Nebraska: Judge gives death row inmate Lotter's attorneys new deadline

Nebraska's death chamber

A federal judge has given attorneys for an inmate on Nebraska's death row 6 months more to represent him but pressed them during a phone conference Friday about moving forward with whatever their next step will be.

John Lotter, who was convicted in the killing that inspired the 1999 movie "Boys Don't Cry," could be the 1st of the 11 men now on death row in the state to be executed, once he has exhausted his appeals.

In February, Senior U.S. District Judge Richard Kopf denied Lotter's latest federal petition challenging his murder conviction, likening it to a hail Mary pass.

His attorneys, Rebecca Woodman and Jessica Sutton of the Death Penalty Litigation Clinic in Kansas City, Missouri, had asked Kopf to stay the case so they could raise issues over the state's method for determining death sentences in state court.

Kopf refused and denied Lotter's habeas petition, in part because the attorneys hadn't gotten permission from the Eighth Circuit Court of Appeals to file it, as required.

Lotter is appealing the order and also has a case pending in state court.

On Friday, Kopf asked Woodman if the next step was an application for clemency.

Woodman called clemency a fail-safe in the criminal justice system for those under a sentence of death and said it usually isn't sought until all other remedies have been exhausted and the state has sought a death warrant.

Kopf asked how long this was going to go on, pointing out the attorneys were appointed in 2014.

"I realize there have been intervening events," the judge said, alluding to Nebraska lawmakers voting in 2015 to repeal the death penalty, only to have it later reinstated by voters. "But I've got to move this matter along."

Woodman said she believes other remedies remain available to Lotter.

"This is not specifically a clemency issue. It's a legal issue," she said.

When Kopf sought elaboration, Sutton, her co-counsel, mentioned cases raised in April in Arkansas, where 4 executions were stayed.

Kopf said he didn't doubt that once an execution date is set - and the method of execution understood - that there may be subsequent actions that they may wish to challenge.

"The drug protocol and on and on," he said.

Kopf asked James Smith, solicitor general of the Nebraska Attorney General's office, if the state presently was in a position to execute Lotter.

"Does it have the wherewithal to do that, the drugs or whatever it is you need?" the judge asked.

Smith said the state could not proceed with the execution because to get an execution warrant it has to certify to the Nebraska Supreme Court that there are no proceedings pending in any court.

"Procedurally we could not pursue a warrant while those cases are pending," he said.

If the Eighth Circuit affirms Kopf's decision and if Lotter loses the state case, then Smith would ask Scott Frakes, the director of the Nebraska Department of Correctional Services, if the prison was prepared to carry out an execution, Smith said.

In the end, Kopf set a new date in 6 months for the attorneys to update him.

Lotter was sentenced to death for his role in the 1993 killings of Brandon Teena and 2 witnesses, Lisa Lambert and Philip DeVine, at a rural Humboldt farmhouse.

Source: Lincoln JournalStar, June 3, 2017

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