Originally published on Advocate.com September 27 2003 12:00 AM ET
Nebraska death row inmate John Lotter lost an appeal Friday seeking DNA tests he said would prove his innocence in the murder of Brandon Teena. The Nebraska supreme court rejected his request for testing, saying the results could not produce evidence that he was wrongly convicted or sentenced. Lotter was convicted of the murders that inspired the critically acclaimed 1999 movie Boys Don't Cry. One of the victims was Teena, who was born a woman named Teena Brandon but lived as a man in southeast Nebraska.
Lotter claims that his partner, Marvin Nissen, actually murdered Teena and two witnesses in a farmhouse outside Humboldt on New Year's Eve, 1993. Lotter's attorney, Jerry Soucie of the Nebraska Commission on Public Advocacy, had asked the Nebraska supreme court to order DNA testing on gloves Nissen wore the night of the murders.
Lotter claimed that Teena's blood or the presence of DNA from one or both of the other victims on Nissen's gloves, shoes, or clothing would establish that Nissen had not been where he testified he was at the time of the murder. Lotter also said the DNA tests would establish that Nissen lied during his testimony and that Nissen, not Lotter, was holding the gun at the time all three victims were killed.
Prosecutors had claimed that Lotter took Nissen's gloves after the killing and wrapped the gun and knife in them, meaning it would not be surprising if blood from all three victims was found on the gloves.
The high court, in its unanimous decision upholding Richardson County district judge Daniel Bryan's rejection of the request, said DNA tests could not determine how the blood was deposited on the items being tested. If it could not make that determination, the court said, the testing also could not establish that Nissen shot the victims. "DNA evidence is not a videotape of a crime," said Judge John Wright, writing for the court.