Teena murderer asks for death sentence to be vacated

By Advocate.com Editors

Originally published on Advocate.com December 05 2002 12:00 AM ET

John Lotter, who is on Nebraska's death row for the murder of Brandon Teena, is asking that his sentence be commuted to life in prison because of a recent U.S. Supreme Court ruling. The Nebraska supreme court was to hear Lotter's appeal Wednesday; the appeal entails a legal broadside attempting to get him off death row. Among the issues raised by Lotter is a June ruling by the U.S. Supreme Court that said the Constitution guarantees a trial by a jury--and that that right extends to weighing whether a killing merits a death sentence or life in prison. In other words, the high court said that juries, not judges, must decide if aggravating circumstances exist to merit the death penalty.

In Nebraska, judges have been making that determination since the legislature decided in the 1970s that there was the potential of bias by juries. Aggravating circumstances include factors such as whether a murder was especially heinous, cruel, or depraved or whether it was committed for monetary gain. It was the Supreme Court's ruling that prompted Nebraska governor Mike Johanns to call the legislature into a special session last month, during which lawmakers changed state law to have juries determine whether aggravating factors exist.

Lotter, 31, also is asking the high court to declare the state's use of the electric chair cruel and unusual punishment. Nebraska is the only state with the electric chair as its sole means of execution. Lawmakers have been unable to pass a bill changing Nebraska's method of execution to lethal injection, including one measure that was killed during last month's special session.

Lotter and Marvin T. Nissen were convicted of the 1993 murder of transgendered 21-year-old Brandon Teena. Prosecutors said Teena had been killed because he accused Lotter and Nissen of raping him after they learned he was a biological female. The men also killed Lisa Lambert, 24, and Philip DeVine, 22, who had witnessed Teena's death in a rural Humboldt farmhouse. The killings were the subject of the critically acclaimed 1999 movie Boys Don't Cry.