Lawyers contest constitutionality of Nebraska death penalty

Schroeder has been serving a life sentence for murder but now also faces a potential death sentence for allegedly choking cellmate Terry Berry Jr. to death in April at the Tecumseh State Prison.

In an effort to create a viable death penalty procedure in the wake of that vote, the Nebraska Department of Correctional Services changed the lethal injection protocol earlier this year.

"The decision to file aggravating circumstances can be affected by the legal experience of the prosecutor, the size and resources of the particular county, any prejudice or bias of the prosecutor, the political ambition of the prosecutor or other political circumstances," the motion stated.