Brandon Teena's killer loses bid for new trial

BY admin

July 11 2003 11:00 PM ET

Death row inmate John Lotter, convicted of killing three people, including Brandon Teena, whose death inspired the the critically acclaimed 1999 movie Boys Don't Cry about a woman who lived as a man in southeast Nebraska, will not get a new trial, the Nebraska supreme court said Friday.

As a result of the ruling, Lotter's death sentence will not be vacated. Nebraska's high court unanimously ruled that Lotter should not be sentenced to life in prison because of a 2002 ruling by the U.S. Supreme Court. In that case, out of Arizona, the nation's high court 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. Lotter was sentenced by a three-judge panel in 1996. The Nebraska supreme court said the other case did not affect Lotter because his convictions and sentences had become final prior to that decision. Lotter had argued that the U.S. Supreme Court decision should apply retroactively. The state supreme court disagreed.

Lotter claims that Marvin Nissen actually killed Teena and two witnesses in a farmhouse outside Humboldt on New Year's Eve, 1993. Lotter and Nissen were convicted of murdering Teena, who dated a female friend of the men's. Prosecutors said Teena was killed because he reported being raped by
the two men after they discovered the 21-year-old's biological gender. The men also killed Lisa Lambert, 24, and Philip DeVine, 22, who had witnessed Teena's death. Nissen, in a deal with prosecutors, testified against Lotter and was sentenced to life in prison. Lotter received three death sentences and awaits execution in Nebraska's electric chair.

Lotter has another appeal pending before the state supreme court, in which he argues that DNA tests would prove Nissen actually killed Teena. 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 with the electric chair as its sole means of execution.

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