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Thread: John L. Lotter - Nebraska Death Row

  1. #21
    Administrator Michael's Avatar
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    Thank god itīs unlikely that they can enhance the human gene-pool.
    No murder can be so cruel that there are not still useful imbeciles who do gloss over the murderer and apologize.

  2. #22
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    Two Decades After Brandon Teena's Murder, a Look Back at Falls City

    Eager to come to terms with his department's tragic mishandling of the rape that led to the murder on New Year's Eve in 1993, a small-town sheriff welcomes LGBT-sensitivity training.

    By Stephanie Fairyington
    The Atlantic

    Twenty years ago in a little Nebraskan town called Falls City, a handsome 21-year-old transman with big blue eyes was brutally beaten, raped and murdered in one of the most heinous hate crimes in American history.

    His name was Brandon Teena.

    Though his murder immediately made headlines, it was Kimberly Peirce’s film dramatization Boys Don’t Cry in 1999 that made Brandon’s story familiar to millions of Americans—and won Hilary Swank an Oscar for her moving portrayal of him.

    Brandon left his hometown of Lincoln, Nebraska, for Falls City at the age of 20, hoping to start a new life in a community where no one knew him. He started dating Lana Tisdel, and found a family of sorts in her inner circle of friends, including John Lotter and Marvin “Tom” Nissen. But upon discovering Brandon was a biological female, Lotter and Nissen became obsessed with proving Brandon’s anatomy to Lana, forcibly disrobing Brandon in a bathroom on Christmas Eve, and hours later, raping him. On New Years Eve, to prevent him from ever pressing charges, they killed Brandon and two bystanders.

    Today, Lotter remains on death row at Tecumseh State Correctional Institution, having been convicted of the killings with Nissen’s testimony. Nissen is serving three life sentences at the Lincoln Correctional Center. In 2007, he recanted his original testimony and now admits he murdered the three victims with Lotter as his accomplice.

    But another figure in this horrifying story remains free.

    On December 25, mere hours after being sexually assaulted, Brandon faced a demeaning and dehumanizing line of questioning from the Richardson County Sheriff, Charles Laux, when reporting his attackers. In a recent interview from her L.A. office, director Peirce called it “a third rape.”

    C: [A]fter he pulled your pants down and seen you was a girl, what did he do? Did he fondle you any?

    B: No.

    C: He didn't fondle you any, huh. Didn't that kind of amaze you?...Doesn't that kind of, ah, get your attention somehow that he would've put his hands in your pants and play with you a little bit?

    ...

    C: [Y]ou were all half-ass drunk....I can't believe that if he pulled your pants down and you are a female that he didn't stick his hand in you or his finger in you.

    B: Well, he didn't.

    C: I can't believe he didn't.

    ...

    C:...Did he have a hard on when he got back there or what?

    B: I don't know. I didn't look.

    C: You didn't look. Did he take a little time working it up, or what? Did you work it up for him?

    B: No, I didn't.

    C: You didn't work it up for him?

    B: No.

    C: Then you think he had it worked up on his own, or what?

    B: I guess so, I don't know.

    C: You don't know...Did, when he got in the back seat you were already spread out back there ready for him, waiting on him.

    B: No, I was sitting up when he got back there.

    ....

    C: And you had never had sex before?

    B: No.

    C: How old are you?

    B: 21.

    C: And if you're 21, you think you'd have, you'd have, trouble getting it in?

    ....

    C: Why do you run around with girls instead of, ah, guys being you are a girl yourself?

    B: Why do I what?

    C: Why do you run around with girls instead of guys being you're a girl yourself?

    B: I haven't the slightest idea.

    C: You haven't the slightest idea? You go around kissing other girls?....[T]he girls that don't know about you, thinks [sic] you are a guy. Do you kiss them?

    ....

    B: ...I have a sexual identity crisis.

    C: A what?

    B: I have a sexual identity crisis.

    C: You want to explain that?

    B: I don't know if I can even talk about it....


    I recently re-watched the 1998 documentary The Brandon Teena Story, which plays the real audio of this excruciating exchange at length, and it finally occurred to me why Laux seems the cruelest in this cast of characters: There's something particularly perverse about a man entrusted with the duty to protect choosing instead to hurt and humiliate. Peirce, who spent five-and-a-half-years researching and making the film, chose to underscore the disturbing and participatory nature of Laux's questions about the crime by playing out the rape scene in flashback with Swank's voiceover, as she gets grilled by Laux. When I recently spoke with Peirce, she noted “a level of provocation and pleasure [that Laux derived] out of making Brandon relive his own torture.”

    Despite ample evidence, Laux neglected to apprehend and charge Lotter and Nissen, giving them the opportunity to plan and execute Brandon's murder twenty years ago today on December 31, 1993. JoAnn Brandon, Brandon’s mother, was eventually awarded $5000 for wrongful death, $7000 for intentional infliction of emotional distress, $80,000 for “mental suffering” and $6,223.20 for funeral expenses.

    I wondered if the stain of Laux’s legacy still lingered in Falls City's Sheriff's Office, or if they'd made procedural efforts to improve their dealings with LGBT populations. After all, transgender rights and visibility have increased significantly since 1993.

    To find out how much progress has made its way to the Richardson County Sheriff's Office, I reached out to the current sheriff, Randy Houser, an affable 61-year-old from Omaha. I first asked Houser if he could get me in touch with Laux, wondering whether he has any regret about the way he handled things.

    “I'm pretty sure he will not speak with you,” Houser wrote in an email. He encouraged me, however, to give it a try. When my letter requesting an interview went unanswered, I called Laux's home in Dawson. “You know, you people are a pain in the ass!” he yelled, upon hearing why I was calling, and hung up.

    “That's 'our Charlie’!” Houser said. “He has rationalized his role to the point where he's blameless. I'm sure it's a defense mechanism.” Houser updated me on Laux's life since 1993. Just a few years after the tragedy, he was voted commissioner of Richardson County. When his term ended, he took a job as a corrections officer at the Nebraska State Penitentiary, where Lotter sits on death row. As recently as 2010, he even served on his community's Village Board. Now retired, he drives a school bus.

    That Laux could have garnered enough votes to hold any office—and cart children to school—surprised me. “Well,” Houser laughed, “these aren't exactly offices of high reward!”

    He joked that Falls City “is a few miles from the ends of the earth,” but assured me that he and his compatriots “are a lot more evolved than you might expect.” Many law enforcement officials at the time thought Laux's behavior was “appalling,” he said. “A series of bad decisions were made by the guy at the top and that won't be me if something like this happens again. Things are not the same.”

    Today, police vehicles are equipped with in-car videos and officers are outfitted with wireless microphones so they are monitored and held accountable for their actions. Also, basic law-enforcement training is an intense 16 weeks at the Nebraska Law Enforcement Training Center in Grand Island, where the curriculum includes a viewing and discussion of the The Brandon Teena Story and staged sexual-assault and domestic-violence scenarios between straight and gay couples.

    Not to justify his wrongdoing, but to partially explain Laux's ignorance, Houser told me that Laux's training was far inferior to what officers receive today: “Charlie was in his third 4-year term as sheriff in 1993. He was a cop for years prior to that. His basic training experience was probably in the late 70's or early 80's, when it lasted all of six weeks.”

    Today, Brandon Teena’s experience would be different, Houser said. Richardson County now has access to services from Project Response, a support advocacy group based out of Omaha and Lincoln that assists with domestic violence and sexual assault cases. “If there was strong evidence of witness intimidation or reprisal as there was in this case,” Houser explained, “we would link up with Project Response and that person would be put in a safe house, given a cell phone that can only dial 911 and their personal phone would be taken away from them so their perpetrators can't track them down.”

    “A rape,” he continued, “especially one involving kidnapping, physical assault and death threats was as rare then as it is today. The majority of our caseload is protection order violations, DUIs, driving under suspension and domestic violence. [A case like Brandon's] would be an emergency, a drop-everything situation—and it would probably be handed over to state patrol investigators, who have more resources.”

    Houser lives with his wife of 33 years, Julie, eight blocks from the courthouse. In modern-day Falls City—population 4,300—conservatism comes in the form of “mind your own business, live your own life,” he told me. While he's sure there are some gays in town, “they're not overt about it. There's not saying, 'I'm gay!'“

    I couldn't quite tell if he meant it approvingly—as if gays should avoid public displays of affection—or if he was just reporting. But that he could use some LGBT-awareness training is clear: He referred to Brandon as “she,” called being transgender a “lifestyle,” and suggested discrimination towards gay people was non-existent in Falls City.

    I asked, hypothetically, if he'd be willing to do a LGBT-sensitivity training session with PFLAG, a queer advocacy group founded in 1972 that has done significant law enforcement outreach in the past, as a way to acknowledge the mishandling of Brandon's case and firmly close that chapter on Falls City's history.

    “Oh absolutely!” he responded. “That goes without saying.”

    PFLAG was happy to help out when I explained the idea. Liz Owen, the communications director of PFLAG National in Washington D.C., arranged for Ellen James of the Omaha chapter to train Houser and his staff.

    “We have a training session scheduled on Jan 18th,” Houser wrote to me two weeks later. “I also invited our local police department and neighboring Sheriff to attend.”

    James, a lawyer with a transgender daughter, will be covering a lot of ground, according to Owen: “Basic education about the LGBT community—defining and explaining the differences in biology, gender identity, gender expression, and sexual orientation. She will also cover the terminology in the transgender community; facts about homeless youth and research on family acceptance; and best practices for officers in interacting with members of the transgender community.”

    “I was discussing the upcoming presentation with one of my deputies,” Houser wrote to me in one of our last email exchanges, “and he asked: 'What is the definition of a transgender person?' I struggled to define it, but I basically came to the conclusion that a transgender person is whatever they say they are.”

    It's a simple concept—honoring however people want to define themselves—but it requires a leap of imagination Lotter, Nissen and Laux couldn't make—and it would have made all the difference.

    http://www.theatlantic.com/national/...s-city/282738/

  3. #23
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    Judge allows new lawyers for Neb. death row inmate

    A federal judge has granted a motion by condemned Nebraska inmate John Lotter to have new attorneys appointed to represent him in his efforts to get off death row.

    U.S. District Judge Richard Kopf last week granted Lotter's request to appoint Rebecca Woodman and Jessica Sutton - both attorneys with the Death Penalty Litigation Clinic in Kansas City, Mo. - as his lawyers in all clemency and post-conviction proceedings, the Lincoln Journal Star reported (http://bit.ly/1eiP2xj ) Thursday.

    The approval came over the objection of the Nebraska Attorney General's office.

    Lotter and co-defendant Thomas Nissen were convicted in the 1993 slaying of Teena Brandon, a 21-year-old woman who lived briefly as a man, and 2 witnesses, Lisa Lambert and Philip DeVine, at a rural Humboldt farmhouse. The crime inspired the 1999 movie "Boys Don't Cry."

    At trial, Nissen testified against Lotter as part of a deal with prosecutors, saying he stabbed Brandon while Lotter fired the shots that killed all 3.

    Nissen got a life sentence, and in 1996 Lotter was sentenced to death.

    Nissen has since changed his story and said he, not Lotter, shot all 3. Lotter appealed, but his appeals were rejected by the Nebraska Supreme Court, the U.S. District Court of Nebraska and the Eighth U.S. Circuit Court of Appeals. His case has been closed since 2012.

    In December, Lotter asked that Woodman and Sutton be appointed to represent him. Within days, Senior Assistant Nebraska Attorney General J. Kirk Brown opposed the motion, saying "nothing is going on" in Lotter's case that would require him to need attorneys.

    Brown wrote that the state has not yet sought, and the Nebraska Supreme Court has not yet ordered, enforcement of Lotter's death sentence.

    "Lotter is simply sitting," Brown wrote.

    Kopf's order granting the appointment of Lotter's new attorneys will terminate automatically in one year unless a judge extends it.

    (Source: The Associated Press)
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  4. #24
    Administrator Moh's Avatar
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    AG to judge: Lotter's death sentence remains in effect

    By Lori Pilger
    The Lincoln Journal Star

    The Nebraska Attorney General's office argued in court records Thursday that John Lotter's death sentence remains in effect, calling the Legislature's death penalty repeal vote an "unconstitutional power grab."

    On the heels of the vote to override Gov. Pete Rickett's veto, Attorney General Doug Peterson said he intended to seek a court decision "to definitively resolve the issue of the state's authority to carry out the death sentences previously ordered by Nebraska's courts" for the 10 inmates on death row, including Lotter.

    That hasn't happened yet, but Peterson's office raised the issue -- at least tangentially -- in a brief filed Thursday in U.S. District Court in Lincoln over whether Senior Judge Richard Kopf should extend the court appointment of two attorneys to represent Lotter on clemency issues.

    Assistant Nebraska Attorney General James Smith argued that Lotter, who is on death row at Tecumseh State Correctional Institution for the triple killings that inspired the 1999 film "Boys Don't Cry," remains sentenced to death.

    "Nebraska's recent statutory effort to repeal the death penalty does not change the fact of Lotter's death sentence," he wrote.

    Kopf appointed Rebecca Woodman and Carol Camp of the Death Penalty Litigation Clinic in Kansas City to represent Lotter in clemency and ancillary proceedings. The appointment was to expire on Jan. 22, but Woodman and Camp sought an extension, saying their investigation "has thus far uncovered potentially meritorious claims of Mr. Lotter that were raised either inadequately or not at all."

    Woodman wrote that they had an obligation to consider all legal claims potentially available and to thoroughly investigate the basis for potential claims before reaching a conclusion as to whether it should be asserted.

    She declined to comment on Thursday.

    Smith opposed the initial appointment of the two attorneys.

    But on Thursday, he argued that Kopf has the authority to extend it, saying Lotter still faces a death sentence because the Legislature violated the Nebraska Constitution when it passed the bill (LB268) on May 27 to repeal the death penalty and change any current death sentences to life imprisonment.

    Only the state Board of Pardons has the authority to commute a final death sentence, he said.

    But Omaha Sen. Ernie Chambers has said the bill does not apply retroactively to current death row inmates. Rather, he has said, it only removes the means to carry out executions.

    Intent language in the death penalty repeal law says: "It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment."

    Intent language in bills has no legal effect, Chambers said, but simply declares the desire or wish of the Legislature.

    In a letter to Peterson last month, Chambers said he knows the Legislature lacks power to alter sentences and that only the Pardons Board has that authority.

    "It is not an unconstitutional directive to the Pardons Board," Chambers said.

    Because the Legislature cannot modify a sentence, the bill amounts to a reprieve because the sentence cannot be carried out, he said.

    Even if lawmakers validly repealed the state's method of execution, Smith argued, Lotter's final death sentence remains in effect.

    "And, if the act was an unconstitutional power grab by the Nebraska Legislature to reduce final death sentences, Lotter's death penalty remains in effect by reason of the act being unconstitutional under Nebraska law," he wrote.

    While he earlier opposed appointment of counsel in federal matters, Smith argues in the brief filed Thursday that Kopf has the authority to appoint it for Lotter, but only on clemency proceedings. Kopf previously found that to be "the only justifiable reason for appointing federal counsel in this matter" because Lotter had exhausted all other remedies.

    In a brief filed later Thursday, Woodman argued that legislators' intent was clear that the repeal be retroactive and, therefore, if the law becomes effective and the intent of the Legislature is carried out, the matter may become moot.

    Further, she argued that it was within the Legislature's power to repeal the statute defining first-degree murder as a Class I felony punishable by death.

    "In doing so, the Nebraska Legislature has appropriately and legitimately declared the law and public policy of the Nebraska criminal justice system, and determined that the penological purpose of punishment for first-degree murder is sufficiently achieved by serving a sentence of life imprisonment," Woodman wrote.

    It is also within lawmakers' power to declare their intent on whether it should apply retroactively, which they did, she said.

    Woodman said any execution in Nebraska after repeal would constitute cruel and unusual punishment because the repeal "clearly indicates that 'evolving standards of decency' no longer tolerate executions in the state."

    She said as long as the effect of abolition of the death penalty in Nebraska remains uncertain, she and Camp should be allowed to continue to represent Lotter.

    "... It is clear that the Nebraska Governor will attempt to execute him until the courts say he may not. Whatever steps the Governor may take, Mr. Lotter's execution would be unconstitutional under both the U.S. and Nebraska Constitutions," Woodman wrote.

    Lotter was convicted in the 1993 deaths of Teena Brandon, Lisa Lambert and Philip DeVine at a rural Humboldt farmhouse.

    At trial, Thomas Nissen testified against Lotter as part of a deal with prosecutors, saying he stabbed Brandon but Lotter fired the shots that killed all three.

    Nissen got a life sentence. In 1996, a three-judge panel sentenced Lotter to death.

    Nissen since has changed his story and said he, not Lotter, fired the fatal shots. Lotter appealed, but his appeals were rejected by the Nebraska Supreme Court, the U.S. District Court of Nebraska and the Eighth U.S. Circuit Court of Appeals.

    http://journalstar.com/news/local/91...f14926622.html

  5. #25
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    Attorneys debate Nebraska death row inmate's legal options

    Attorneys for a Nebraska death row inmate say the state's recent struggle over capital punishment has raised new legal questions that they need to explore, while a state attorney says the prisoner has exhausted all options except for clemency.

    Attorneys for John Lotter said in federal court Tuesday that there are unanswered legal questions stemming from the Legislature's vote to abolish capital punishment, a subsequent ballot measure to reinstate it and the governor's efforts to obtain lethal injection drugs.

    Lotter and co-defendant Thomas Nissen were convicted in the 1993 slaying of Teena Brandon, a 21-year-old woman who lived briefly as a man, and two witnesses, Lisa Lambert and Philip DeVine, at a rural Humboldt farmhouse. The crime inspired the 1999 movie "Boys Don't Cry."

    At trial, Nissen testified against Lotter as part of a deal with prosecutors, saying he stabbed Brandon while Lotter fired the shots that killed all three.

    Nissen got a life sentence, and in 1996 Lotter was sentenced to death.

    Nissen has since changed his story and said he, not Lotter, shot all three. Lotter appealed, but his appeals were rejected by the Nebraska Supreme Court, the U.S. District Court of Nebraska and the Eighth U.S. Circuit Court of Appeals.

    The arguments on Tuesday came during a hearing over whether Lotter, 44, should be allowed to keep his court-appointed attorneys for anything other than a request for clemency. Lotter was convicted in a state district court but filed a legal challenge in federal court arguing that his sentence was unlawful. U.S. Senior District Judge Richard Kopf previously ruled that Lotter had exhausted all other legal remedies.

    "He has significant potential claims that he has to investigate before he can present them," said Lotter's attorney, Rebecca Woodman of the Kansas City-based Death Penalty Litigation Clinic.

    Woodman declined to elaborate after the hearing, but said the repeal law creates new legal uncertainty in Lotter's case.

    "Time will tell as to what issues might arise," she said.

    Woodman argued in court that Gov. Pete Ricketts' efforts to obtain lethal injection drugs from a supplier in India are illegal. The U.S. Food and Drug Administration has said it won't allow state officials to import two required drugs, for which the state paid $54,400. Ricketts has said his administration is still working with the federal government to bring the drugs to Nebraska.

    Assistant Nebraska Attorney General James Smith said the state believes that Lotter has run out of all options except to request clemency, and that his death sentence remains in effect.

    Nebraska lawmakers voted in May to abolish the death penalty over Ricketts' veto, triggering a ballot drive to place the issue before voters in 2016. The group Nebraskans for the Death Penalty announced last month that it had collected nearly 167,000 signatures, which are now being verified to confirm whether the issue will appear on the November 2016 ballot.

    At least 57,000 signatures are needed to place the issue on the ballot, but nearly 114,000 are required to prevent the repeal law from going into effect before the election.

    http://www.ivpressonline.com/news/na...0342e1542.html
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  6. #26
    Senior Member CnCP Legend Mike's Avatar
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    AG: 3 inmates likely first in line for death penalty

    Three Nebraska death row inmates, Carey Dean Moore, Jose Sandoval and John Lotter, have exhausted their state and federal appeals, according to Attorney General Doug Peterson, and could be first in line to have execution dates set.

    Lotter, 45, was convicted on three counts of first-degree murder in Richardson County, one targeted because she was transgender. He has been on death row 20 years.

    Peterson would not speculate on when an execution might take place. Some other attorneys have said it could take years to schedule one.

    A public hearing on the new death penalty protocol proposal, which was unveiled three weeks after voters overwhelmingly reversed the Legislature's repeal of the death penalty, is set for Dec. 30.

    "This is just a process," Peterson said. "Whenever regulations are adopted, they have to go through the administrative process of having a hearing."

    Once the steps are complied with, it becomes the protocol of the Corrections Department, he said.

    http://journalstar.com/news/state-an...74d2a7e55.html
    "There is a point in the history of a society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly. Punishing somehow seems unfair to it, and it is certain that imagining ‘punishment’ and ‘being supposed to punish’ hurts it, arouses fear in it." Friedrich Nietzsche

  7. #27
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    John Lotter files appeal over state’s use of judges to weigh death sentence

    John Lotter has joined a fellow death row inmate in lodging a challenge to Nebraska’s three-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 three-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 second 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 three-judge panel is convened to determine whether they outweigh any mitigating factors in the defendant’s favor. The three 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.

    http://www.omaha.com/news/crime/john...acce9251b.html
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  8. #28
    Administrator Moh's Avatar
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    State says Lotter's federal case should be dismissed

    BY LORI PILGER
    The Lincoln Journal-Star

    An attorney for the state argued Tuesday that a federal judge should dismiss, not stay, a petition filed by John Lotter challenging the murder conviction that put him on Nebraska's death row.

    Last month, Lotter, who was convicted in the case that inspired the 1999 movie "Boys Don't Cry," asked Senior U.S. District Judge Richard Kopf to stay his case so he can raise the issues over the state's method for determining death sentences in state court first.

    But in a brief filed Tuesday afternoon, Nebraska Assistant Attorney General James Smith said no stay should be granted because Lotter hasn't gotten the OK from the Eighth Circuit Court of Appeals to file his petition.

    "Thus, it should be dismissed," Smith wrote.

    Lotter already has challenged his conviction in federal court and lost, so he must get permission to pursue any further challenges.

    He could be first in line for an execution warrant if he is found to have exhausted his appeals.

    Lotter's attorneys are seeking to avoid that by raising these two claims.

    * That a 2016 U.S. Supreme Court decision invalidates Lotter's sentence because judges, not a jury, ultimately decided whether he should be sentenced to death in 1996.

    * That it violated Lotter's rights to have a death-qualified jury, meaning jurors weren't categorically opposed to capital punishment or of the belief that the death penalty should be imposed in all cases of capital murder.

    Lotter's attorneys at the Death Penalty Litigation Clinic in Kansas City, Missouri, argue that these are new claims. But Smith suggested both have been raised and rejected and that a stay would simply "prolong further meaningless collateral attacks."

    Plus, he said, under well-established Nebraska law, Lotter cannot seek review of a claim he hasn't raised previously.

    In an order last month, Kopf said the case would not progress until he has ruled on the motion for a stay and asked the state to submit a brief regarding its position on it.

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

    http://journalstar.com/news/state-an...884829c24.html

  9. #29
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    Judge calls Lotter's petition a hail Mary, denies it

    By LORI PILGER
    The Lincoln Journal-Star

    A federal judge Friday denied a Nebraska death-row inmate's petition challenging his murder conviction, likening it to a desperate attempt by his attorneys.

    "While a 'hail Mary' may work in football, it does not here," Senior U.S. District Judge Richard Kopf wrote in John Lotter's case.

    Last month, Lotter, who was convicted in the killing that inspired the 1999 movie "Boys Don't Cry," asked Kopf to stay his case so he can raise the issues over the state's method for determining death sentences in state court first.

    A motion for postconviction relief has been raised in Richardson County District Court and is set for hearing next month.

    Earlier this week, the Nebraska Attorney General's office filed a brief in the federal case arguing against the motion for a stay and asking Kopf to deny Lotter's habeas petition.

    On Friday, Kopf agreed, in part because Lotter's attorneys with the Death Penalty Litigation Clinic in Kansas City, Missouri, didn't get permission to file it from the Eighth Circuit Court of Appeals, as required.

    Lotter could be first in line for an execution warrant if he is found to have exhausted his appeals. In an effort to avoid that, his attorneys are seeking to raise two claims.

    * That a 2016 U.S. Supreme Court decision invalidates Lotter's sentence because judges, not a jury, ultimately decided whether he should be sentenced to death in 1996.

    * That it violated Lotter's rights to have a death-qualified jury, meaning jurors weren't categorically opposed to capital punishment or of the belief that the death penalty should be imposed in all cases of capital murder.

    Kopf said in Friday's order that it plainly appears from the petition and exhibits that Lotter isn't entitled to relief.

    "In short, I have ruled against him once previously on essentially the same grounds, and Lotter must have, but has not obtained, permission of the Court of Appeals for a second bite of the apple," he said of the first claim.

    On the second claim, Kopf said Lotter never raised it on direct appeal, any of his four postconviction motions filed in state court or in the previous federal court petition.

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

    http://journalstar.com/news/state-an...f92248d4d.html

  10. #30
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    Death-row inmate John Lotter denied in latest appeal

    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 transgender and lived as a man, 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.

    http://www.omaha.com/news/crime/deat...f84b3817a.html
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    "They will hurt you. They will hurt your grandma, these people. The root cause of this is there's no discipline in the homes, they don't go to school, you know, they live off the government, no personal accountability, and they just beat people up for no reason, and it's disgusting." - Former Hamilton County Prosecutor Joe Deters

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