Nebraska death-row inmate John Lotter denied in latest appeal

John Lotter

LINCOLN — Death row inmate John Lotter has failed in another attempt to have his sentence overturned in federal court.

The 8th U.S. Circuit Court of Appeals recently dismissed Lotter’s appeal of a lower-court decision that allowed his death sentence to stand for the 1993 killing of three people at a rented farmhouse near Humboldt, Nebraska. Regarded as a hate crime that targeted Teena Brandon, who was a transgender man and went by Brandon, the case inspired the 1999 critically acclaimed film “Boys Don’t Cry.”

Although the decision represents a blow to Lotter’s efforts to escape death row, he has another ongoing legal challenge that prevents the state from proceeding with his execution while the challenge is pending. In addition, the Nebraska Department of Correctional Services has not yet replaced expired lethal injection drugs, a prison spokeswoman said Tuesday.

Lotter’s appeal centers on his argument that Nebraska’s system of allowing judges rather than juries to make final sentencing determinations in death penalty cases is similar to one formerly used by Florida, which was declared unconstitutional in 2016 by the U.S. Supreme Court.

In February, Senior U.S. District Court Judge Richard Kopf likened the argument to a “Hail Mary” play in football and dismissed Lotter’s petition for habeas corpus. Last week, a three-judge panel of the federal appeals court wrote that it had carefully reviewed the court file before denying Lotter’s appeal.

Lotter’s attorney, Rebecca Woodman of Lenexa, Kansas, declined comment Tuesday. Lotter could, however, ask the U.S. Supreme Court to review the appellate court’s decision.

In the meantime, a key ruling is pending in Richardson County District Court on a post-conviction motion that raises the same challenge of Nebraska’s death penalty sentencing procedure. Regardless of how the court rules in that case, an appeal to the Nebraska Supreme Court will almost certainly occur.

Lotter, 46, is the second-longest-serving inmate on Nebraska’s death row behind Carey Dean Moore, who was convicted of the 1979 murders of two Omaha cabdrivers.

Separate juries convicted Lotter and Marvin Thomas Nissen of shooting Brandon, 21, Lisa Lambert, 24, and Phillip DeVine, 22.

Nissen was sentenced to life in prison after he provided testimony for the state at Lotter’s trial. Nissen has subsequently said he fired the handgun that killed all three victims but lied on the witness stand when he told jurors that Lotter was the gunman.

Source: Omaha World-Herald, Joe Duggan, August 9, 2017

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