LINCOLN — Erwin Charles Simants has ranked as one of the most dangerous men in Nebraska.
On Oct. 18, 1975, he shot and killed six members of a Sutherland, Neb., family, including three children under the age of 11. He raped two of the victims after they were dead.
As recently as 2010, Lincoln County District Judge Donald Rowlands ruled Simants would “continue to be dangerous in the foreseeable future” because of what he did on that long ago autumn night.
But that's not enough to keep Simants in confinement.
Because he was committed to a state mental hospital, Simants must remain mentally ill as well as dangerous to stay there.
Four recent psychiatric evaluations say Simants is now mentally sound. If Rowlands accepts those evaluations, the law would leave him with no option but to release Simants from the mental ward where he has been locked away the last 35 years.
The judge said after a hearing last week that he will file a written order by the end of this month.
The relatively unusual circumstances of the Simants case stem from a 1979 jury verdict that found him not guilty by reason of insanity. Now 67, he can't be prosecuted again, nor can he be sent to prison.
“If he's not mentally ill, he's walking out the door,” Lincoln County Attorney Rebecca Harling said this week.
The prosecutor doesn't want to see Simants walk. At last week's hearing, she argued he should stay put.
The judge's decision may hinge on the depositions of two psychiatrists and two psychologists who recently evaluated Simants. All agreed, in essence, that he is no longer mentally ill, said Robert Lindemeier of North Platte, the attorney appointed to represent Simants.
Additionally, Simants has not threatened other patients or tried to escape during his years at the Lincoln Regional Center. His behavior has been exemplary, Lindemeier said.
The public safety implications of Simants' potential release loom as Omaha authorities deal with four recent homicides allegedly committed by Nikko Jenkins, a former prison inmate who claims he is mentally ill. A state psychiatrist who evaluated Jenkins before his release concluded he was anti-social but not mentally ill.
Gov. Dave Heineman said this week he was “very concerned” over the possibility that Simants could be set free.
“I hope the four doctors who reviewed that case … they'd better be right,” Heineman said.
Three of the evaluations were completed by regional center professionals and the fourth was done by an independent psychologist hired by Lincoln County.
Attorney General Jon Bruning said Friday there do not appear to be other legal avenues to keep Simants committed if the judge concludes he is no longer mentally ill. The attorney general echoed the governor's concerns about Simants' potential release.
"He's a cold-blooded killer," Bruning said. "Nobody that I know of wants to see Mr. Simants walking the streets."
The Lincoln County prosecutor, however, said Simants' release is far from a done deal, because all four evaluators pointed to an underlying mental health diagnosis. She declined to reveal the diagnosis.
At last week's hearing, Harling said she “argued strenuously” that sufficient evidence exists to keep Simants at the regional center.
“I do not think that the lack of a mental health diagnosis is as clear-cut as some would like it to be,” she said.
It's always been clear-cut who killed Henry and Marie Kellie along with their son and three grandchildren. Simants, a 29-year-old unemployed farm laborer who lived next door to the Kellies, confessed to the crime when he was arrested the next day.
At his first trial in North Platte, Simants was convicted of six counts of first-degree murder and sentenced to death. But the Nebraska Supreme Court struck down his conviction after it was learned the sheriff had made improper contact with jurors while they were sequestered at a motel.
The second trial was moved to Lincoln, where a new jury heard a psychiatrist testify that Simants was schizophrenic. That testimony helped produce a not guilty verdict, but it didn't result in Simants' freedom.
In order to involuntarily commit a person to inpatient treatment, Nebraska law requires the person to be found both mentally ill and a danger to himself or others. Both elements must be present.
After Simants was found not guilty by reason of insanity, a judge ordered him confined at the regional center for treatment.
The regional center is not intended to be a proxy prison for the mentally ill. Staff members treat patients and teach them how to manage their mental illness with the goal of helping them return to the community, if possible.
Simants isn't the first high-profile killer to seek his release from a mental health commitment.
In 1979, Ulysses Cribbs was found not guilty by reason of insanity for firing six shotgun blasts into a crowd at Omaha's Club 89. The attack killed a sheriff's captain and wounded 25 others.
In 2009, District Court Judge Marlon Polk ordered Cribbs released from the regional center, finding he could safely seek treatment for his schizophrenia at Omaha's Veterans Hospital. The judge was complying with a provision of the law that requires the least-restrictive care settings that also protect the public.
Patients also have the right to regular review hearings. The latest such hearing for Simants was last week in Lincoln.
Regional center staff members have long questioned the schizophrenia diagnosis made at the second trial, said Lindemeier, Simants' attorney. They have indicated the rampage was triggered by a substance-induced psychosis or, as Lindemeier put it, a mental break related to alcoholism. The evaluators determined the substance-induced psychosis is in remission, Lindemeier said.
Because one of the slain victims Simants sexually assaulted was a 10-year-old girl, he also has been evaluated for pedophilia.
The regional center evaluators determined he is not a pedophile, based on Simants' insistence that he is not sexually attracted to children, the prosecutor said. The independent evaluator said she could not rule out a pedophilia diagnosis.
“The independent evaluator has concerns about relapse and the fact that violence could come from a relapse,” Harling said.
Audrey Brown of North Platte lost her family members to the man now fighting for his freedom. The oldest child of Henry and Marie Kellie said she has attended all of the evaluation hearings over the years, which always concluded Simants was mentally ill.
There's one reason he has been sober for more than 30 years, she said. He can't get alcohol at the regional center.
“I believe if he's turned loose he'll get ahold of alcohol and drugs again,” Brown said. “And if he does, he'll do something again.”
Predicting future criminal behavior is, at best, difficult. Reuters reported this week on a study at Queen Mary University in London that found common tests used to judge whether a psychopathic prisoner would reoffend were accurate less than half the time.
But danger and risk can't keep Simants locked up, said Harling, the prosecutor who was in kindergarten when the killings occurred.
“I think the deposition of the independent evaluator and some of the statements by Lincoln Regional Center staff would indicate there are huge concerns for public safety if he's let out in the community,” she said.
“But if he's not mentally ill, that may be what happens.”