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Transgender man’s killer to remain on death row
Judge rejects new trial for man who murdered Brandon Teena
Published Thursday, 17-Jul-2003 in issue 812
LINCOLN, Neb. (AP) — Convicted triple murderer John Lotter will remain on death row.
The Nebraska Supreme Court on July 11 rejected Lotter’s appeals for a new trial and commutation of his death sentence to life in prison.
Lotter was convicted of the murders that inspired the critically acclaimed 1999 movie Boys Don’t Cry. One of the victims was Brandon Teena, who was born as a female named Teena Brandon, but who lived as a man in southeast Nebraska at the time of his death.
Nebraska’s high court unanimously ruled that Lotter should not be sentenced to life in prison because his conviction and sentence were final before a 2002 U.S. Supreme Court decision.
That ruling said juries, not judges, must decide if aggravating circumstances exist to merit the death penalty.
Lotter was sentenced by a three-judge panel in 1996.
Lotter had argued that the U.S. Supreme Court decision should apply retroactively. The state Supreme Court disagreed.
Nebraska Attorney General Jon Bruning hailed the opinion, saying it was a landmark decision for the state.
“It is a huge victory for the state and the victims of these crimes and their families,” Bruning said.
The ruling closes an avenue of appeal for four other death-row inmates who could have raised the same issues, Bruning said. All of them would have appealed had Lotter been successful, Bruning said.
Lotter’s attorney, James Mowbray, with the Nebraska Commission on Public Advocacy, said he was not surprised with the court’s decision.
Other state Supreme Courts also have declined to apply the U.S. Supreme Court decision in the Arizona case retroactively. Mowbray said he did not expect any court would do that unless ordered to by the U.S. Supreme Court.
Lotter and Nissen were convicted of murdering Teena, who dated a female friend of the men. Prosecutors said Teena was killed because he reported being raped by the two men after they discovered the 21-year-old’s biological identity.
The men also killed Lisa Lambert, 24, and Philip DeVine, 22, who had witnessed Brandon’s death in the farmhouse.
Lotter claims that his partner, Marvin Nissen, actually killed Teena and two witnesses in a farmhouse outside Humboldt on New Year’s Eve, 1993.
Nissen, in a deal with prosecutors, testified against Lotter and was sentenced to life in prison. Lotter received three death sentences and awaits execution in Nebraska’s electric chair.
Lotter argued in appeal that Nissen lied at the trial and that testimony was relied upon by the judges when Lotter was sentenced to death.
A key claim raised by Lotter centers on statements Nissen allegedly made later to a cellmate, Jeff Haley.
Haley allegedly said that Nissen confessed to him that he committed the murders, not Lotter.
But the Supreme Court said the lower court correctly examined testimony at trial and found nothing to corroborate what Nissen allegedly said to Haley.
“Nissen’s statements to Haley could represent the truth,” Judge Kenneth Stephan wrote for the court. “It is at least equally possible, however, that they are fabrications by a convicted felon with little or nothing to lose.”
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