Skip to main content

Nebraska: Death row inmate Lotter argues sentencing procedure is unconstitutional

Jury box
John Lotter took his latest shot at getting off death row Thursday when his lawyer attacked the constitutionality of Nebraska's capital sentencing law.

Sentenced to die for the 1993 triple-homicide that inspired the film "Boys Don't Cry," Lotter has filed multiple unsuccessful appeals and post-conviction motions during his 22 years on death row. On Thursday, Lotter's attorney told the Nebraska Supreme Court that the state law violates a defendant's constitutional rights to a jury trial and due process because it gives judges the final say when imposing death sentences.

That's a problem because the U.S. Supreme Court has said juries must determine the facts necessary for a death sentence, said Rebecca Woodman, an attorney from Lenexa, Kansas, who represents Lotter.

"Nebraska is the only active death penalty state without a sentencing structure that allows a jury to make the central findings of fact to impose a death sentence," she said.

Nebraska's system remains constitutionally sound because juries must unanimously decide aggravating factors, which are the key elements in the sentencing phase, said James Smith, solicitor general for the Nebraska Attorney General's Office. The judicial panel then decides if any mitigating factors exist in favor of the defendant before declaring the sentence.

"Finding aggravating factors is the fact that's significant, the fact that juries must decide," he said. "The aggravating factors are what makes the defendant death-eligible."

Thursday's oral arguments came just 2 weeks after Nebraska carried out its 1st execution in 21 years. Carey Dean Moore was put to death Aug. 14 for the 1979 slayings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland.

Moore's execution means Lotter takes over as the state's longest-serving death row inmate. But the state high court is unlikely to consider setting an execution date for Lotter or the 10 other men on death row before they make a decision in Thursday's appeal.

The court typically takes several months after oral arguments to publish decisions. But if it should rule in Lotter's favor, that could mean the Legislature would have to change the law and the death row inmates would get new sentencing trials.

Much of Thursday's hearing was spent on how Nebraska should apply a 2016 U.S. Supreme Court ruling in a case called Hurst v. Florida. In that decision, the nation's high court struck down a procedure in Florida that allowed juries to make sentencing recommendations to a judge, who then decided whether to impose a death sentence.

Lotter's attorney said the Hurst decision prompted Florida and Delaware to change their death penalty sentencing laws. And she argued that the Florida system was very similar to Nebraska's.

"Nebraska's statutory scheme is unconstitutional because it bases a death sentence not on a jury's verdict, but on judge-only findings of critical facts necessary to impose a sentence of death," Woodman said.

Court of Appeals Judge Riko Bishop, who sat in for a high court judge who recused herself from the Lotter case, questioned why Nebraska's system would be deficient. She said the law requires the jury - not the judges - to decide aggravating factors, which are the key element necessary to impose death.

Woodman said a death sentence can't be handed down until the judges weigh the aggravators against the mitigators. A jury finding evidence of aggravating circumstances alone is not enough to impose a death sentence, she argued.

She also told the court that the Hurst decision should be applied retroactively to Lotter, meaning he should get a new sentencing hearing.

Smith, the state's attorney, disagreed. He said the U.S. Supreme Court did not declare the Hurst decision a new rule of constitutional law nor has it since ruled that it should be applied retroactively.

In addition, Smith pointed to a recent decision by the 8th U.S. Circuit Court of Appeals, which found that Hurst did not apply retroactively to a death penalty case in South Dakota. The 8th Circuit includes Nebraska.

Lotter was sentenced to death for the 1993 slayings of Teena Brandon, Lisa Lambert and Phillip Devine at a rented farmhouse near Humboldt. The case generated national notoriety because Brandon, a transgender man, was the target of Lotter and his accomplice.

The 47-year-old inmate has maintained his innocence despite repeated court decisions upholding his guilt.

Source: Omaha World-Herald, August 31, 2018


⚑ | Report an error, an omission, a typo; suggest a story or a new angle to an existing story; submit a piece, a comment; recommend a resource; contact the webmaster, contact us: deathpenaltynews@gmail.com.


Opposed to Capital Punishment? Help us keep this blog up and running! DONATE!



"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

Most viewed (Last 7 days)

Iran | 10 executed in Ahvaz, Isfahan, Karaj

Four prisoners, including an Afghan national, were executed at Ghezel Hesar Prison in Karaj on Wednesday, November 4, 2026. All four had been sentenced to death under Iran’s qisas (retributive justice) laws on murder charges. According to information obtained by the Hengaw Organization for Human Rights, one of the executed prisoners was identified as Gol Agha Eskandari, an Afghan national. Eskandari had been convicted of murder following a dispute between neighbors in the Khorasan Square area of Tehran in July 2024 and subsequently sentenced to death.

Indiana executes Jeffrey Weisheit

An Indiana man who admitted killing his girlfriend's two children was executed early Thursday in the first of three lethal injections scheduled for the same day in the U.S. Jeffrey Weisheit killed the children, ages 8 and 5, by setting fire to his girlfriend's house in the Evansville area in 2010.  The remains of 8-year-old Alyssa Lynch and 5-year-old Caleb Lynch were recovered from the ruins of a fire at their home in the Evansville area. Alyssa’s body was in a closet. Caleb’s body was on a mattress, restrained with duct tape. A railroad flare was in his underwear, and another was under his body. The children’s mother, Lisa Lynch, was at work at the time. She was in a relationship with Weisheit, but it was breaking down, investigators said. Weisheit spent 13 years on death row after his conviction. Weisheit died at the Indiana State Prison in Michigan City. The lethal injection started just after midnight, and he was pronounced dead at 12:45 a.m., according to Noelle Russell, ...

Judge allows Tennessee death row inmates to include botched executions in lawsuit

NASHVILLE, Tenn. (WKRN) — Two failed executions in Tennessee are now at the center of a growing legal battle over the state’s lethal injection protocol after a judge ruled in favor of death row inmates Friday. A Davidson County judge ruled death row inmates can expand their lawsuit to include new allegations stemming from the botched executions of Tony Carruthers and Christa Pike. The original lawsuit, filed in March 2025, argues Tennessee’s death penalty protocol violates the constitutional rights of death row inmates with complex medical conditions. More than one year later, the state then failed to execute two inmates: Tony Carruthers and Christa Pike.

Vigil planned ahead of high-profile Oklahoma inmate's execution

OKLAHOMA CITY (KOKH) — After the Oklahoma Pardon and Parole Board denied clemency for a high-profile death row inmate in Oklahoma, a local organization is protesting his execution. James Pavatt was sentenced to death for the 2001 murder of Rob Andrew, a 39-year-old Oklahoma City advertising executive and father of two. Evidence presented at Pavatt's trial showed that he began an affair with Andrew's wife, Brenda Andrew, in 2001. Prosecutors argued that the murder was especially cruel and that Pavatt killed Andrew for an $800,000 insurance policy.

Florida executes Jesse Guardado

Man convicted of 2004 killing is put to death in Florida’s 19th execution this year, tying a record Florida carried out a record-tying 19th execution of the year in an unusual instance of 3 states administering the death penalty on the same day. Jesse Guardado was pronounced dead at 6:13 p.m. following a 3-drug injection at a state prison in Starke. He had pleaded guilty to fatally stabbing 75-year-old Jackie Malone inside her Walton County home in 2004 before stealing her jewelry box, $80, and other valuables to buy drugs. The woman had helped him get a job and housing.

Newsom Commutes the Sentences of California’s 548 Death Row Inmates

Gov. Gavin Newsom, in one of his last acts, commuted the sentences of all prisoners with death sentences, calling capital punishment morally objectionable. That’s about 1/4 of death sentences nationwide.  Gov. Gavin Newsom of California moved to spare the lives of all 548 prisoners on the state’s death row on Thursday in the largest mass commutation of death sentences in modern American history.  Mr. Newsom said he made the decision because he finds capital punishment morally objectionable. He reduced every death sentence to life in prison without parole, a sweeping move that will require a review by the state’s highest court in some cases and could draw legal challenges. 

Alabama executes Michael Shannon Taylor

Alabama executes man convicted of 1991 double murder  The state of Alabama carried out the execution of 54-year-old Michael Shannon Taylor Thursday night for the 1991 murders of an elderly Etowah County couple, 35 years and 1 day after the crime.  Taylor, convicted in 1993 on 3 counts of capital murder, was sentenced to death unanimously by a jury for killing 83-year-old Ivan Ernest Moore and 79-year-old Lucille Moore inside their Gadsden home during a robbery. Taylor was 19 at the time. 

USA | 3 states to carry out rare triple execution this week

If all three executions are carried out as planned, it will be the second triple execution in the U.S. this year, reflecting an overall uptick in the death penalty since the beginning of 2025. Three states are planning to carry out a rare triple execution this week on Nov. 5. Indiana is set to execute Jeffrey Weisheit, 50, by lethal injection for the 2010 murders of his girlfriend's two children, 8-year-old Alyssa Lynch and her 5-year-old brother, Caleb. The children were burned alive in their home.

Iran executes three more January protesters accused of spying for Israel, US

In a statement, the judiciary said that “the death sentences of Hassan Deoband, Hamid Kazemi, and Reza Zangana were carried out on charges of ‘participating in operational action for the infamous Zionist regime and the United States and hostile groups.’” ERBIL, Kurdistan Region of Iraq – Iran on Sunday executed three more protesters over their involvement in the nationwide demonstrations in January, the judiciary announced, accusing them of spying for the United States and Israel and destroying infrastructure. 

Indiana's governor turns down clemency request, says execution planned for Thursday will go forward

Indiana’s governor turned down a clemency request and says an execution planned for Thursday will go forward against a man who killed his girlfriend’s two children in 2010 Indiana's governor turned down a clemency request Monday and said an execution planned for this week would go forward for a man who set a fire that killed his girlfriend's two children in 2010. Gov. Mike Braun said he would follow the Indiana Parole Board's recommendation to let the death sentence stand for Jeffrey Weisheit. “The Indiana Department of Correction will continue preparations to carry out the court-ordered sentence of execution” Thursday, said Braun, a Republican.