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  1. #1

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    John L. Lotter - Nebraska Death Row


    Brandon Teena/Teena Renae Brandon, Phillip DeVine & Lisa Lambert




    Summary of Offense:

    Convicted of killing Teena Brandon, Lisa Lambert and Philip DeVine near Humboldt in 1993.

  2. #2

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    September 23, 2007

    Nissen recants, says he killed Teena Brandon


    Tom Nissen says he shot and killed 3 people in a Humboldt farmhouse nearly 14 years ago, a stunning reversal of court testimony that put his former drinking buddy on death row.

    John Lotter wants a new trial on the grounds that Nissen lied on the stand.

    Lotter, 36, has maintained his innocence in the Dec. 31, 1993, killings, despite being convicted of three counts of first-degree murder. He has lived on death row for 11 years pending appeals.

    Separate juries found Lotter and Nissen guilty of killing Teena Brandon, a 21-year-old transgendered person from Lincoln who lived as a man; Lisa Lambert, 24, of Humboldt; and Phillip DeVine, 22, of Fairfield, Iowa.

    The case shocked Nebraska and inspired the 1999 film "Boys Don't Cry," which earned Hilary Swank an Academy Award for her portrayal of Brandon.

    Marvin Thomas "Tom" Nissen recanted his testimony in a 2-page affidavit he gave July 23 to an attorney representing Lotter in a federal court appeal.

    "The testimony I gave regarding the person who fired the gun was false," the affidavit says. "I am the person who shot and stabbed Teena Brandon. I am the person who shot Phillip DeVine. I am the person who shot Lisa Lambert.

    "I was in possession of the gun and fired all of the bullets that inflicted the gunshot wounds to those individuals."

    The affidavit is the primary exhibit in a motion asking for a new trial for Lotter. Lincoln attorney Paula Hutchinson filed the motion late Wednesday in Richardson County District Court in Falls City.

    "The case against John Lotter came from the lips of Tom Nissen. Now Nissen says everything he said at trial was a lie," Hutchinson said.

    The motion seeks a new trial or resentencing for Lotter, or "an order vacating and setting aside his conviction and sentence and granting him absolute discharge."

    Brandon's mother, JoAnn Brandon, was not happy to hear the news and said she hopes Lotter will not walk free as a result.

    "I think it's really sad," she said Wednesday evening. "I don't understand what Nissen is getting out of it."

    In a recent interview, Nissen described the affidavit as "true and correct." But the 35-year-old former Falls City man also said Lotter helped plan the killings and was at the rented farmhouse when they occurred.

    Under the law, a person complicit in murder can be held just as responsible as the person who takes a life.

    Nissen, who is serving three life sentences at the Lincoln Correctional Center, said his belief that the death penalty is unfair motivated his decision to recant.

    "There's somebody sitting on death row who doesn't deserve to be there," he said.

    Many people believe Nissen's testimony May 17, 1995, essentially put Lotter there. At the time, Nissen had been convicted of murder but was awaiting sentencing. He agreed to testify against Lotter, and prosecutors agreed not to seek the death penalty against Nissen.

    On the stand, Nissen admitted he stabbed Brandon but said Lotter had fired all of the shots from a stolen .380-caliber pistol.

    But suspicion has long existed that Nissen perjured himself.

    Over the years, three jailhouse snitches who shared cells with Nissen have claimed he admitted to a more prominent role in the killings. In a 2003 Journal Star interview, Nissen gave a coy response when asked if he pulled the trigger, saying "maybe some day I might tell exactly what happened. "

    During negotiations to obtain Nissen's testimony, prosectors wanted their star witness to take a lie detector test before taking the stand. Nissen refused, and prosecutors eventually dropped the request.

    James Elworth, now assistant director of the NCAA's Committees on Infractions in Indianapolis, was an assistant attorney general in the early 1990s and lead prosecutor in both cases. When contacted Wednesday, Elworth would only say he had no concern about the truthfulness of Nissen's 1995 testimony.

    It remains to be seen what effect, if any, Nissen's new version of events will have on Lotter's case.

    In the past, when Lotter appealed his conviction based upon the likelihood Nissen lied, judges dismissed the snitch statements as nothing more than hearsay. Nebraska Supreme Court judges even considered the possibility Nissen was the gunman when they rejected one of Lotter's appeals in 2002.

    "Lotter is a major participant in the case in either version," Judge Kenneth Stephan said.

    Now, Richardson County District Judge Daniel Bryan must consider whether to grant Lotter a new trial based upon Nissen's own words. A hearing to submit legal briefs and documentation should take place next month.

    Richardson County Attorney Doug Merz was not available for comment Wednesday.

    As for why Nissen decided to change his story, he initially said he didn't know, then he said, "I guess it just took me that long to come to terms with what I had done and who I am."

    Some might dismiss the latest account of the killings as another lie.

    Nissen said he can't control what others think, but he believes he has nothing to lose. He can't be tried for the same crime twice, he said, nor does he think prosecutors will find a legal avenue to have him resentenced.

    He agreed he could be charged with perjury, but such a conviction won't add to a prison term that's already for life.

    Josephine Potuto, law professor at the University of Nebraska-Lincoln, said that, hypothetically, prosecutors can take action against witnesses who recant their testimony. Often it depends upon terms of the agreement between prosecutors and witnesses and whether a conviction has been jeopardized.

    Nissen, who does not have an attorney representing him, also said he has nothing to gain by telling the truth now. Lotter did not ask him to recant, he said, adding that the men have had no conversations or correspondence since shortly after their arrests on that long-ago New Year's Eve.

    Back then, the two were young ex-cons with a zeal for hard drinking in Falls City, a Southeast Nebraska community of 4,700.

    In November 1993, Brandon, who had recently moved to Richardson County from Lincoln, fell into their circle of friends, dating a woman they both knew.

    Lotter and Nissen befriended Brandon, but their friendship abruptly ended when they learned about Brandon's biological gender. Angry over being duped, Nissen said, they assaulted, kidnapped and raped the 21-year-old Lincoln woman in the early morning hours of Christmas Day.

    The men soon learned Brandon had reported the rapes. According to Nissen's testimony, they killed Brandon to derail the rape investigation, and they killed Lambert and DeVine to eliminate witnesses to the murder.

    Lotter testified at his own trial, calling Nissen a liar and denying any involvement in planning or committing the murders.

    Since then, despite losing multiple appeals, he has maintained his innocence. What Nissen called rape Lotter has called consensual sex, albeit a failed attempt because he was too intoxicated to perform.

    If not for Nissen's testimony, Lotter believes he would be a free man.

    Even the 3 judges who sentenced Lotter to death in 1996 said Nissen's testimony clinched the conviction.

    As for Lotter's reaction to Nissen's affidavit, Hutchinson said "Mr. Lotter is relieved that he finally did tell the truth.

    (Source: AP)

  3. #3

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    September 5, 2009

    NE Supreme Court Upholds Death Sentence


    The Nebraska Supreme Court has upheld the conviction of John Lotter, who's on death row for the triple murder that inspired the 1999 film "Boys Don't Cry."

    Lotter has said the state used a threat of torture -- the electric chair -- to coerce his friend Thomas Nissen into lying about the murder of Teena Brandon and 2 others in southeast Nebraska.

    But in a ruling issued Friday, the high court rejected that argument.

    Lotter and Nissen were convicted of the 1993 murder of Brandon, a 21-year-old who lived briefly as a man and dated their female friend. The men also killed 2 others who witnessed Brandon's death in the farmhouse near Humboldt.

    "John Lotter is guilty of a triple homicide," says Nebraska Attorney General Jon Bruning. "He has repeatedly challenged his convictions and each time has failed. The court made clear today that nothing in Tom Nissen's recent affidavit, even if believed, alters Lotter's guilt of these crimes. We will continue to press for the enforcement of Lotter’s sentence."

    Lotter has maintained since his arrest that he is innocent.

    (source: WOWT News)

  4. #4

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    June 9, 2010

    Appeal Revived In 'Boys Don't Cry' Neb. Case


    Nebraska death-row inmate John Lotter has filed documents to support the federal appeal of his conviction in the triple murder that inspired the 1999 film "Boys Don't Cry."

    An appeal Lotter filed in U.S. District Court in May 2004 had been on hold while he pursued an appeal in state courts. The Nebraska Supreme Court upheld Lotter's conviction in September.

    U.S. Magistrate Judge Cheryl Zwart recently reopened the federal appeal, and Lotter filed documents Monday that moves the case forward.

    Lotter has maintained since his arrest that he is innocent.

    He claims that, among other things, the state used a threat of torture to coerce his friend Thomas Nissen into lying about the murder of Teena Brandon and 2 others in southeast Nebraska.

    Lotter and Nissen were convicted of the 1993 murder of Brandon, a 21-year-old who lived briefly as a man and dated their female friend. They also were convicted of killing Lisa Lambert, 24, and Philip DeVine, 22, who witnessed Brandon’s death in the farmhouse near Humboldt.

    Brandon had reported being raped by the 2 men. A former Richardson County sheriff was later criticized for his handling of the rape charges and for failing to offer protective custody.

    In a deal with prosecutors to avoid the death penalty, Nissen testified against Lotter, saying he stabbed Brandon but that Lotter fired the shots that killed the 3.

    Nissen was sentenced to life in prison.

    In July 2007, Nissen changed his story and said he, not Lotter, shot all 3.

    (source: Associated Press)

  5. #5
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    Inmate Personal Information

    DOB: 05/31/1971
    Race: White
    Gender: Male


    Crime and Trial Information

    * County of conviction: Richardson
    * Number of counts: Three
    * Race of Victims: White/White/Black
    * Gender of Victims:
    Female/Female/Male
    * Date of crime: 12/31/1993
    * Date of Sentencing: 02/21/1996


    Legal Status

    Current Proceedings:
    Habeas petition pending in D.
    Neb.


    Attorney

    Andre Barry
    Sean Brennan


    Court Opinions

    State v. Lotter, 586 N.W.2d 591 (Neb. 1998), modified, 587 N.W.2d
    673 (Neb. 1999), cert. denied, 526 U.S. 1162 (1999); State v. Lotter,
    664 N.W.2d 892 (Neb. 2003) (affirming denial of motion for postconviction
    relief, new trial, and writ of error coram nobis), cert.
    denied, 542 U.S. 939 (2004); State v. Lotter, 771 N.W.2d 551 (Neb.
    2009) (affirming denial of second petition for post‐conviction relief),
    cert. denied, 130 S.Ct. 1900 (2010).


    Legal Issues

    Issues:
    1. whether the co‐defendant's cellmate's account of recantation in
    post‐conviction proceedings was admissible,
    2. whether the co‐defendant could refuse to testify at PCR hearing
    under Fifth Amendment
    3. whether the trial judge's ex parte communications with prosecutor
    violated due process (prosecutor sought judge's assurance that Lotter's
    accomplice would receive a life sentence in exchange for his testimony
    against Lotter); and
    4. whether defendant was entitled to postconviction relief on claim of
    actual innocence based upon codefendant's recent recantation of trial

  6. #6
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    Judge dismissed federal appeal from Neb. death-row inmate who crime inspired 'Boys Don't Cry'

    Nebraska death-row inmate John Lotter has lost a federal appeal of his conviction in the triple murder that inspired the 1999 film "Boys Don't Cry."

    U.S. District Judge Richard Kopf ruled Friday that Lotter's case has been sufficiently scrutinized by the Nebraska courts and a federal review isn't warranted.

    Lotter filed the federal appeal in May 2004 but it had been on hold until last spring because of a pending state appeal. The Nebraska Supreme Court upheld Lotter's conviction in September 2009.

    Lotter has maintained since his arrest that he is innocent. He claims that, among other things, the state used a threat of torture to coerce his friend Thomas Nissen into lying about the murder of Teena Brandon and two others in southeast Nebraska.

    http://www.therepublic.com/view/stor...enalty-Lotter/

  7. #7
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    Judge won't reconsider appeal from Neb. death-row inmate whose crime inspired 'Boys Don't Cry'

    OMAHA, Neb. A federal judge has refused to reconsider his dismissal of an appeal filed by Nebraska death-row inmate John Lotter, who was convicted in the triple murder that inspired the 1999 film "Boys Don't Cry."

    U.S. District Judge Richard Kopf issued an order Monday denying Lotter's request to revisit the case. Kopf had dismissed the appeal last month, saying the case was sufficiently scrutinized by the Nebraska courts and a federal review wasn't warranted.

    Messages left Monday with Lotter's attorneys weren't immediately returned.

    Lotter was convicted in the 1993 slayings of Teena Brandon and two others in a farmhouse near Humboldt. Lotter has maintained he is innocent. He claims that, among other things, the state used a threat of torture to coerce his friend Thomas Nissen into lying about the killings.

    http://www.dailyjournal.net/view/sto...enalty-Lotter/

  8. #8
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    Neb. death-row inmate appeals to 8th Circuit

    Nebraska death-row inmate John Lotter is appealing his conviction in the triple murder that inspired the 1999 film "Boys Don't Cry" to the 8th U.S. Circuit Court of Appeals.

    Lotter's attorney filed notice of the appeal Wednesday in U.S. District Court in Lincoln.

    Lotter was convicted in the 1993 slayings of Teena Brandon and two others in a farmhouse near Humboldt. Lotter has maintained he is innocent. He claims that, among other things, the state used a threat of torture to coerce his friend Thomas Nissen into lying about the killings.

    Earlier this year, a federal judge denied Lotter's request to revisit the case. U.S. District Judge Richard Kopf said the case was sufficiently scrutinized by the Nebraska courts and a federal review wasn't warranted.

    Read more: http://www.ctpost.com/default/articl...#ixzz1NPZENYHC

  9. #9
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    Panel rejects Nebraska death row inmate's appeal

    OMAHA, Neb. (AP) Nebraska death-row inmate John Lotter's attempt to appeal his conviction in the triple murder that inspired the 1999 film "Boys Don't Cry" has been rejected by a federal appeals court.

    Lotter and co-defendant Thomas Nissen were convicted in the 1993 slayings of Teena Brandon, a 21-year-old who lived briefly as a man and dated a female friend of both suspects, and two friends who witnessed the killing in a rural farmhouse.

    Lotter claims, among other things, that investigators threated Nissen with torture to coerce him into saying Lotter fired the fatal gunshots. Nissen has since recanted.

    In a split decision, a three-judge panel of the 8th U.S. Circuit Court of Appeals rejected Lotter's claims. The single-paragraph ruling said the court dismissed the appeal after it "carefully reviewed the original file of the district court," but offered no details.

    The dissenting judge, U.S. Judge Kermit Bye, said he would have allowed the appeal based on several of Lotter's claims, including that prosecutors misrepresented whether they'd reached a plea deal with Nissen on the first day of Lotter's trial and left his attorney out of key meetings with Nissen's lawyer. Lotter, who has maintains his innocence, also argued that his post-conviction attorney was ineffective.

    Lotter's current attorney, Andre Barry of Lincoln, did not immediately respond to a message left Wednesday by The Associated Press. Lotter could appeal to the full appellate court.

    Nebraska Attorney General Jon Bruning said his office is pleased with the judgment.

    "Mr. Lotter is guilty of triple homicide and should be held accountable for those crimes," Bruning said.

    Along with Brandon's death, Lotter and Nissen were convicted of killing Lisa Lambert, 24, and Philip DeVine, 22, who witnessed Brandon's death in the farmhouse near Humboldt, about 80 miles southeast of Lincoln.

    Brandon had reported being raped by the two men. A former Richardson County sheriff was later criticized for his handling of the rape charges and for failing to offer Brandon protective custody.

    In a deal with prosecutors to avoid the death penalty, Nissen testified that he stabbed Brandon, but Lotter fired the shots that killed the three. Nissen was sentenced to life in prison.

    But in July 2007, he changed his story and said he, not Lotter, shot all three.

    Earlier this year, U.S. District Judge Richard Kopf dismissed Lotter's appeal, saying the case was sufficiently scrutinized by the Nebraska courts and a federal review wasn't warranted.

    http://www.chron.com/news/article/Pa...al-2139278.php

  10. #10
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    8th Circuit denies Lotter's request for rehearing

    The Eighth U.S. Circuit Court of Appeals has turned down Nebraska death row inmate John Lotter's request for rehearing.

    Lotter was appealing his conviction in the 1993 triple murder of Teena Brandon, Lisa Lambert and Philip DeVine at a rural Falls City farmhouse.

    The killings led to the 1999 film "Boys Don't Cry."

    Lotter has maintained his innocence. But he was convicted at trial after Thomas Nissen took a deal with prosecutors to avoid the death penalty and testified that he stabbed Brandon but Lotter fired the shots that killed all three.

    Nissen since has said that he, not Lotter, shot them.

    Lotter sought to file a federal appeal, but District Judge Richard Kopf dismissed it, saying federal review wasn't warranted.

    Lotter appealed to the Eighth Circuit.

    In a split decision Aug. 23, a three-judge panel rejected his appeal in a one paragraph order.

    U.S. Judges Roger Wollman of Sioux Falls, S.D., and Diana Murphy of Minneapolis said after carefully reviewing the original file the appeal should be dismissed.

    U.S. Judge Kermit Bye of Fargo, N.D., said he would have allowed Lotter's appeal to go forward on several of his claims, including that his trial lawyer was left out of key talks between the judge and prosecutor and that the prosecutor misrepresented whether it had reached a plea agreement with Nissen on the first day of trial.

    Lotter filed a petition asking the three-judge panel to rehear the case or for the full Eighth Circuit to reconsider the denial.

    But, in a two-sentence order Monday, the request was denied.

    Lotter's current attorney, Andre Barry, didn't return a call seeking comment.

    Read more: http://journalstar.com/news/local/cr...#ixzz1cP8ywTlK

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