Brandon Teena murderer wants DNA test

BY Advocate.com Editors

June 05 2003 11:00 PM ET

Nebraska death-row inmate John Lotter is claiming that DNA tests would prove he did not kill Brandon Teena, a transgendered man whose murder inspired the movie Boys Don't Cry. Lotter claims that his friend Marvin Nissen actually murdered Teena and two witnesses in a farmhouse outside Humboldt, Neb., on New Year's, Eve 1993. Lotter's attorney, Jerry Soucie of the Nebraska commission on public advocacy, was to ask the Nebraska supreme court on Thursday to order DNA testing on gloves Nissen wore the night of the murders. An earlier request was rejected by Richardson County district judge Daniel Bryan.

Nissen says that he stabbed Teena but that it was Lotter who shot him and the witnesses, 24-year-old Lisa Lambert and 22-year-old Philip DeVine. Lotter claims Nissen did the shooting. Nissen, in a deal with prosecutors, testified against Lotter and was sentenced to life in prison. Lotter received three death sentences.

Prosecutors said Teena, who was 21 at the time of his death, was killed because he accused the men of raping him after learning he was a biological woman.

The killings outraged gay activists and led to several documentaries and films, including the critically acclaimed 1999 movie Boys Don't Cry, which earned Hilary Swank an Academy Award for best actress for her portrayal of Teena.

Prosecutors say Lotter should have asked for DNA testing during his 1995 trial. However, Soucie argues that the type of DNA testing he wants was not available in 1995 and that DNA tests weren't deemed legal evidence in Nebraska until 1997. Soucie also said Lotter had no reason to seek DNA tests in 1995 because he didn't know that Nissen would be testifying against him until the trial started. Soucie made the request under the Nebraska DNA Testing Act, enacted in 2001, which provides state funding for such tests for indigent inmates. Lotter's appeal entails a legal broadside as an attempt to get him off death row.

In another pending appeal before the Nebraska high court, Lotter also argues that his trial judge erred by refusing to allow testimony about statements Nissen allegedly made to a cellmate, Jeff Haley. Haley allegedly has said that Nissen confessed to him that he had committed the murders, not Lotter.

Among other issues raised in the second appeal is the 2002 ruling by the U.S. Supreme Court in an Arizona case that said the Constitution guarantees a trial by a jury--and that right extends to weighing whether a killing merits a death sentence or life in prison. In other words, the court said that juries, not judges, must decide if aggravating circumstances exist to merit the death penalty.

In Nebraska, judges had made that determination since the legislature decided in the 1970s that there was the potential for bias by juries. The legislature changed the law after the ruling in the Arizona case.

Lotter also is asking the high court to declare the state's use of the electric chair as cruel and unusual punishment. Nebraska is the only state that uses the electric chair as its sole means of execution.

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