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Nebraska Supreme Court Dismisses Latest John Lotter Death Sentence Challenge | Crime

The Nebraska Supreme Court on Friday rejected a convicted murderer’s latest attempt to challenge the sentence that landed him on death row.

John Lotter’s lawyer had made a two-pronged argument in the Supreme Court last year, arguing that a district court judge wrongly ruled in denying the 51-year-old an evidentiary hearing to determine if his intellectual level should prevent him from being executed.



“An evidentiary hearing is necessary in this case,” attorney Rebecca Woodman argued in February 2021, railing against a district court’s ruling that Lotter’s claim for intellectual incompetence could not be considered due to time and procedural issues.

Lotter was sentenced to death for his role in the 1993 murders of Brandon Teena and two witnesses, Lisa Lambert and Philip DeVine. He maintained his innocence in the Humboldt Farm murders. His co-defendant, Thomas Nissen, is serving a life sentence for his role in the crimes.

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In a 41-page decision released Friday, the state Supreme Court upheld the lower court’s ruling on each of Woodman’s arguments.

Part of Lotter’s latest petition revolved around what the court called his “LB268” petition, referring to the 2015 bill passed by the Legislature ending the death penalty in Nebraska. This law was later repealed by a statewide referendum in which more than 60% of voters chose to reinstate the death penalty.

Lotter’s attorney posited that when the Legislature passed LB268, it effectively overturned his death sentence, so the subsequent repeal of the law amounted to a “reimposition” of sentences and violated his due process rights. .

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Relying on previous Nebraska Supreme Court cases that considered nearly identical arguments, the district court judge called the request “without merit,” a decision the Supreme Court again upheld on Friday.

At the heart of Lotter’s latest petition, however, was his lawyer’s argument that he had been diagnosed as intellectually disabled in 2018 and therefore was not eligible for the imposition of the death penalty under the precedent. of the United States Supreme Court.

Woodman, an attorney with the Missouri-based nonprofit Center For Death Penalty Litigation, argued that an expert who assessed Lotter determined that his full-scale IQ was 67 in 2018, which , according to the expert, was “compatible with mild intellectual disability”.

But neither the District Court nor the Supreme Court considered the actual merits of that claim when the courts ruled on Lotter’s motion, finding instead that “the claim was both procedurally barred and in time under Nebraska post-conviction law,” according to Friday’s order.

The law cited in the ruling requires defendants to file post-conviction relief claims within one year of any of the five triggering events.

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Lotter’s attorney pointed to the 2018 valuation as a triggering event for the appeal, originally filed in March of that year, arguing that Lotter could not have sought relief before that time since “the factual predicate of his claim did not exist before he was diagnosed”. .”

But, in his denial of that argument, the judges noted that evidence of Lotter’s intellectual disability was mentioned during his trial more than 20 years ago.

The high court also pointed to Woodman’s own admission that one of Lotter’s previous lawyers made an effort to file a developmental disability claim in the early 2000s, but abandoned the effort.

“As such, we agree with the district court that Lotter could have discovered, through the exercise of due diligence, the factual predicate in support of a constitutional claim of intellectual disability. … well before March 2018,” the court said.

The ruling clears the latest legal challenge to Lotter’s death sentence, though his execution is far from guaranteed. The state has executed only one death row inmate in the past 25 years and, like other states, has struggled to acquire the combination of drugs needed for lethal injections.

In 2018, the state executed Carey Dean Moore using a four-drug combination that until then had not been used for this purpose. After public documents released after a court battle revealed that Gretna Community Pharmacy Services obtained the drugs and sold them to the state, the company owner released a statement regretting the decision.

The Department of Corrections said last year it was still prosecuting execution drugs.

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