Palmer has been sentenced to death in violation of the United States Constitution.

I. Background

A. First Trial

Palmer was tried and convicted of first degree murder under a felony-murder theory in 1979 for the death of Eugene Zimmerman. The state’s case against Palmer in the first trial was based largely on circumstantial evidence. The evidence adduced at Palmer’s trial shows that Zimmerman was found murdered in his residence above his coin shop in Grand Island, Nebraska, on March 6, 1979. State v. Palmer, 210 Neb. 206, 313 N.W.2d 648, 649 (1981) (“Palmer I”). The evidence also shows that before the trial, the victim’s wife, Monica Zimmerman, and two other witnesses, Deanna Klintworth and Jim Mracek, had been hypnotized during pretrial interviews to refresh their recollections. Palmer I, 313 N.W.2d at 653; Trial I Tr., Vol. VI at 886-887. They all testified that they had seen Palmer in Grand Island at or near the time of the murder. Monica Zimmerman testified that she had seen Palmer and his wife and child in Grand Island on several occasions before the murder. Trial I Tr., Vol. III at 355. She testified that she had first seen Charles and Cherie Palmer at the coin shop in October 1978 and she identified Palmer as the man who had been at Zimmerman’s residence and coin shop in late 1978. Id. at 345. Deanna Klintworth testified that she had seen a man, a woman, and a baby exit the Zimmerman house and coin shop at 4:45 p.m. on March 6, 1979. Trial I Tr., Vol. TV at 456-58. Jim Mracek testified that he had seen Zimmerman in the 7-Eleven coffee shop with a man, a woman, and a baby on that day. Trial I Tr., Vol. VI at 886. The testimony of the witnesses that had been refreshed under hypnosis was the only direct evidence that tied Palmer to the murder. Trial I Tr., Vol. Ill at 371, Vol. IV at 455-456.

The evidence also shows that earlier in the day on March 6, 1979, “C. Palmer” had received a ticket for an equipment violation at a highway checkpoint nine miles south of Hastings, Nebraska, which was midway between Grand Island, Nebraska, and Guide Rock, Nebraska, where Palmer was living at the time of the murder. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. Ill at 428. The owners of a dog farm where Palmer had been employed in Guide Rock testified that they last spoke with him on March 18, 1979. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. Ill at 299, 303-304, 317. Palmer had arranged for a neighbor to take care of the dogs on March 19, 1979. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. Ill at 676-678. The neighbor testified he believed Palmer left Guide Rock on March 19 or 20, 1979. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. Ill at 679.

The evidence adduced at the trial further shows that law enforcement authorities were later alerted to Palmer’s whereabouts when a coin dealer in Austin, Texas, contacted the police after he purchased several items from Palmer, including items that had been stolen from Zimmerman’s coin shop. Palmer I, 313 N.W.2d at 651-652; Trial I Tr., Vol. IV at 577, 580, 586-587. The police instructed the coin dealer to call them if Palmer were to initiate contact again. Palmer I, 313 N.W.2d at 651-652; Trial I Tr., Vol. IV at 589. Palmer later did so and the coin dealer immediately called the police. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. IV at 579-580. The police officer testified that he did not have time to obtain an arrest warrant in the twenty minutes between the call and the arranged meeting. Palmer I, 313 N.W.2d at 652.

The jury returned a guilty verdict. Pursuant to the Nebraska death penalty statute in effect at the time, Neb.Rev.Stat. § 29-2521, a three-judge panel conducted a sentencing hearing. At the sentencing hearing, the prosecutor sought to apply two statutory aggravators under Neb.Rev. Stat. § 29-2523. Trial I Tr., Vol. VIII at 985. The prosecutor argued: (1) that the murder had been “committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of the crime,” under Neb.Rev. Stat. § 29 — 2523(1) (b); and (2) that the murder was “especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence” under Neb.Rev.Stat. § 29-2523(l)(d). Id. Palmer’s counsel conceded the applicability of the “murder to conceal crime” aggravator, stating, “I have no qualms with [the prosecutor’s] conclusion with regard to subparagraph ‘b.’ I think there is obvious evidence in the record that you could justify that.” Trial I Tr., Vol. VIII at 988.

A three-judge sentencing panel sentenced Palmer to death, as provided in Neb.Rev.Stat. § 29-2520 (1980). Nebraska v. Palmer, No. 30-011, Hall Co. Clerk’s Rec. (“St.Ct.File”), Vol. I at 173-83, Order of Sentencing (Aug. 27, 1980). The sentencing panel found that both aggravating factors applied. It found no mitigating circumstances applied and noted that “the defendant in this case has stood mute and offered no evidence of any mitigating circumstance whether or not such mitigating circumstance was described by the statute.” Id. at 181.

Palmer’s first conviction and sentence were reversed on appeal. Palmer I, 313 N.W.2d at 654-55. The Nebraska Supreme Court found the trial court had committed reversible error in admitting the hypnotically-induced testimony of Monica Zimmerman, Deanna Klintworth and Jim Mracek. Id. at 653.

B. Second Trial

Palmer was retried in 1982 and was again convicted. Between the first and second trials, Cherie Palmer, Charles Palmer’s wife, had filed for divorce in Texas. The prosecutor sought to use her testimony at the second trial since it would no longer be barred by Nebraska’s statutory ban on testimony by a spouse. Trial II Tr., Vol. I at 25-26. He successfully moved for a continuance of the trial once. Id. at 50. The divorce was granted in Texas on March 12,1981, and the prosecutor moved for a second continuance in anticipation of an appeal of the divorce decree. Id. at 55; Ex. 1. The trial court overruled the second motion and the case proceeded to trial. Id.

The evidence adduced at the second trial again circumstantially linked Palmer to the murder. Importantly, Cherie Palmer’s testimony was admitted over an objection that it violated spousal immunity. Id., Vol. II at 292-93. She testified that she, Charles Palmer, and their child traveled to Grand Island on March 6, 1979, to sell some diamond rings to Zimmerman. Id. at 309-11. She went on to testify essentially that Palmer murdered Zimmerman. Id. at 312-23. According to Cherie Palmer, Charles Palmer hit Zimmerman and took him upstairs. Id. at 314-16. She later heard a thump and a “course sounding voice ... a chant sort of voice.” Id. at 320. Cherie Palmer’s testimony was thus the strongest evidence that linked Palmer to the murder.

A three-judge panel again sentenced Palmer to death, finding the same two aggravators that were found in the first trial. St. Ct. File, Vol. II at 419-34, Order of Sentence (July 19,1982).

Palmer’s second conviction was also reversed on direct appeal. State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983) (“Palmer II”). The Nebraska Supreme Court found the trial court’s admission of Cherie Palmer’s testimony violated the spousal privilege statute. Id. at 282, 338 N.W.2d 281. Shortly after Palmer II was issued, but before Palmer’s third trial, the Nebraska Legislature passed new legislation that limited the application of the spousal privilege. See 1983 Neb. Laws, L.B. 696. The statute was amended to provide that the privilege could not be claimed “in any criminal case where the crime charged is a crime of violence.” Neb.Rev.Stat. § 27-505(3)(A) (Reissue 1985).

C. Federal Pretrial Double Jeopardy Challenge

Before his third trial Palmer filed a pro se action in federal district court raising an ex post facto and double jeopardy challenge. See Palmer v. Clarke, No. 4:84CV144, Filing No. 1, Petition for Ha-beas Corpus Relief (D.Neb. Feb. 29, 1984) (“Fed.Ct.File”). He contended that both his second trial violated double jeopardy and his impending trial would violate double jeopardy because the evidence, excluding inadmissible evidence, was insufficient to convict him in either the first trial or the second trial. He sought a stay to prevent the state from trying him again because a finding of insufficient evidence would amount to an acquittal and would trigger double jeopardy protections. Id. The federal district court first dismissed the claim as premature. Id. at Filing No. 2 (D.Neb. March 1, 1984). That dismissal was reversed by the Eighth Circuit in Palmer v. Drum, No. 84-8041 (8th Cir. May 10, 1984) (unpublished opinion). See Fed. Ct. File at Filing No. 8. The Eighth Circuit remanded the case to district court for reconsideration in light of the Supreme Court’s holding in Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) (plurality opinion), that exhaustion of a double jeopardy claim does not require a defendant to undergo a second trial. Fed. Ct. File, Filing No. 8 at 2-3. On remand, the district court again dismissed, this time finding the petition meritless and frivolous. See id. at Filing No. 14, Memorandum and Order (D.Neb. May 22, 1984) (ruling that the Double Jeopardy Clause is not violated by a retrial after a conviction is reversed for evidentia-ry error rather than for insufficient evidence).

Palmer again appealed to the Eighth Circuit. Meanwhile, because the federal district court had denied Palmer’s motion for a stay, id. at Filing No. 15, Palmer was tried and convicted for the third time in June 1984. The Eighth Circuit Court of Appeals held the action in abeyance pending resolution of all proceedings in the Nebraska state courts. See Palmer v. Grammer, 863 F.2d 588, 590 (8th Cir.1988) (“Palmer (Fed.) I ”). In 1986, the Nebraska Supreme Court affirmed Palmer’s conviction and sentence on Palmer’s direct appeal, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986) (“Palmer III ” or “direct appeal”). The Eighth Circuit then addressed Palmer’s double jeopardy challenge. Palmer (Fed.) I, 863 F.2d at 590-92. The Eighth Circuit agreed that Palmer’s claim, as written, lacked merit, but remanded the case to the district court to allow Palmer to amend his petition. Id. at 594. It specifically found that “[a] properly exhausted and nonprocedurally barred claim by Palmer challenging the sufficiency of all the evidence in his first or second trial (or both) would constitute a cognizable double jeopardy claim.” Id.

On remand, Palmer amended his petition and added the allegation that Cherie Palmer’s testimony at the second trial should not be considered in determining sufficiency because the testimony had been procured through prosecutorial and judicial misconduct. Fed. Ct. File, Filing No. 22. The district court concluded that the evidence (including the improperly admitted evidence) in the first and second trials was sufficient to support Palmer’s first and second convictions. Id., Filing No. 55, Rept. & Rec. of Mag. Judge (D.Neb. May 25, 1990); Filing No. 57, Order Adopting Rept. & Rec. of Mag. Judge (D.Neb. Sept. 17, 1990). The district court did not address the prosecutorial misconduct allegations because it found the claim was outside the scope of the remand. Id., Filing No. 46 at 1, Mem. and Order Granting Protective Order (D.Neb. Sept. 11, 1989).

Palmer again appealed and the Eighth Circuit again remanded. Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir.1992) (“Palmer (Fed.) II”). It found the misconduct claim was an integral part of Palmer’s sufficiency argument, noting that evidence obtained through prosecutorial misconduct is an exception to the rule that all evidence must be considered to determine sufficiency. Id. at 773. The action was remanded for the district court to consider whether misconduct had occurred. Id. The Eighth Circuit expressly determined, in addition, that a later post-trial double jeopardy challenge would not be a second or successive petition. Id. at 764.

The federal district court held an evi-dentiary hearing on February 24, 1993. See Fed. Ct. File, Filing No. 87, Tr. of Feb. 24, 1993, Hearing (Hrg. Tr.). Attorney Stephen Von Riesen, who prosecuted Palmer at the second trial, testified that he had tried to determine Cherie Palmer’s marital status in order to introduce her testimony in the second Palmer trial. Hrg. Tr. at 19. He had successfully moved to continue the trial once, before the divorce was final. Id. at 22, 23. The Palmers’ divorce was granted in Texas on May 12, 1982, and Von Riesen had filed for another continuance on May 25, 1982, assuming that an appeal of the divorce decree could prevent Cherie from testifying. Id. at 36-37. Von Riesen also testified that he had known Cherie Palmer’s testimony would be significant, if not essential, in the absence of Deanna Klintworth’s testimony. Id. at 43. He also testified that the trial judge had informed, ex parte, before the trial, that Cherie Palmer would be allowed to testify. Id. at 49. He also testified, however, that he had been satisfied that a competent legal argument could be made that Cherie Palmer’s testimony was admissible, and that he had not offered her testimony knowing that it would be inadmissible. Id. at 60. The district court found that no prosecutorial or judicial misconduct had occurred and that Cherie Palmer’s testimony should be considered in determining the sufficiency of the evidence. See Fed. Ct. File, Filing Nos. 89 and 97. It further found the evidence sufficient to support the conviction. Id., Filing No. 89 at 12; Filing No. 97 at 6. That decision was ultimately affirmed. See Palmer v. Clarke, 12 F.3d 781, 782 (8th Cir.1993) (“Palmer (Fed.) III”). Interestingly, the record shows that after the Eighth Circuit remanded the case to district court, the mandate was issued and records were ordered transferred to Hall County, Nebraska, District Court. See Fed. Ct. File, Filing No. 108. The case was never dismissed; the file was merely closed.

D. Third Trial

As noted, Palmer was tried, convicted, and sentenced to death for the third time in 1984. Cherie Palmer again testified and provided the only direct evidence linking Palmer to the murder. She testified that she and her husband and their child went to Zimmerman’s coin shop on March 6, 1979, to sell jewelry. Trial III Tr., Vol. II at 477. Charles Palmer hit Zimmerman, knocking him to the floor, and asked him for money. Id. Palmer then shoved Zimmerman up the stairs, where the two remained for fifteen minutes. Id. at 482. Cherie Palmer went upstairs and observed Zimmerman lying on a bed with his hands and feet tied. Id. at 483. Charles Palmer rummaged through drawers looking for jewelry. Id. at 484-85. Zimmerman said his stomach hurt. Id. at 484. Cherie Palmer offered to get him some medicine and then gave him some Valium. Id. Charles Palmer then told Cherie Palmer to go downstairs. Id. at 486. She testified that shortly thereafter “there was a — a lot of thumping noises. Thump, Thump, Thump, Thump, and some kind of a — a guttural noise. I kept hearing a — a low, monotonous, almost a chant — like sound. A very deep and very throaty guttural type, over and over, again.” Id. Cherie Palmer further testified that Charles Palmer came back downstairs after about fifteen minutes and then Charles, Cherie, and the child left the house. Id. Cherie testified that she told Palmer, “Charlie, Mr. Zimmerman knows who we are.” Id. at 490. Cherie also testified that they had been to see Mr. Zimmerman on about five previous occasions and that she had entered into a plea bargain and had spent 18 months in jail. Id. at 513.

Dr. Pierce T. Sloss, a pathologist, testified that he conducted a postmortem examination on Eugene Zimmerman’s body. Id. at 575. Dr. Sloss first “observed tightly encircled about the neck of the decedent an electrical cord.” Id. at 576. He testified that his examination of Zimmerman’s body revealed that

the voice box and the windpipe immediately below where the cord, electrical cord had been encircled around the neck were broken and bleeding had taken place into these broken structures and about these broken structures. A large amount of blood had been entrapped in the blood vessels of the head above the level of the encircling cord.

Id. at 577. He also observed that “the face contained multiple bruises and several broad scratches and a fresh cut” and “there was a fresh bruise just below the left collar bone.” Id. He opined that “death was due to strangulation and that death occurred approximately at 4:30 on the afternoon of the 6th day of March, 1979.” Id. He further noted that there was no postmortem evidence that the victim’s hands had been bound and that there were no stomach contents consistent with medication to be given within a half hour of death. Id. at 578-9. Monica Zimmerman’s testimony identified Charles Palmer as the man who had attempted to sell coins and jewelry at their store on previous occasions. Id. at 453-54.

The defense argued that it was equally likely that Cherie Palmer had murdered Zimmerman. Trial III Tr., Vol. IV at 822-30. Defense counsel argued that Charles Palmer, 'because of his size and strength, would have had no reason to use an electrical cord to strangle Zimmerman; he could have done so with his bare hands. Id. at 827.

At the close of evidence, the court instructed the jury that Palmer had been charged as follows: “On or about the 6th day of March, 1979, in Hall County, Nebraska, the Defendant Charles Jess Palmer, then and there being, did in the perpetration of a robbery, kill Eugene Zimmerman....” Instruction No. 2, St. Ct. File, Vol. IV at 758. With respect to the elements of the crime, the court instructed the jury that:

1. On or about the 6th day of March, 1979, in Grand Island, Hall County, Nebraska, the defendant Charles Jess Palmer did kill one Eugene William Zimmerman in the following manner:

a. That the defendant strangled the said Eugene William Zimmerman; and

b. That the strangulation was the proximate cause of the death of the said Eugene William Zimmerman; and

2. That said killing was done while the said Charles Jess Palmer was in the perpetration of a robbery.

Instruction No. 6, St. Ct. File, Vol. IV at 762.

The jury was further instructed that an element of robbery was “that such taking was done with intent to rob or steal.” Id. (emphasis added). With respect to intent, the jury was instructed that “criminal intent is a material and necessary element of the crime of First Degree Murder as charged against the defendant. But the intent required is not an intent to kill Eugene William Zimmerman but is an intent to deprive him of money or personal property of value.” Instruction No. 7, St. Ct. File, Vol. IV at 764.

A three-judge panel conducted a sentencing hearing. Trial III Tr., Vol. V (May 25, 1984, and September 6, 1984). At the hearing, defense counsel presented evidence of convictions and sentences in other murder cases. See Trial III, Ex. 62 (State v. Schaeffer); Trial III, Exs. 63, 64, and 65 (State v. Roewert); Trial III, Exs. 66, 67, and 68 (State v. Floyd); Trial III, Exs. 71 and 72 (State v. Thornton); Trial III, Ex. 73 (State v. Lynch); Trial III, Ex. 74 (State v. Jones). Cherie Palmer’s conviction and sentence were also offered into evidence. Trial III, Ex. 76. The sentencing panel also admitted Palmer’s presen-tence investigation report and Palmer’s response thereto. Trial III, Ex. 55 and Ex. 77. In mitigation, defense counsel offered a statement of Palmer’s sister showing that Palmer had a turbulent childhood and had been subjected to abuse by his stepfather. Trial III, Ex. 75. With respect to the “murder to conceal identity” aggravator, Palmer’s attorney argued that the ag-gravator amounted to “impermissible doubling up,” id., but he did not argue that the aggravator was inapplicable. Trial III Tr., Vol. V at 933. In response, the prosecutor argued that family history should not remain a mitigating circumstance “into middle age.” Id. at 922. On September 6, 1984, the panel sentenced Palmer pursuant to Neb.Rev.Stat. § 29-2522. The panel found that the statutory aggravators of “murder to conceal identity” and “manifesting exceptional depravity,” Neb.Rev. Stat. § 29-2523(l)(b) and (d), applied to the case, but found no mitigating circumstances. St. Ct. File at 177-78, Order of Sentence (Sept. 6, 1984). The court stated that the evidence relating to Palmer’s childhood and the abusive conduct of Palmer’s stepfather toward the defendant, his sister, and his mother “does not give rise to a mitigatory circumstance.” Id. at 181. In support of aggravator 1(b), the panel stated:

The evidence is that the defendant and his wife, Cheri Hanson Palmer, had been at the home of the decedent, which was also his place of business, on previous occasions and were known to both the decedent and his wife. The robbery was in large part completed prior to the killing of Eugene D. Zimmerman by defendant.

Id. at 177. In support of the exceptional depravity aggravator the sentencing panel stated,

Death in this case was caused by strangling. To accomplish the strangling the defendant employed an electrical cord which was wrapped around the neck of the victim and so tightened as to fracture the windpipe of the victim and to cause his death by suffocation. The evidence does not indicate that the act of killing itself was prolonged or lengthy so as to rise to the level of being ‘especially’ heinous, atrocious or cruel when compared with other cases of murder in the first degree.

The evidence further indicates, that, in the course of the robbery and the disabling of the victim in connection with the robbery the victim had been removed from the location at which a weapon had been available to him; had been bound with his hands behind his body; had been struck about the head sufficiently to knock him to the floor; and had been placed in a condition of inability to resist or otherwise to threaten the defendant.

Id. at 178-79. The panel again sentenced Palmer to death. Id. at 182-83.

The panel also stated that the murder was comparable to one committed by Wesley Peery. Id. at 179. The panel also stated, without elaboration, that it had performed a proportionality review pursuant to Neb.Rev.Stat. § 29-2522(3), comparing the murder to all other murders committed since 1973, and found Palmer’s sentence proportionate. Id. at 182. The cases compared are not named.

1. Direct Appeal

Palmer’s third conviction was affirmed on direct appeal. Palmer III, 399 N.W.2d at 706. In Palmer III, the Nebraska Supreme Court rejected Palmer’s ex post facto and bill of attainder arguments, as well as a sufficiency of evidence challenge. Id. at 714. The court found the evidence “more than sufficient for the jury to find the defendant guilty of felony-murder,” but did not discuss sufficiency of the evidence to support the imposition of the death penalty. Id. The court also rejected Palmer’s posttrial double jeopardy challenge, finding that Palmer’s second conviction had been reversed for procedural error and not for insufficiency of evidence and further finding the evidence adduced in his second trial was sufficient to convict him of felony murder. Id. at 719. Again, the court did not address sufficiency of the evidence to support imposition of the death penalty in connection with the double jeopardy claim. The court similarly rejected Palmer’s contentions that refusal to consider a lesser-included offense and sentencing by a three-judge panel instead of a jury were constitutionally infirm. Id. at 724-25.

Palmer also raised the issue of the constitutional validity of the “exceptional depravity” aggravator in his direct appeal. Id. at 713. The court first noted that “exceptional depravity” had been defined in earlier cases to mean “totally and senselessly bereft of regard for human life.” Id. at 729-30. The court then compared Palmer’s crime to several eases in which such “exceptional depravity” had been found. Id. It set forth several “objective factors” to distinguish a death penalty case from a ease where the death penalty is not imposed and adopted a five-factor test to determine whether “exceptional depravity” existed.

[F]or the purpose of [applying] § 29-2523(l)(d) as an aggravating circumstance in determining whether the death penalty may be imposed, we hold that “exceptional depravity” in a murder exists when it is shown, beyond a reasonable doubt, that the following circumstances, either separately or collectively, exist in reference to a first degree murder: (1) apparent relishing of the murder by the killer; (2) infliction of gratuitous violence on the victim; (3) needless mutilation of the victim; (4) senselessness of the crime; or (5) helplessness of the victim.

Id. at 731-32 (adopting the factors set forth in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 10 (1983)). The Nebraska Supreme Court applied those factors to Palmer’s case and found Zimmerman’s murder manifested exceptional depravity under the first prong of section 29-2523(l)(d). Id. at 732. The court further found that Zimmerman’s murder was “especially heinous, atrocious, or cruel,” and thus satisfied the second prong of section 29 — 2523(l)(d), although the sentencing panel had expressly found that the murder was not heinous. Id.; St. Ct. File at 178.

The court also conducted a proportionality review as required by Neb.Rev.Stat. § 29-2521.03. Over a vigorous dissent by then-Chief Justice Krivosha, Palmer III, 399 N.W.2d at 738-82, the court compared Palmer’s crime to “the records in all cases in which the death penalty was imposed for offenses committed on or after April 20, 1973,” instead of comparing the crime to similar first-degree murders. Id. at 737-38 (emphasis added). The court found the sentence was proportional, and Palmer’s conviction and sentence of death were both affirmed. Id.

2. State Court Post-Conviction Proceedings

Palmer then filed an action for post-conviction relief in Hall County, Nebraska, District Court. An evidentiary hearing was held on June 19, 1995. St. Ct. File, Transcript of Post-Conviction Hearing at 10 (“PosWConv.Hrg.Tr.”). At the hearing, Palmer elicited the testimony of John A. Wolf, the attorney who had been appointed lead counsel to represent Palmer in his first trial. Id. A young lawyer in his office, Jerry Milner, was appointed co-counsel. Id. at 11. Wolf testified that at the time he was appointed, he had never defended a murder trial. Id. at 8. Wolf had never participated in a capital sentencing procedure before the sentencing hearing in Palmer’s first trial. Id. at 18.

Wolf testified that he had read and researched the statute regarding aggravating and mitigating factors, but had not consulted with any other counsel. Id. at 18-19. With respect to mitigating factors, he stated, “I know I went over them with Charlie [Palmer] and asked him if any of those applied.” Id. at 17. He further testified that he did not think he presented any evidence regarding mitigating circumstances, because he “wasn’t aware of any mitigating” factors. Id. at 18. He did not recall whether he had conceded the existence of the aggravator that the murder had been committed to conceal another crime under section 29 — 2523(l)(b), but stated that if he had it was because “it was pretty obvious.” Id. at 19-20.

He did not recall whether he challenged the sufficiency of evidence to support the death penalty on Palmer’s direct appeal after the first trial, id. at 20, but the record shows he did not. See Brief of Appellant, Palmer I. Moreover, he did not object to Cherie Palmer’s statements in the presentence investigation report on the ground of marital privilege because he thought it would not have “done much good.” Post-Conv. Hrg. Tr. at 22. He further did not recall whether he had ever considered filing a plea in bar or other motion raising the double jeopardy issue before Palmer’s second trial. Id. at 23.

With respect to Palmer’s second trial, Wolf testified that he was assisted by attorney David A. Bush. Id. at 23. He testified that he knew that the state intended to call Cherie Palmer and that he knew what she would testify about from reading the presentence investigation in Palmer’s first trial. Id. at 24-25. He had not interviewed or deposed Cherie Palmer. Id. With respect to the sentencing phase in Palmer’s second trial, Wolf again testified that he did not recall putting on any evidence in mitigation “because I don’t think any applied.” Id. at 32.

Attorney Bush also testified at the post-conviction hearing. Id. at 45. He assisted Wolf in Palmer’s second and third trials. Id. He testified that he did “an extensive amount of investigation ... in the sense of legal briefing and the like” regarding the “heinous, atrocious and cruel and manifests exceptional depravity” aggravator, but did not do any investigation regarding the “murder committed to conceal identity” aggravator because he was “not sure what investigation would have been warranted.” Id. at 51. He further testified that he believed he had contacted Palmer’s sister to obtain evidence about Palmer’s turbulent childhood before the sentencing hearing in either the second or third trial. Id. at 53. The record shows that a statement by Palmer’s sister was admitted in the third sentencing hearing. See Trial III, Ex. 75. He also testified that before the sentencing hearing in the third trial, he had extensively investigated the proportionality review portion of the sentencing procedure by obtaining the records from other first degree murder cases. Id.

Ronald York, a probation officer, also testified at the post-conviction hearing. Id. at 59. He testified that he did the original and subsequent presentence investigation reports on Palmer. Id. at 61. He stated that the reports included a statement from Cherie Palmer. Id. at 62. He further testified that he did no investigation on any mitigating circumstances and that Palmer’s attorneys did not ask him to conduct any sort of investigation or to obtain any school or health records when preparing Palmer’s presentence investigation reports. Id. at 66-68. Further, he stated that he did not contact or consult any of Palmer’s friends, neighbors, or relatives, other than Cherie Palmer. Id. at 68. He did not interview Palmer while preparing the reports; he talked only to the attorneys who said that Palmer had nothing to say. “He was advised not to talk to me.” Id. at 66. The Hall County District Court denied the petition. St. Ct. File, Judge’s Notes & Journal Entries at 126-34 (Nov. 21,1995).

Palmer appealed the denial of post-conviction relief to the Nebraska Supreme Court. The Nebraska Supreme Court found that Palmer was not entitled to relief. State v. Palmer, 257 Neb. 702, 600 N.W.2d 756 (1999) (“Palmer IV” or “state post-conviction action”). The court declined to reconsider issues that had been raised and addressed in the direct appeal. Id. at 767-68. It therefore did not discuss Palmer’s claims with respect to: (1) the comparative review analysis and proportionality; (2) the arbitrariness and capriciousness of Palmer’s sentence; (3) the constitutionality of the Nebraska death penalty statutes as applied; (4) a violation of the ex post facto provisions of the United States and Nebraska Constitutions; (5) failure to give a lesser-included offense instruction on manslaughter and second degree murder; and (6) the unconstitutional and/or illegal arrest of Palmer in Texas. Id. The court also found certain claims were proeedurally barred. Id. at 768.

The court addressed the merits of ten claims. With respect to Palmer’s claim that his conviction for felony murder was unconstitutional because there had been no finding of the requisite intent, the court found, without discussion, “[I]t is clearly established that a person may be convicted of first degree murder under a felony murder theory without violating his Eighth or Fourteenth Amendment rights.” Id. at 769. The court also rejected Palmer’s claim that amendment of the spousal privilege statute amounted to an unconstitutional bill of attainder. Id. at 770.

It also summarily rejected Palmer’s claim that the “exceptional depravity” ag-gravator was unconstitutionally vague. Relying on Joubert v. Hopkins, 75 F.3d 1232 (8th Cir.1996), the court stated, “[t]he Court of Appeals has since stated that the exceptional depravity definition under § 29-2523(l)(d), as we narrowed it in Palmer III, is constitutional.” Id. Further, the court found that Palmer had been afforded constitutional notice of the reformulated aggravator in that “[a]t the time of his sentencing hearing, Palmer had notice of the language of § 29-2523(l)(d) and the various fact patterns” that the court had used as specific examples to demonstrate the meaning of “exceptional depravity” in Palmer III. Id. at 771, 399 N.W.2d 706. The court also rejected Palmer’s claims of ineffective assistance of counsel and, in connection with those claims, found that the evidence in the first trial was sufficient to sentence Palmer to the death penalty. Id. at 777, 399 N.W.2d 706.

Palmer filed the present action on January 28, 2000, and now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Palmer contends that his 1984 conviction and sentence are unconstitutional and void under Article I, §§ 9 and 10, and under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. All claims have been properly exhausted and no claims are proeedurally barred. See Filing No. 58, Mem. and Order (D.Neb. Sept. 14, 2001).

II. Discussion

A. Applicability of AEDPA— Standard of Review

Review by federal courts of state court decisions for constitutional errors under 28 U.S.C. § 2254 was altered by the Antiter-rorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA), which became effective on April 24, 1996. A threshold question is the applicability of the AEDPA to Palmer’s action.

1. Second or Successive Petition

The AEDPA has further restricted the power of federal courts to grant writs of habeas corpus to state prisoners. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). It contains strict restrictions on the filing of second or successive petitions. 28 U.S.C. § 2244. Under the AEDPA, any habeas corpus claim presented in a second or successive habeas corpus application that had been presented in a prior application is subject to dismissal. Id. Further, any claim that was not presented in a prior application is also subject to dismissal unless the applicant can show either: (1) “that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or (2)that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence” and “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfin-der would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(1) and (2)(A) and (B)(i) and (ii).

This court must thus determine whether Palmer’s present petition constitutes a second or successive petition. The court finds that it is not. Not every habe-as corpus petition that is filed after a prior one is properly considered a “second or successive” filing in the technical sense required by the AEDPA. Muniz v. United States, 236 F.3d 122, 125 (2d Cir.2001). Although the AEDPA does not define what constitutes a “second or successive” application, courts generally acknowledge that the interpretation of “second or successive” involves the application of pre-AEDPA abuse-of-the-writ principles. Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (relying on pre-AEDPA law to determine that section 2244(b) did not bar petitioner’s request to reopen habeas claim raised in prior petition but dismissed by district court as premature); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir.2001).

To hold that every refiled petition is second or successive under AEDPA “would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review.” Martinez-Villareal, 523 U.S. at 645, 118 S.Ct. 1618 (stating “[tjhis may have been the second time that respondent had asked the federal courts to provide relief on his [previously unripe] claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to § 2244(b)”). The Seventh Circuit has acknowledged the possibility that

a claim in no sense abusive, because it could not have been raised earlier, yet not within the dispensation that section 2244(b)(2) grants for the filing of some second or successive petitions, would have sufficient merit that the barring of it would raise an issue under the clause of the Constitution that forbids suspending federal habeas corpus other than in times of rebellion or invasion.

In re Page, 179 F.3d 1024, 1025 (7th Cir.1999).

There is a substantive difference between a dismissal for failure to exhaust and a dismissal as premature or unripe. Palmer’s first habeas corpus petition was originally dismissed as premature and later as frivolous, but was never dismissed for failure to exhaust. This case is thus on the same procedural footing as the petitioner’s action in Stewart v. Martinez-Villareal, 523 U.S. at 645, 118 S.Ct. 1618 (holding that a claim dismissed as premature and later refiled was not subject to the AEDPA); see also Slack v. McDaniel, 529 U.S. 473, 486-487, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (noting that a petition “unadjudicated on its merits ... is not a second or successive petition”). In this case, the Eighth Circuit expressly noted that Palmer’s posttrial double jeopardy challenge would not amount to a second or successive petition. Palmer (Fed.) II, 961 F.2d at 764.

This action is Palmer’s first habeas corpus petition on all issues except the pretrial double jeopardy issue. Accordingly, the court finds that the action is not a second or successive petition and that 28 U.S.C. § 2244 does not apply to this case.

2. Substantive Standard of Review

The inquiry does not end at the finding that Palmer’s present petition is not second or successive. The court must still determine whether the AEDPA’s revised standards of review will apply to the action. “Whether a petition is a ‘second or successive’ application under the AEDPA is an entirely different question” than whether AEDPA applies to a petition filed after the Act’s effective date. Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir.2001).

Since the AEDPA does not apply retroactively to cases pending when the Act was signed into law, the inquiry is whether Palmer’s action can be said to have been “pending” on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Whether the AEDPA applies to a state prisoner turns on what was before a federal court on the date the AEDPA became effective on April 24, 1996. Woodford v. Garceau, 538 U.S. 202, -, 123 S.Ct. 1398, 1399, 155 L.Ed.2d 363 (2003). If, on that date, the state prisoner had before a federal court an application for habeas relief seeking an adjudication on the merits of the petitioner’s claims, then amended section 2254(d) does not apply. Id. Otherwise, an application filed after AEDPA’s effective date should be reviewed under AEDPA, even if other filings by that same applicant — such as a request for the appointment of counsel or a motion for a stay of execution' — were presented to a federal court prior to AEDPA’s effective date. Id. See also Ellzey v. United States, 324 F.3d 521, 524 (7th Cir.2003) (finding an amended petition a continuation of earlier petition for statute of limitations purposes).

On the date the AEDPA was passed, Palmer had an action pending that raised issues on the merits. The petition in Palmer’s initial habeas petition sought resolution of the merits of the double jeopardy/sufficiency of evidence issue. The court resolved the pretrial component of that claim, but reserved judgment on the posttrial component, effectively finding the double jeopardy issue premature as to the completed third trial. The claims in the present petition, especially those that involve sufficiency of evidence at the first and second trials as part of Palmer’s ineffective assistance claim and the double jeopardy issues, are inextricably tied to claims raised in Palmer’s first petition.

Only Palmer’s pretrial double jeopardy challenge has been addressed on its merits. Palmer’s other claims, which involve challenges to his third conviction, as well as claims relating to his first and second trials, could not have been raised earlier. Most claims were premature, and Palmer was unable to raise his ineffective assistance of counsel claims because he was represented by the same counsel. In addition, because both the federal and state courts held Palmer’s actions in abeyance pending resolution of proceedings in the other court, the present petition is a continuation of the first and should relate back to the first. The lengthy delays in resolving the merits of Palmer’s claims can largely be attributed to actions (or inac-tions) by the courts. The court is thus inclined to view this action as a natural extension of the proceedings in Palmer’s first habeas corpus action, Palmer v. Drum, 84-L-144.

Accordingly, since Palmer’s action was pending, or is deemed to have been pending, when the AEDPA was passed, pre-AEDPA standards of review should apply. This finding is of no real consequence, however, because the court would reach the same conclusion under either the pre- or post-AEDPA standards of review. Although the AEDPA altered the substantive standards by which federal courts review state court determinations of law under 28 U.S.C. § 2254, those subtle distinctions would not affect the outcome of this action. This court’s findings generally relate to legal, not factual, issues.

Under pre-AEDPA standards, the reviewing court would give the state court’s factual findings a “presumption of correctness” and would review de novo state court interpretations of federal law, as well as mixed questions of fact and law. See Jones v. Delo, 258 F.3d 893, 900 (8th Cir.2001) (regarding factual findings); Henderson v. Norris, 258 F.3d 706, 707 (8th Cir.2001) (regarding issues of law); Stringer v. Hedgepeth, 280 F.3d 826, 829 (8th Cir.2002) (same). A court could overturn a state court’s factual findings if they were not supported by evidence. See Jones, 258 F.3d at 900-901.

Under the AEDPA, a federal court may grant a writ of habeas corpus if the relevant state court decision is “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1); Lockyer v. Andrade, 538 U.S. 63,-, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). A state court decision is “contrary to” the Supreme Court’s established precedent: (1) if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law (i.e., applies a rule that contradicts the governing law in Supreme Court cases); or (2) if the state court confronts facts that are materially indistinguishable from relevant Supreme Court precedent and arrives at a result opposite to that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an “unreasonable application” of clearly established federal law if it correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular case. Id. If the state court’s application of clearly established federal law was not unreasonable, a federal court may not grant habeas relief even if in the federal court’s judgment its application was incorrect. Williams, 529 U.S. at 411, 120 S.Ct. 1495; see also Penry v. Johnson, 532 U.S. 782, 793, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).

“Clearly established federal law” under section 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision and includes whatever would qualify as an “old rule” under the Supreme Court’s Teague jurisprudence. Id. at 411, 120 S.Ct. 1495. The “clearly established” phrase refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision. Id.

Also, under the AEDPA, factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it is objectively unreasonable in light of the evidence presented in the state court proceeding. Miller-El v. Cockrell, 537 U.S. at-, 123 S.Ct. at 1040. Nevertheless, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review.” Id. Deference does not by definition preclude relief. Id. A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence. Id.

The distinctions, then, are that the court must find factual error to have occurred by clear and convincing evidence and must find legal error to have occurred because the state court result was either contrary to Supreme Court precedent or because the state court unreasonably applied Supreme Court precedent. Even under the AEDPA’s marginally more rigorous standards, this court’s findings would be the same.

B. Merits of Petitioner’s Claims

1. Ex Post Facto (Claim I)

In his first claim, Palmer asserts that the amendment to the spousal privilege statute in 1984 operated as an ex post facto law in violation of the Constitution. In the state court post-conviction action, the Nebraska Supreme Court refused to consider this claim, stating that the court in Palmer III had raised and addressed it. Palmer IV, 600 N.W.2d at 767-68. This finding effectively adopted the Nebraska Supreme Court’s holding in Palmer III that amending the spousal privilege statute did not violate the ex post facto prohibition in the Constitution because the legislature had not created any criminal act, altered the standard of proof necessary for conviction, or altered the punishment prescribed for the crime. Palmer III, 399 N.W.2d at 716. In Palmer III, the Nebraska Supreme Court analogized the legislative act to a change in the rules of evidence and found that the rights abrogated were not substantial enough to render retroactive application of the statute unconstitutional. Id.

Article I, section 10 of the Constitution prohibits the states from passing any ex post facto law. Carmell v. Texas, 529 U.S. 513, 520, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). The Ex Post Facto Clause incorporates a term of art into a meaning already established when the Constitution was framed. Id. at 521-22, 120 S.Ct. 1620. The clause is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts. Id. at 522, 120 S.Ct. 1620. The proscription against ex post facto laws was derived from English common law and applies to four categories of criminal laws: (1) a law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) a law that aggravates a crime, or makes it greater than it was, when committed; (3) a law that changes the punishment, and inflicts a greater punishment, than the law that existed when the crime was committed; and (4) a law that alters the legal rules of evidence, and requires less or different testimony to convict the offender, than the law required at the time of the commission of the offence. Id.

Palmer’s contentions invoke the fourth prong of this definition. See id. at 531, 120 S.Ct. 1620 (reaffirming the continued viability of the fourth category and noting that “[a] law reducing the quantum of evidence required to convict an offender or retrospectively eliminating an element of the offense” violates the Ex Post Facto Clause). Palmer argues that the Nebraska Legislature’s amendment of the spousal privilege statute is analogous to the statute challenged in Carmell that increased the age limit for application of the “outcry or corroboration” rule in a sexual assault case from age fourteen to age eighteen. See Carmell, 529 U.S. at 518-19, 120 S.Ct. 1620. The state argues on the other hand that the amendment to the spousal privilege statute is more closely analogous to the situation presented in Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), and Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898) (involving competency of witnesses and evidence).

Not every rule that has an effect on whether a defendant can be convicted implicates the Ex Post Facto Clause. Carmell, 529 U.S. at 533 n. 23, 120 S.Ct. 1620. Ordinary rules of evidence, for example, do not violate the clause. Id. Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the state or the defendant in any given case. Id. at 546, 120 S.Ct. 1620 (noting changes lowering quantum of proof, and thus implicating Ex Post Facto Clause, will always inure to state’s benefit, but witness competency laws “do not necessarily run in the State’s favor”). More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption. Id. Thus, it is only evidentiary rules which affect the quantum of evidence, i.e., make it easier for the government to overcome the presumption of innocence, that will violate the Ex Post Facto Clause. Id. at 532, 120 S.Ct. 1620. See also Stogner v. California, — U.S.-, -, 123 S.Ct. 2446, 2451, 156 L.Ed.2d 544 (2003) (holding retroactive extension of statutes of limitation for serious sexual offenses against minors was ex post facto law and stating in dicta that the new law would alter the quantum of proof by effectively eliminating an existing conclusive presumption forbidding prosecution). In addition, evidentiary rules that simply regulate the mode by which the parties could place facts before the jury, but do not “govern the sufficiency of those facts for meeting the burden of proof,” will not violate the Ex Post Facto Clause. Id. at 545, 546-47, 120 S.Ct. 1620.

The court finds the change to the spousal privilege statute is closer to a witness competency rule. The change did not affect the amount of evidence necessary to convict the defendant; it merely created a class of persons (spouses) competent to testify with respect to certain issues (crimes of violence). See Janecka v. Cockrell, 301 F.3d 316, 324 (5th Cir.2002) (regarding change in burden of production to refute exculpatory evidence in a confession); and Neill v. Gibson, 278 F.3d 1044, 1052 (10th Cir.2001) (regarding admissibility of victim-impact statements). The court finds the spousal privilege statute is more in the nature of an ordinary rule of evidence that does not violate the Ex Post Facto Clause. Carmell, 529 U.S. at 533 n. 23, 120 S.Ct. 1620. Such rules are “ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case.” Id. Amendment of the spousal privilege statute to allow spousal testimony in certain cases would not always inure to the benefit of the state. The statute would also allow evidence that favored a defendant.

Accordingly, the court finds that the amendment to the spousal privilege did not operate as an ex post facto law against Palmer.

2. Bill of Attainder (Claim II)

On a closely related issue, Palmer also argues that the passage of the spousal privilege amendment operated as a bill of attainder against him in violation of Article I, Section 10 of the Constitution. The Constitution includes two clauses prohibiting enactment of “bills of attainder.” See U.S. Const. art. I, §§ 9, 10. Section 9 applies to Congress; section 10 to the states. Id. Briefly stated, a constitutionally proscribed bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); see also United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946) (“[l]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.”). Put another way, the Bill of Attainder Clause bars the imposition of punishment resulting from “trial by legislature.” United States v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965).

A statute can be a bill of attainder only if (1) it “determines guilt and inflicts punishment,” (2) “upon an identifiable individual,” (3) “without provision of the protections of a judicial trial.” Nixon, 433 U.S. at 468, 97 S.Ct. 2777; United States v. Van Horn, 798 F.2d 1166, 1168 (8th Cir.1986). Thus, to constitute a bill of attainder, the statute must (1) specify affected persons, (2) impose punishment, and (3) fail to provide for a judicial trial. See Selective Serv. Sys. v. Minnesota Pub. Int. Research Group, 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). The party challenging the statute has the burden of “establishing] that the legislature’s action constituted punishment and not merely the legitimate regulation of conduct.” Nixon, 433 U.S. at 476 n. 40, 97 S.Ct. 2777.

The state post-conviction court found that Palmer was not subject to a bill of attainder because the amended statute did not specify persons to be punished.

The privilege, as amended, neither names specific persons or groups to be punished nor isolates past activity by which persons can later be designated as appropriate candidates for punishment. The amended spousal privilege is not concerned with distinguishing between persons, but between crimes. The amendment allowed spousal testimony to be admitted in future trials for violent crimes. Therefore, the amendment of § 27-505 was not a bill of attainder against Palmer.

Palmer IV, 600 N.W.2d at 769. Id.

Whether the challenged statutory amendment “specifies” Palmer, or singles him out, is a close question. The court is inclined to find that it does. Various guideposts aid in determining whether legislation singles out a person or class within the meaning of the Bill of Attainder Clause. See, e.g., Selective Serv. v. Sys., 468 U.S. at 847, 104 S.Ct. 3348. First, the court considers whether the statute or provision explicitly names the individual or class, or instead, describes the affected population in terms of general applicability. Id.; Nixon, 433 U.S. at 469-71, 97 S.Ct. 2777. Second, intricately connected with the first, is whether the identity of the individual or class was “easily ascertainable” when the legislation was passed. Brown, 381 U.S. at 448-49, 85 S.Ct. 1707. Third, the court examines whether the legislation defines the individual or class by “past conduct [that] operates only as a designation of particular persons.” Selective Serv. Sys., 468 U.S. at 847, 104 S.Ct. 3348. Finally, the court reviews whether the past conduct defining the affected individual or group consists of “irrevocable acts committed by them.” Id.

Under those standards, this court finds that although the statute does not single out Palmer by name, his identity was easily ascertainable at the time the statute was amended. Palmer has presented compelling evidence that the bill was specifically aimed at him. See Legislative History, LB 696, Floor Debate (Jan. 17,1984). The bill’s introduction was occasioned by the reversals in Palmer I and Palmer II. The prosecutor in the second trial testified to the legislature in support of the amendment. Id. at 6. Cf. WMX Tech., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1203 (8th Cir.1997) (noting no evidence of any legislative intent to punish in that case).

However, even if the specificity element is satisfied, the Bill of Attainder Clause is not automatically implicated. Nixon, 433 U.S. at 472, 97 S.Ct. 2777. The court must next inquire whether the statutory amendment “inflict(ed) punishment” within the constitutional proscription against bills of attainder. Id. at 472-73, 97 S.Ct. 2777. Three inquiries determine whether a statute inflicts punishment on the specified individual or group: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a congressional intent to punish.’ ” Selective Serv. Sys., 468 U.S. at 852 (quoting Nixon, 433 U.S. at 473, 475-76, 97 S.Ct. 2777). Thus, to rise to the level of “punishment” under the Bill of Attainder Clause, harm must fall within the traditional meaning of legislative punishment, must fail to further a nonpunitive purpose, or must be based on a legislative intent to punish. Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. v. Dempsey, 167 F.3d 458, 465 (8th Cir.1999).

Traditionally, bills of attainder sentenced the named individual to death, imprisonment, banishment, the punitive confiscation of property, or erected a bar to designated individuals or groups participating in specified employments or vocations. Nixon, 433 U.S. at 473-74, 97 S.Ct. 2777. Courts apply “a functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.” Id. at 475-76, 97 S.Ct. 2777. Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decision-makers. Id. Applying the functional approach to this case, this court rejects the argument that the amendment of the spousal privilege statute rests upon a legislative determination of Palmer’s blameworthiness and its desire to punish him. See id. Notably, the amendment to the statute furthers a nonpunitive purpose.

Legislation designed to guarantee the availability of evidence for use at criminal trials is a fair exercise of Congress’ responsibility to the ‘due process of law in the fair administration of criminal justice,’ and to the functioning of our adversary legal system which depends upon the availability of relevant evidence in carrying out its commitments both to fair play and to