John L. Lotter

JOHN L. LOTTER

Crime: 1993 murders of Teena Brandon, 21, Lisa Lambert, 24, and Phillip DeVine, 22, in a farmhouse near Humboldt; the story of the transgender Brandon was fictionalized in the film “Boys Don’t Cry.”

LINCOLN — 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 two weeks after Nebraska carried out its first 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.

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