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Attorneys debate Neb. death row inmate’s legal options

Attorneys for John Lotter said in federal court Tuesday that there are unanswered legal questions

By Grant Schulte
Associated Press

LINCOLN, Neb. — 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.

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