Parts IV, V, and VI provide the bulk of this article's analysis. Part IV outlines problems specific to foreign national witnesses in the WITSEC program, with particular reference to immigration status. It also discusses congressional recognition that such problems hamper United States policy in terms of creating support among potential foreign witnesses. Part V discusses how the discretionary function exception of the Federal Tort Claims Act (FfCA) bars tort suits against the United States by witnesses and other parties for the unfulfilled promises of federal agents. It reviews case law interpreting the discretionary function exception in the WITSEC context. Part V also examines language in the WITSEC statute that bars breach of contract actions in the federal courts by witness plaintiffs. Part VI concludes this Article with a recommendation that lawmakers consider changes to the WITSEC program to mitigate or eliminate the problem of unenforceable promises being made to witnesses. It proposes recognition of enforceable agreements between the government and witnesses in matters important to witness safety or well-being, and discusses how such agreements would harmoniously coincide with pre-existing law enforcement policies. Such changes would not only be equitable to witnesses who cooperate with U.S. law enforcement agencies, but would also prove valuable in terms of creating greater support and confidence in U.S. law enforcement agencies abroad.

Conclusion: Given the likelihood of continued extraterritorial interventions in the foreseeable future, States Parties to the Convention should expect to be held accountable before the Court for their actions abroad. Based on the limited jurisprudence and mixed interpretations in these cases, however, it is unclear what form that accountability will take. Issa seems to extend the potential areas covered by the Convention in dramatic ways. One wonders if the Court will narrow its approach to extraterritorial jurisdiction in future cases. It may be argued that by setting a high evidentiary threshold in Issa, the Court has made it difficult to successfully establish when a nation exercises jurisdiction through its control while acting abroad, particularly in covert operations. Still, the Court has affirmed continuously the principle that States Parties to the Convention are responsible for human rights violations committed abroad, and jurisdiction flowing from effective control is both consistent in theory and makes common sense. What is clear is that the European Convention on Human Rights’ long arm will likely remain active for the foreseeable future.

Ongoing and completed projects are detailed, including

211 information and referral system cost/benefit analysis, carbon sequestration, communities in transition in rural Nebraska, Lincoln/Lancaster Community Services Implementation Project (C-SIP), National Survey of American Families Project, Nebraska Minority and Justice Task Force, Partnering to Reach Integrated Competitive Employment (PRICE) for Nebraskans with Disabilities, policy seminar series, Real Choices for Nebraskans, Special Education Flexible Funding Project, State meat inspection program, Supplying Our Local Institutional Demand (SOLID) Food Project, and budget.

Access to Justice

Public Perception

1. Court employees, including administrators, judges, lawyers, and court personnel, should be made aware of the perceptions outlined in this study and the effects these perceptions have on the courts.

2. Significant efforts should be taken by the Nebraska State Bar Association, Nebraska Supreme Court, and Nebraska policymakers to promote legal services for Nebraska’s indigent. Specifically, the Nebraska State Bar Association should continue to actively encourage private lawyers to provide pro bono or reduced-fee services to those in need.

3. Sources should be found to fund a public service announcement (PSA) campaign designed at increasing awareness of and confidence in the courts, especially among minority groups.

Interpreter Services

1. The Nebraska Administrative Office of the Courts should collaborate with schools of higher education to design a curriculum appropriate for pre- and post-certification education for interpreters.

2. The Administrative Office of the Courts should create a “screening phase” for certification applicants, so as to increase the likelihood of passage before extensive funds are spent on testing.

3. The Administrative Office of the Courts should seek additional funds for training through federal and nonprofit granting institutions.

4. The Administrative Office of the Courts should actively encourage those desiring to take certification tests in languages not currently offered in Nebraska to take those tests in other National Consortium for Racial and Ethnic Fairness in the Courts states that offer those particular tests so as to reduce costs in Nebraska.

5. The Administrative Office of the Courts should require records to be kept and summarized as to the number of requests made for interpreter services in each Nebraska county along with a breakdown of the number of times each language is requested.

6. Judges should be required to ask noncertified interpreters if they have read and agree to adhere to the Code of Professional Responsibility for Interpreters.

7. A policy should be adopted requiring that all judicial forms, documents, and videos used in court proceedings be drafted in English and translated into such additional languages as the Administrative Office of the Courts approves. All such translations should be made by qualified translators and approved by the Administrative Office of the Courts.

8. Interpreters should be encouraged to acquire an understanding of cultural variations that accompany language differences, so as to better assist non-English-speaking clients.

9. The Nebraska Supreme Court and Administrative Office of the Courts should consider hiring interpreters on a full time basis, where appropriate, in order to attract more and better interpreters.

10. The Administrative Office of the Courts should actively seek to partner with other governmental agencies to hire full time or to "share" language interpreters, where a need justifies such a partnership.

11. The Administrative Office of the Courts should continue to actively recruit bilingual staff and compensate them accordingly.

12. The Nebraska Supreme Court should require that county and district courts provide court-paid interpreter services to indigents outside of court in order to communicate with their courtappointed lawyers.

13. The Administrative Office of the Courts should create a review system to rate frequently used uncertified interpreters and periodically make unannounced reviews of uncertified interpreters in the courtroom setting.

14. The Administrative Office of the Courts should provide diversity and cultural training for all judges and court employees, both at the time of their hiring and at interval periods.

15. A simple explanation of both civil and criminal court processes should be prepared in Spanish and other appropriate languages. This could be in written or video form.

16. Local Bar associations and courts should engage in outreach programs with leaders of local immigrant and culturally diverse communities to help educate their members as to the role and processes of the Nebraska court system.

17. The Administrative Office of the Courts should develop a Nebraska court-approved voir dire, such as the one developed by the NCSC, for use by judges to determine the qualifications of an uncertified interpreter.

Nebraska Juries

1. Juries should be more reflective of the diversity of the community, and source lists for juries should be expanded to ensure such diversity.

2. Reimbursements should be made to low-income jurors for child care or elder care expenses incurred because of jury service.

3. The Nebraska Secretary of State should require that all persons registering to vote identify their race and ethnicity so that proper records can be kept of jury pool composition.

4. Jury commissioners should be required to collect and preserve racial and ethnic information on all persons selected for jury duty. This data should be reported yearly to the Administrative Office of the Courts.

5. Jury commissioners should be required to collect and preserve racial and ethnic information on all persons granted excuses and deferrals, reporting for jury duty, selected for voir dire panels, and seated on juries at both the county and district level. This data should be reported yearly to the Administrative Office of the Courts.

6. County and district court clerks should be required to collect and preserve racial and ethnic information on all impaneled jurors. This data should be reported yearly to the Administrative Office of the Courts.

7. Nebraska statute should require that jury pool lists be refreshed annually on a set date determined by the Administrative Office of the Courts.

Criminal and Juvenile Justice Criminal

1. The Nebraska Supreme Court should adopt policies that maximize the use of the necessary demographic data in court and probation records systems so that the delivery of services provided by the courts and probation can be analyzed to determine whether there are any effects on the delivery of those services caused by race or ethnicity.

2. To the maximum extent possible, automated systems operating in law enforcement, prosecution, courts, probation, and corrections should be designed so that data can be shared with other systems. In places where that integration of automated systems is not yet possible, the prosecutor should be required to prepare a “criminal cover sheet” for all county and district court criminal cases. These cover sheets should be standardized to include such information as the age, race, and ethnicity of the defendant, and the original charge or charges.

3. The Nebraska Supreme Court should periodically direct an analysis of the services provided by the courts of this state and by probation (such as setting of bond, sentencing, probation revocations, etc.) to see if there are any effects on the delivery of those services caused by race or ethnicity.

4. An appropriate commission or task force should be created to investigate the disproportionately high minority arrest figures among Nebraska’s law enforcement agencies. In addition, Nebraska law enforcement agencies (police, sheriff, state patrol) under the leadership of the Nebraska Crime Commission or some other suitable state agency should make a concerted and sustained effort to determine whether race or ethnicity plays an improper role in arrests, and, if so, take specific and concrete action to address the matter.

5. The Administrative Office of the Courts should coordinate the collection of data, educate court participants, and continue to research areas of potential bias in the court, in order to create continuous oversight of the Nebraska court system.

6. Nebraska should adopt and enforce mandatory standards for the operation of county indigent defense systems that comply with the American Bar Association’s “Ten Principles of a Public Defense Delivery System.”

7. Nebraska should investigate the advisability of fully implementing a system based not on monetary bond but on conditions of pretrial release that would reasonably assure the appearance of the defendant and safety of the community.

8. The Nebraska Legislature should establish guidelines to ensure equal access to adult diversion programs and to assure the confidentiality of information concerning participants in diversion programs.

Juvenile

1. Nebraska should continue efforts to identify and eliminate the barriers that lead to disproportionately high minority youth arrests and incarceration relative to their percentage in the population and compared to their white counterparts.

2. The Nebraska Legislature should establish guidelines to ensure equal access to juvenile diversion programs and to assure the confidentiality of information concerning participants in diversion programs.

3. Nebraska should continue efforts to identify and reduce the barriers to full and equal access to juvenile diversion.

Perception

1. The Nebraska Supreme Court and the Nebraska State Bar Association should develop and administer training to improve multicultural competence and recognition of differences for judges and all other court personnel. In addition, other agencies not under the management or control of the Nebraska Supreme Court should develop and conduct similar training. These agencies would include, but not be limited to, public defenders, prosecutors, and law enforcement agencies.

Court Personnel

1. The court systems and all individuals hiring court personnel should adopt aspirational goals to have a workforce that is reflective of a diverse community. Responsibility for attaining such objectives should be delegated to appropriate administrators and job performance evaluations should include a review of individual performance in attaining such goals.

2. The court systems should adopt, publish and enforce comprehensive policies for assuring equal opportunity and recruitment of minority employees. Monitoring systems should be established at all levels and administered to assure adherence to such policies to ensure that diversity commensurate with that of the community is being achieved.

3. A formal discrimination complaint procedure should be developed by all court systems and communicated to all employees of the court systems in personnel manuals given to all employees and on announcements posted in court offices.

4. A formal education process should be designed, developed and repeated periodically by the Nebraska Supreme Court to address differences in perception between white and minority employees.

5. All Nebraska court employment specifications and policies should be reviewed and updated to encourage bilingual skills and multicultural knowledge where such capabilities would better serve the public, and such skills should be appropriately compensated.

6. The Nebraska court systems should have, as a performance goal, an ongoing effort to recruit qualified minority applicants for managerial and supervisory positions.

7. A variety of means should be used to inform minority candidates of employment opportunities. These means should include, but not be limited to, multilingual advertisements placed in ethnic centers, churches, and other locations where minorities will be reached. All advertisements should emphasize that the court systems are equal opportunity employers.

Legal Profession Law Schools

1. While the pool of potential minority law school students for Nebraska’s law schools is relatively small, the law schools should continue and increase efforts to attract minority applicants.

2. The Nebraska State Bar Association and the two law schools in Nebraska should make every effort to identify high school and college students from Nebraska’s minority population or those graduating from a Nebraska higher education institution, to inform them about the opportunities available with legal training, and to encourage them to apply to one of the state’s law schools.

3. The Nebraska State Bar Association, the Nebraska State Bar Foundation, and the law schools in Nebraska should make an effort to identify minorities who have been out of college for a period of time and may be interested in a legal career, to inform them about legal education and the legal profession, and to encourage them to apply to one of the state’s law schools.

4. The Nebraska State Bar Association should work with the law schools and other appropriate groups to attract more minority students.

5. The Nebraska State Bar Foundation should consider assisting in efforts to supplement scholarships and assistance already provided by the law schools to minority students.

6. The Nebraska State Bar Association, the Bar Foundation, Nebraska’s two law schools, and the region’s ethnic bar associations should work together to provide a coordinated and targeted campaign to minority students of various ages to encourage pursuit of a career in the legal profession.

7. Among other factors, each Nebraska law school should give positive weight in the admissions process to applicants with bilingual skills.

8. The Nebraska State Bar Association and Nebraska Supreme Court should continue to work with the law schools to provide effective orientation, mentoring, and academic support programs.

9. The Nebraska State Bar Association and Nebraska Supreme Court should work more closely with the law schools to promote adequate clerking opportunities for minority law students.

10. Professional ethics classes should cover racial and ethnic bias and discrimination as they affect law practice, treatment of fellow professionals and treatment of court participants.

11. The law schools, the Nebraska State Bar Association, the Bar Foundation, and the Nebraska Supreme Court should include a fair representation of minority participants in law school, Bar and court activities, events and programs.

12. Law schools in Nebraska should annually evaluate the graduation rates among minority law students in determining the scope and effectiveness of the school’s academic support programs.

13. Entities that affect access to the profession, such as the law schools, Nebraska State Bar Association, and Nebraska State Bar Commission, should collect and maintain appropriate statistics delineated by race and ethnicity (i.e. placement and employment data).

14. Nebraska’s law schools should continue efforts to increase the diversity of their teaching faculty and administration.

Hiring, Retention, and Promotion

1. Law firms and other employers of lawyers should broaden their recruiting and hiring criteria to weigh measures of a candidate’s ability in an attempt to increase the likelihood of hiring minority candidates.

2. Law firms and other employers of lawyers should strive to eliminate behaviors that might be perceived as discriminatory or otherwise offensive to minority persons.

3. When possible, law firms and other employers of lawyers should include minority lawyers on interview, selection, and hiring teams.

4. Law firms should participate in clerkship programs that seek to place minority law students as summer associates, with the goal of expanding the range of criteria upon which the law firm may judge the likelihood of the student’s ultimate success with the firm.

5. The Nebraska State Bar Association should create a section to address race and ethnicity in the law. Among other activities, this section should develop, maintain, and disseminate a voluntary directory of practicing minority lawyers. These should note the lawyers’ location, area of practice, and career goals, to facilitate the lateral hiring of minority lawyers. In addition, this section should develop, maintain, and disseminate a voluntary directory of corporations that retain minority law firms or minority lawyers at majority-owned law firms to handle legal matters for the corporation.

6. The Nebraska State Bar Association should encourage the further development of mentoring programs for lawyers.

7. The Nebraska State Bar Association should consider recommending equal employment opportunity policies for all lawyers in Nebraska.

8. Nebraska court clerks or court administrators should collect and maintain court appointment records delineated by the type of appointment, race and ethnicity of the lawyer or appointed party, and the judge who made the appointment. This data should be reported to the Supreme Court on a periodic basis.

Judicial Selection Process

1. Judicial nominating commissions and the governor should take proactive steps to ensure a state judiciary that is reflective of the communities it serves.

2. The Nebraska Supreme Court and the Nebraska State Bar Association should encourage diversity on the judicial nominating commissions and require that records be kept of the race and ethnicity of commission members.

3. The Supreme Court and the Nebraska State Bar Association should develop and administer training to improve multicultural competence and recognition of differences for those lawyers and laypersons who serve on judicial nominating commissions.

4. The governor should consider factors such as race and ethnicity when making appointments to the judicial nominating commissions.

5. The Nebraska State Bar Association, the judicial nominating commissioners, and community legal organizations and leaders should strive to identify, encourage and support qualified minority judicial applicants.

This report provides a review of several policy options intended to ensure a more representative initial jury pool. It is recommended that through legislative action, the source lists used to create the master jury list be expanded to include individuals with state identification cards and that the judicial branch be granted discretion to add additional source lists in the interest of creating a representative cross section of the community.

1. Compared to their composition in the youth population, Black, Hispanic and Native American youth were significantly overrepresented in the population of youth stopped by law enforcement. Overrepresentation was particularly disparate for Black youth. White and Asian youth were significantly underrepresented.

a. Data indicated that there were significant differences in whether a youth was cited/summoned or arrested by race (p < 0.001). White youth were significantly underrepresented in the population of youth arrested, while Blacks, Native Americans, and Hispanic youth were significantly overrepresented (p < 0.001).

b. Gender was a significant predictor for White, Black, and Hispanic youth (males were more likely to be arrested than females), while Native American females were more likely to be arrested than males (p < 0.01).

Diversion

2. When compared to law enforcement contacts, Black and Native American youth were significantly underrepresented in referrals to diversion, while Asian and Hispanic youth were significantly overrepresented. White youth were referred to diversion at roughly the same rate at which they had contact with law enforcement.

a. Overall, 94.2% of youth referred to diversion, or 4,668 youth, participated at least minimally in diversion. Minimal participation is defined as arranging the first intake appointment with the program. In 287 cases, (5.8% of referrals) the youth or family had no contact with the diversion program, and the youth never participated in diversion. Native American youth were the least likely to make it to this first appointment.

b. Only 62% of the cases that closed in FY2011 were successful. When compared to youth referred to diversion, only White youth were significantly overrepresented in successful outcomes. Native 127 Americans were significantly underrepresented in successful completions.

Detention

3. A total of 4,021 youth were booked into some form of detention in Nebraska at some point between July 1, 2010 and June 30, 2011. Over half of all youth booked into some form of detention were 18 years old or older.

a. White youth accounted for the majority of youth in secure detention facilities (57%), but minority youth were statistically overrepresented. Nearly one quarter (24.9%) of all youth detained in FY2011 were Black. An additional 12.7% were Hispanic. Indian youth accounted for 3.7%.

b. Being male and non-White are both significant predictors of the length of time a youth spends in any form of detention.

c. Age was also a significant predictor of length of stay; specifically, older youth spend less time in all forms of detention. An ANOVA revealed a significant difference in the mean length of time youth of different racial groups spent in secure detention facilities: Black youth were in detention the longest (29.87) when compared to other youth. However, once a variety of control variables were introduced in a regression model, race became non-significant.

d. Black youth and older youth in all forms of detention had more instances of recidivism. The population of the county from which Black youth were referred to detention significantly predicted recidivism.

Juvenile Court

4. Based on data collected from JUSTICE, it is estimated that only 55.3% of youth in Nebraska are prosecuted in the juvenile court system while 44.7% are prosecuted in the adult court system.

a. While Black youth were more likely to face multiple charges, they were also significantly more likely to have those charges amended. Hispanic youth were significantly less likely to have their charges amended.

b. In 57.4% of the cases, youth pled guilty. Data indicated that only 50.1% of youth in juvenile court were represented by legal counsel. The differences across racial groups in whether or not a youth had legal representation were not significant.

c. Data indicated that the mean number of days from filing to disposition was much greater for juvenile court youth (90.97) than for youth in adult court (35.30).

Adult Court

5. When compared to the racial and ethnic distribution of youth in Nebraska, Black and Hispanic youth were significantly overrepresented in adult court, while White and Asian youth were significantly underrepresented in adult court.

a. Data indicated that Black youth were significantly overrepresented in the population of youth transferred to juvenile court, while Hispanic youth were significantly underrepresented.

b. A number of factors were significant in predicting whether a case would be transferred to juvenile court were. These include: age at time of offense (the younger the youth, the more likely their case would be transferred, size of community (the larger the community, the more likely the case would be transferred, and whether or not the youth had legal representation (if the youth had counsel they were significantly more likely to have their case transferred to juvenile court).

c. Of the cases that remained in adult court, in 95.4% of these cases the youth pleaded guilty, either by an admission to the court (65.6%), or by waiver (29.8%).

d. Blacks and Native American youth were significantly overrepresented in the population of youth receiving jail time.

e. Of youth who received a city or state fine, mean judgment amounts were significantly different by race. Asian, Hispanic and Native American youth had significantly higher average fines than Whites or Blacks.

f. Data indicated that only 26% of youth in adult court were represented by counsel. While this percentage is alarmingly low, the proportion of youth with legal representation across racial/ethnic groups was proportionate to their population in adult court, with one exception: Black youth were significantly more likely to have legal representation.

Juvenile Probation

6. Of the juveniles on probation in FY2011, 2,592 cases remained open and the juvenile was still under the supervision of the court. Of those that closed, 69.5% closed successfully, meaning that the juvenile completed the requirements established by the probation officer in the case plan.

7. Both Black youth and Native American youth were still significantly underrepresented in youth who successfully complete juvenile probation. All other groups did not yield significantly different results. a. Probation was revoked in only 12.5 % of all active probation cases. In the majority of cases where the youth was violating the terms of probation, the Probation Officer applied administrative sanctions. The only group that was significantly overrepresented in revocations is Native American youth.

Office of Juvenile Services

8. Race and ethnicity significantly influenced level of placement and the factors contribute to placement outside the home. White youth were significantly underrepresented in the number of youth committed to OJS.

a. Asian youth were most likely to remain with a parent or family member, representing 31% of youth who were not removed compared to 23% of White, and 23% of Hispanic youth. Indian youth were most likely to be removed from their home (only 8% were allowed to remain 130 in home), and 2.7% place in foster care, the remaining 90% were placed in some form of out of home congregate care.

b. Black youth (OJS wards) were the most likely to be placed in a juvenile detention facility. Of the 700 placements: 45% were Black, 27% were Indian, 23% were White, 21.6% were Hispanic, and 23% were Asian. Data indicated that given the racial composition of youth in OJS custody, Blacks and Indian youth were significantly overrepresented in OJS youth placed in detention, while White youth were significantly underrepresented.

Recognizing that there are a variety of factors that influence the costs of indigent defense, the Advisory Committee’s took a five-part approach to the assessment:

 Identify strategies to improve the court appointment process and the quality of representation.

 Identify strategies to reduce the number of court appointments.

 Identify strategies to expand financial support for indigent defense from other sources.

 Identify cost effective alternate service delivery models.

 Identify and reduce unnecessary inefficiencies in case processing/case management practices.

To identify both the factors that contribute to the rising costs of indigent defense and ways in which the justice system can control costs, focus group discussions were conducted with a variety of justice system stakeholders including: those currently (and formerly) receiving court appointments in Lancaster County; public defenders; city prosecutors; county attorneys; Juvenile Court Judges; County Court Judges; and District Court Judges. The Advisory Committee then reviewed the factors and strategies identified through focus group discussions. When applicable and available, the Advisory Committee compiled and reviewed relevant data and national research regarding proposed cost reduction strategies.

Renewed interest in Nebraska’s indigent defense system was raised in 2003. As part of their two-year investigation of racial and ethnic bias in Nebraska’s justice system, the Minority and Justice Task Force traveled to communities across Nebraska, soliciting testimony from the public on perceptions and experiences of racial and ethnic bias in the courts. One of the main concerns voiced at these public hearings was the quality of indigent defense services across the state of Nebraska. Because a higher percentage of minorities than whites are poor and thus unable to afford a private attorney, minorities are more likely than whites to need the services of a public defender or assigned counsel. The quality of the legal services provided by public defenders and assigned counsel, thereby affects how minorities, new immigrants and refugees perceive and are treated in the criminal justice system.