Self-Admitted Error Is Not Enough: Strategic Trial Decisions and Ineffective Assistance After State v. Keadle

I. Introduction

The Nebraska Supreme Court’s decision in State v. Keadle, 320 Neb. 583 (Dec. 19, 2025), is a significant opinion on ineffective assistance of counsel in postconviction proceedings. It addresses two recurring problems in criminal litigation:

• How courts should treat strategic trial decisions that in hindsight appear disastrous; and
• What weight, if any, should be given to a trial lawyer’s own post hoc admission that his or her performance was “deficient.”

The case arises from the disappearance and presumed death of college student Tyler Thomas. Joshua W. Keadle, a fellow student, was the last known person to see her alive. The State charged Keadle with first degree murder on a theory that he raped, killed, and disposed of Thomas’ body near a river. The defense countered with several alternative explanations for her disappearance, most prominently that she, intoxicated and without a coat, succumbed to hypothermia and accidentally died.

To support the hypothermia theory, the defense called Dr. Thomas Young, a forensic pathologist. On cross-examination, however, Young agreed with a prosecutor’s question that if one purposely takes someone into a situation where they may not be able to return to safety, “you would call it a homicide.” Because the jury had already heard that Keadle took Thomas to a riverside area and left her there, that exchange powerfully supported the view that Thomas’ death—if she died—was a criminal killing attributable to Keadle.

Defense counsel did not object to this exchange, did not attempt to rehabilitate Young on redirect, and did not seek a jury instruction distinguishing the medical examiner’s use of “homicide” from its legal meaning. At sentencing, lead counsel candidly told the court that calling Young had been a mistake, that his own performance was “deficient,” and that Young’s testimony had been a “turning point” that jurors later said influenced their verdict of second degree murder.

On postconviction review, Keadle argued that:

1. Trial counsel were ineffective in failing to “do anything” about Young’s damaging cross-examination testimony;
2. Counsel were ineffective for failing to move for a directed verdict at the close of the State’s case; and
3. It was ineffective for trial counsel (Pickens) to also handle the direct appeal, particularly after he admitted deficient performance.

The district court denied relief after an evidentiary hearing, and the Nebraska Supreme Court affirmed. The opinion clarifies the standard of review for strategic decisions in ineffective-assistance claims, emphasizes the strength of the presumption of competence, and holds that counsel’s own self-criticism does not establish constitutional deficiency.

II. Summary of the Opinion

The Nebraska Supreme Court’s holdings can be summarized as follows:

• Standard of Review for Ineffective Assistance:
  Ineffective-assistance claims are mixed questions of law and fact. The court:
  • Reviews factual findings (e.g., what counsel did, whether decisions were strategic) for clear error; and
  • Reviews legal conclusions (whether performance was deficient and prejudicial under Strickland v. Washington) independently (de novo).
• Postconviction Relief is Narrow:
  Postconviction relief is available only to remedy prejudicial constitutional violations that render a judgment void or voidable.
• Strickland Standard Reaffirmed:
  To obtain relief for ineffective assistance of counsel, a defendant must prove:
  • Deficient performance—counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law; and
  • Prejudice—a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different, where “reasonable probability” means a probability sufficient to undermine confidence in the outcome.
• Strategic Choices Regarding Expert Witness Were Not Deficient:
  The decision to call Dr. Young, the decision not to object to his cross-examination testimony, the decision not to redirect him, and the decision not to request special clarifying instructions about “homicide” were all strategic choices within the wide range of reasonable professional assistance.
• Counsel’s Self-Admission of Deficiency Is Not Binding:
  Pickens’ own statements at sentencing and in his deposition—that he believed his performance was deficient—do not bind the courts and do not, by themselves, establish deficient performance under Strickland. The appellate court must independently assess whether counsel’s actions met constitutional standards.
• Unraised Claims Are Procedurally Barred on Appeal:
  Keadle’s new postconviction claims—that counsel were ineffective for failing to move for a directed verdict and for representing him on direct appeal—were not raised in his verified postconviction motion and therefore could not be considered for the first time on appeal.
• Outcome:
  All ineffective-assistance claims either failed on the merits (strategic decisions regarding Young) or were procedurally barred (directed verdict and direct-appeal representation). The order denying postconviction relief was affirmed.

III. Precedents and Authorities Cited

A. Strickland v. Washington and Its Nebraska Applications

The opinion is anchored in the U.S. Supreme Court’s landmark decision in Strickland v. Washington, 466 U.S. 668 (1984), which established the now-familiar two-pronged test for ineffective assistance of counsel:

• Deficient performance: Counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.
• Prejudice: There is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

The Nebraska Supreme Court reiterates several core Strickland concepts:

• Courts make every effort to eliminate “the distorting effects of hindsight” and evaluate conduct from counsel’s perspective at the time.
• There is a “strong presumption” that counsel’s conduct falls within the wide range of reasonable professional assistance.
• Strategic judgments after investigation are “virtually unchallengeable” and are entitled to substantial deference.

The opinion also cites several Nebraska cases elaborating on these principles:

• State v. Betancourt-Garcia, 317 Neb. 174, 9 N.W.3d 426 (2024): Reiterating that review is mixed law and fact; defining prejudice as a probability sufficient to undermine confidence in the outcome.
• State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021): Confirming the defendant’s burden under Strickland to prove both prongs for postconviction relief.
• State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022): Emphasizing the strong presumption of reasonableness as to trial counsel’s performance.
• State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014); State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011); State v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000): All underscoring that the defendant bears the burden of overcoming the presumption of competence.

B. Postconviction Relief as a Narrow Remedy

The court cites State v. Davis, 317 Neb. 59, 8 N.W.3d 247 (2024), to stress that postconviction relief is a “very narrow” remedy. It is available only for:

• Prejudicial constitutional violations; and
• Violations serious enough to render the judgment void or voidable.

This framing is important: even egregious-sounding trial missteps are not automatically constitutional defects; they must meet the stringent Strickland standard and be of constitutional dimension.

C. Strategic vs. Tactical Decisions: Borrowing From Other Jurisdictions

For the key question whether certain actions were strategic, the court relies heavily on authority from other jurisdictions, especially the Eleventh Circuit:

• Provenzano v. Singletary, 148 F.3d 1327 (11th Cir. 1998):
  This case provides a framework the Nebraska Supreme Court expressly adopts:
  • Whether an attorney’s actions were actually the product of a tactical or strategic decision is a question of fact (reviewed for clear error).
  • Whether that strategic decision is reasonable enough to fall within professional competence is a question of law (reviewed de novo).
• Supporting cases:
  • United States v. Cockrell, 720 F.2d 1423 (5th Cir. 1983);
  • Edwards v. Lamarque, 475 F.3d 1121 (9th Cir. 2007);
  • Sallahdin v. Mullin, 380 F.3d 1242 (10th Cir. 2004);
  • Floyd v. State, 159 So. 3d 987 (Fla. App. 2015);
  • State v. Hernandez, 227 N.C. App. 601, 742 S.E.2d 825 (2013).
  All treat the strategic nature of counsel’s acts as factual, but the adequacy of strategy as a legal question.

By explicitly adopting this structure, Keadle clarifies Nebraska’s doctrinal approach: trial courts decide whether counsel’s conduct was strategic; appellate courts defer absent clear error. Appellate courts then decide whether that strategy was reasonable under Strickland.

D. Procedural Bar and Stipulations as to Law

Two other lines of authority are relevant:

• Procedural Bar in Postconviction Appeals:
  The court cites State v. Goynes, 318 Neb. 413, 16 N.W.3d 373 (2025), for the rule that an appellate court will not consider claims not raised in the verified postconviction motion. This underpins the refusal to address:
  • The failure to move for directed verdict at the close of the State’s case; and
  • The claim that trial counsel was ineffective in handling the direct appeal.
• Stipulations About Law and Counsel’s Self-Assessment:
  The court invokes State v. Blocher, 313 Neb. 699, 986 N.W.2d 275 (2023), for the proposition that parties cannot stipulate to questions of law, and any such stipulations must be disregarded. This principle supports the conclusion that a lawyer’s own statement that his performance was “deficient” cannot dictate the constitutional analysis.
  
  The court also cites Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), not for its specific immigration rule, but to highlight that encouraging or requiring lawyers to denounce their own performance can create problematic incentives, something courts must be cautious about.

IV. The Court’s Legal Reasoning

A. Standard of Review and the Nature of the Inquiry

The court begins by reiterating that ineffective-assistance claims are mixed questions of law and fact:

• Factual findings (what counsel did, what they thought, whether a decision was strategic) are reviewed for clear error—a highly deferential standard under which an appellate court will reverse only if left with a “definite and firm conviction” that a mistake was made.
• Legal determinations (whether performance was deficient and whether there was prejudice) are reviewed independently of the lower court’s decision.

Importantly, the court confirms that:

• A reviewing court may address either prong of the Strickland test first, and need not reach both if the defendant fails on one.

In Keadle, the court focuses on the performance prong—whether counsel’s actions regarding Dr. Young were objectively unreasonable—without reaching prejudice.

B. The Response to Dr. Young’s Testimony

1. Factual Finding: Counsel’s Decisions Were Strategic

The district court found, and the Supreme Court accepted, that:

• The decision to call Dr. Young was strategic, intended to support the defense theory that Thomas died of hypothermia accidentally.
• The decision not to object to the damaging cross-examination, not to conduct redirect questioning to rehabilitate him, and not to request clarifying jury instructions were likewise strategic choices made by “a team of experienced trial lawyers” after “thorough investigations of fact and law and extensive discussion.”

Keadle argued that Pickens “froze” at trial when Young gave the damaging answer, pointing to the sentencing remark, “I sat [t]here and did nothing.” The Supreme Court, however, looks at the entire record, including:

• Pickens’ deposition testimony that even in hindsight he did not know how to “clean up” Young’s statement via objection, redirect, alternate witnesses, or special instructions.
• Both Pickens’ and McDonald’s consistent statements that:
  • Redirect examination risked highlighting the damaging testimony (“reinforcing what the jury had already heard”).
  • They could not predict how Young would respond to further questioning, meaning efforts to rehabilitate him could “make [the situation] worse.”
  • They consciously decided instead to try to address the problem in closing argument, where they argued that leaving Thomas at the river was not a crime.

Given this testimony, the Supreme Court holds there was no clear error in the trial court’s factual finding that counsel’s inaction at the moment of cross was not simply paralysis, but part of an overall strategic handling of a difficult development at trial.

2. Legal Question: Were Those Strategic Decisions Reasonable?

Once the decisions were deemed strategic, the court turned to the reasonableness of those strategies under the performance prong of Strickland.

The court emphasizes:

• There is a strong presumption that counsel acted reasonably.
• The defendant bears the burden of overcoming that presumption.

On appeal, Keadle argued:

• That “doing nothing” after Young’s damaging statement was per se unreasonable and outside the range of competent representation.
• That counsel “had to do something” to rehabilitate Young, whether through redirect, objections, or instructions.

The court rejects these arguments, reasoning that:

• The record shows counsel did not literally “do nothing”:
  • They conferred after the testimony.
  • They chose to fold their response into closing argument, where they explicitly argued that abandoning Thomas, though a “bad decision,” was “not a crime that he can be charged with.”
• There is no clearly superior alternative identified in the record:
  • No viable objection to Young’s answer is apparent—his response was a clarification of his own earlier testimony, well within permissible cross-examination.
  • No clear path for helpful redirect is shown—indeed, both counsel explained the substantial risk of making matters worse.
  • Neither counsel nor the postconviction record articulated a specific, workable jury instruction that could have clarified the medical examiner’s use of “homicide” versus the legal elements of murder, without confusing the jury or undermining the defense theory.

The court is particularly cautious about second-guessing trial counsel’s handling of unexpected but inevitable risks of trial. Homicide trials often require counsel to react to unanticipated testimony; Strickland does not demand perfection or omniscience—only reasonable professional judgment under the circumstances.

3. Counsel’s Admission of “Deficiency” Is Not Controlling

A key feature of the case is Pickens’ own statement at sentencing that:

• He believed his performance regarding Dr. Young was “deficient.”
• He felt “responsible” for the second degree murder conviction.
• He had been told by jurors that Young’s “homicide” testimony made the difference in their deliberations.

On appeal, however, Keadle’s counsel conceded that Pickens’ admission was not legally “binding” on the court. The Supreme Court nonetheless addresses the issue explicitly, holding:

• Counsel’s self-criticism does not relieve the court of its duty to engage in an independent Strickland analysis.
• Allowing counsel to effectively stipulate to legal deficiency would conflict with the settled rule that parties may not stipulate to questions of law (Blocher).
• Such a rule could create perverse incentives:
  • Counsel might feel pressure to “confess” deficient performance to maximize a client’s postconviction prospects, even when their performance was constitutionally sound.
  • This would blur the line between ethical candor and strategic self-denunciation and complicate the administration of justice.

In short, self-reproach is not a constitutional standard. Judges, not lawyers, decide whether performance was objectively unreasonable and prejudicial.

C. The Court Declines to Reach Prejudice

Because the Supreme Court finds no deficient performance with respect to Young’s testimony, it does not need to—and does not—reach the issue of prejudice. This is consistent with Strickland, which allows courts to dispose of ineffective-assistance claims on either prong.

This is also notable in light of:

• Pickens’ belief that the outcome would have been different (manslaughter or acquittal) absent Young’s cross-examination testimony; and
• Jurors’ reported comments that Young’s “homicide” statement was influential.

Even such evidence, while relevant to a prejudice analysis, cannot substitute for a threshold showing of constitutionally deficient performance. Without that, there is no ineffective assistance claim.

D. Remaining Claims: Procedural Bar

Keadle’s remaining arguments were that counsel were ineffective for:

1. Failing to move for a directed verdict at the close of the State’s case; and
2. Handling his direct appeal despite their own prior alleged deficiencies.

The Supreme Court does not reach the merits of these claims because:

• They were not pleaded in Keadle’s verified postconviction motion.
• Under Goynes, claims not raised in the verified motion cannot be raised for the first time on appeal from the denial of postconviction relief.

This reinforces a core procedural principle in Nebraska postconviction practice: the verified motion is the operative pleading, and litigants must include all known constitutional claims at that stage to preserve them for appellate review.

V. Complex Concepts Simplified

A. Ineffective Assistance of Counsel and the Strickland Test

To succeed on a claim of ineffective assistance of counsel, a defendant must prove:

1. Deficient performance
   The lawyer’s conduct fell below what a reasonably competent criminal defense lawyer would have done in similar circumstances.
2. Prejudice
   There is a reasonable probability (not mere possibility) that the result would have been different without the lawyer’s errors.

Importantly:

• Court review is highly deferential to counsel’s choices. Many actions that in hindsight look like mistakes are still within the range of professionally reasonable judgment.
• Strategic decisions that are informed and deliberate are rarely deemed deficient, even if they turn out badly.

B. Postconviction Relief

Postconviction relief is a procedure that allows a convicted defendant to challenge the validity of a conviction or sentence based on constitutional grounds that were not and could not have been fully litigated before—such as ineffective assistance of counsel, newly discovered evidence of innocence, or certain due process violations.

In Nebraska, as Keadle reaffirms:

• The remedy is narrow and does not exist to relitigate ordinary trial errors.
• The petitioner must file a verified motion (sworn under oath) setting forth all constitutional claims and must prove them at an evidentiary hearing if one is granted.

C. Mixed Questions of Law and Fact; “Clear Error” vs. De Novo Review

A mixed question of law and fact involves applying a legal standard to historical facts. Ineffective-assistance claims are classic mixed questions, because they require:

• Fact-finding about what counsel did, knew, and intended; and
• Legal evaluation of whether those actions were reasonable and prejudicial.

Two key review standards appear in Keadle:

• Clear error (for factual findings):
  • Appellate courts must accept the trial court’s factual findings unless left with a “definite and firm conviction” that a mistake has been made.
  • This applies, for example, to whether an attorney’s decision was actually “strategic.”
• De novo (for legal conclusions):
  • Appellate courts consider legal issues anew, with no deference to the lower court.
  • This includes deciding whether a strategy was reasonable and whether any deficiency was prejudicial under Strickland.

D. Strategic vs. Tactical Decisions

A strategic or tactical decision is a considered choice by counsel about how best to pursue the client’s defense—such as:

• Which witnesses to call;
• How to cross-examine or whether to redirect a witness;
• Whether to highlight or downplay certain pieces of evidence;
• Which arguments to emphasize in closing.

Under Strickland and Keadle:

• Strategic decisions made after adequate investigation are “virtually unchallengeable”.
• They are not ineffective simply because they turn out badly.
• The key is whether the decision was based on a reasonable assessment of risks and benefits at the time.

E. “Homicide” in Medical vs. Legal Usage

A subtle issue in Keadle is the term “homicide”:

• Medical examiner’s usage:
  Forensic pathologists classify the manner of death (e.g., natural, accident, suicide, homicide, undetermined). “Homicide” in this context typically means the death resulted from the act of another person. It is not a legal finding of guilt or of a particular degree of murder.
• Legal usage:
  In criminal law, “homicide” is a generic term for the killing of one human being by another. It is divided into crimes like:
  • First degree murder (e.g., premeditated),
  • Second degree murder (intentional but not premeditated),
  • Manslaughter (e.g., reckless killing or killing under provocation),
  • And non-criminal homicides (e.g., justifiable self-defense).

In Keadle, Young’s statement that intentionally placing someone where they cannot return to safety would be classified as a “homicide” risked the jury equating:

• Pathological classification (“homicide” as manner of death) with
• Legal guilt (criminal homicide committed by Keadle).

Keadle argued that counsel should have obtained a jury instruction clarifying this difference. The court’s refusal to find ineffective assistance, however, rests on the conclusion that:

• No specific, clearly helpful instruction was identified; and
• Seeking such an instruction could have been risky or confusing, making the decision not to request it a reasonable strategic judgment.

F. Procedural Default in Postconviction Appeals

“Procedural default” in this context refers to the principle that if a defendant fails to properly raise a claim at the appropriate time and in the appropriate manner, a court will not consider it later.

In Nebraska postconviction proceedings:

• The defendant must include all constitutional claims in the verified motion.
• New claims presented for the first time on appeal are not considered, absent some recognized exception (not discussed in Keadle).

This rule ensures:

• Fairness to the State and to the trial court, which should have an opportunity to address all claims in the first instance; and
• Finality of judgments by preventing piecemeal litigation.

VI. Impact and Implications

A. Raising the Bar for Ineffective-Assistance Claims Based on Strategy

State v. Keadle reinforces and sharpens the already demanding standards for ineffective assistance claims where the challenged actions are part of counsel’s trial strategy. Key takeaways for future litigants include:

• It is not enough that counsel’s strategy backfired or that another lawyer, in hindsight, would have chosen differently.
• The defendant must show that no reasonably competent lawyer would have chosen the same course under the circumstances.
• Counsel’s own expression of regret—even strong regret—is not decisive; courts look to objective reasonableness, not subjective self-criticism.

This likely will make it more difficult for postconviction petitioners in Nebraska to prevail on claims tied to:

• Selection and management of defense experts;
• Decisions about whether and how to object or redirect when testimony becomes adverse; and
• Choices about focusing certain arguments in closing rather than through additional testimony.

B. Weight (or Lack Thereof) of Counsel’s Self-Admission

The opinion sends a clear signal that:

• Trial counsel’s self-criticism is informative but not determinative.
• Courts will not let postconviction cases turn on “confessions” of error by lawyers, which could be influenced by:
  • Emotional reactions to an adverse verdict;
  • Desire to help a client obtain new proceedings; or
  • Overly harsh self-assessment inconsistent with professional norms.

For practitioners, this has practical implications:

• Lawyers should be candid and reflective about their performance, but they should understand that calling one’s own conduct “deficient” is a legal characterization courts are not bound to accept.
• Postconviction counsel cannot rely on a trial lawyer’s mea culpa as a shortcut around rigorous Strickland analysis; they must still:
  • Demonstrate how the challenged acts fell below professional standards; and
  • Develop a concrete, plausible prejudice theory.

C. Clarification of the Role of Expert Testimony in Defense Strategy

The case underscores the double-edged nature of defense experts in criminal trials:

• Experts can powerfully support alternative explanations (here, hypothermia), but
• They can also be turned against the defense on cross, particularly if hypotheticals align with the prosecution’s theory.

After Keadle, Nebraska defense lawyers should:

• Carefully evaluate whether expert testimony is truly necessary or whether a theory can be presented via inference and argument alone.
• Anticipate likely cross-examination angles and prepare the expert accordingly—especially on terms like “homicide” that have both technical and lay connotations.
• Be prepared to explain, in the record if necessary, why certain choices (like not conducting redirect) were made, in order to preserve the strategic character of those decisions for later review.

D. Procedural Rigor in Postconviction Pleading

By refusing to entertain IAC claims not pleaded in the verified motion, the court reinforces a culture of rigorous:

• Issue spotting at the postconviction stage; and
• Comprehensive pleading of all known constitutional violations.

For postconviction practitioners, the implication is straightforward:

• Any plausible ineffective-assistance theory—trial or appellate—should be included in the initial verified motion or risk being foreclosed on appeal.
• Where trial counsel also served as direct-appeal counsel, any potential conflict of interest or failure to raise one’s own ineffectiveness should be expressly pleaded as a distinct appellate-ineffectiveness claim.

E. Alignment With National Standards

By adopting the Provenzano framework and citing federal circuit and state appellate decisions, Keadle aligns Nebraska’s approach to:

• Classifying the nature of counsel’s decisions (fact vs. law); and
• Applying deferential review to “strategic” determinations by trial courts.

This congruence with national doctrine has implications for:

• Federal habeas review, where federal courts apply an additional layer of deference under 28 U.S.C. § 2254(d) to state-court determinations that themselves already apply Strickland deference.
• The predictability of Nebraska’s ineffective-assistance jurisprudence in line with U.S. Supreme Court precedent.

VII. Conclusion

State v. Keadle is a notable addition to Nebraska’s ineffective-assistance and postconviction jurisprudence. The Supreme Court affirms the denial of postconviction relief by:

• Reaffirming that ineffective-assistance claims are subject to strict standards under Strickland, with a strong presumption in favor of counsel’s competence;
• Clarifying that whether counsel’s actions were “strategic” is a factual question reviewed for clear error, while the reasonableness of those strategies is a legal question reviewed de novo;
• Holding that decisions to call and handle an expert witness, even when they backfire dramatically, can remain within the wide range of reasonable professional assistance when based on rational risk assessment;
• Making clear that a lawyer’s self-admitted “deficiency” is not binding on courts and does not substitute for an independent constitutional analysis; and
• Reinforcing the rule that postconviction appeals cannot introduce new claims not pleaded in the verified motion.

For defendants and practitioners, the message is sobering but clear: the Constitution guarantees competent representation, not error-free trials. Even painful strategic missteps, acknowledged by counsel and lamented as turning points, will not support postconviction relief unless they cross the demanding threshold of Strickland—a threshold that Keadle makes more precise and, in practice, harder to meet.