John Lotter has joined a fellow death row inmate in lodging a challenge to Nebraska's 3-judge method for determining whether a killer should receive a death sentence.
And a veteran death penalty attorney expects the other eight members of Nebraska's death row to follow suit.
A 3-judge panel made the decision to send Lotter to death row in 1996 for his role in a 1993 triple murder near Humboldt that inspired the film "Boys Don't Cry." The now-45-year-old targeted Teena Brandon for being transgender and reporting a rape to police.
Lotter's attorneys argue that Lotter had a right to have jurors, not judges, weigh his ultimate fate, following a recent U.S. Supreme Court ruling that declared Florida's scheme unconstitutional.
Lotter argues that a recent U.S. Supreme Court ruling "renders the Nebraska capital sentencing scheme unconstitutional and void."
The Nebraska Attorney General's Office disagrees - and has filed motions resisting a similar attempt in another death row inmate's appeal.
The U.S. Supreme Court overturned Florida's capital punishment scheme, noting that defendants didn't have the right to have jurors be the finder of every fact necessary for the death penalty.
After the U.S. Supreme Court struck down Florida's sentencing scheme, Delaware's high court followed suit and threw out that state's scheme.
Attorney Jerry Soucie, who has represented several death row inmates, said Friday that Nebraska's death penalty scheme has been ripe for challenge.
Soucie's reason: Nebraska has jurors weigh only aggravating factors that lead to death and not mitigating circumstances that might weigh in a defendant's favor. And a defendant doesn't have the right to have jurors, rather than judges, make the ultimate determination of death or life.
"It is really a big deal," Soucie said. "This issue has been floating around a long time."
Omaha attorney Alan Stoler filed a similar appeal on behalf of Jeffrey Hessler, convicted in the rape and murder of 15-year-old newspaper carrier Heather Guerrero.
State officials have argued that Nebraska's sentencing scheme allows jury participation and is not identical to the one struck down in Florida.
In Nebraska, a 2nd trial takes place after a defendant is convicted in a death penalty case. The same jury that decided guilt also decides whether aggravating factors exist to justify the defendant's execution.
If the jury finds that aggravating factors were present in the murder, a 3-judge panel is convened to determine whether they outweigh any mitigating factors in the defendant's favor. The 3 judges also must determine if the death sentence is warranted and, if so, whether it is proportionate to the penalty imposed in similar cases.
After making the necessary determinations, the judges impose the sentence.
"The State of Nebraska denies that Nebraska's capital sentencing statutes violated the defendant's ... right to a jury," Assistant Attorney General Doug Warner wrote in a recent filing in the Hessler case.
Lotter's attorneys, Rebecca Woodman and Tim Noerrlinger, wrote that Nebraska's sentencing setup doesn't go far enough in requiring jury determinations.
"Nebraska (law) unconstitutionally permits a judge, rather than a jury, to find facts necessary to impose a sentence of death," they wrote.
Both challenges currently are at the district court level; it could be months before they reach the Nebraska Supreme Court.
Source: Omaha World-Herald, January 14, 2017
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