The Nebraska Supreme Court on Friday rejected a convicted killer's latest attempt to challenge the sentence that landed him on death row.Ìý
John Lotter's attorney had presented a two-pronged argument to the Supreme Court last year, arguing that a district court judge had ruled improperly in denying the 51-year-old an evidentiary hearing to consider whether his intellectual level should keep him from being executed.Ìý
"An evidentiary hearing is required in this case," attorney Rebecca Woodman argued in February 2021, railing against a district court's ruling that Lotter's relief claim of intellectual incompetency could not be considered because of time and procedural issues.Ìý
Lotter was sentenced to death for his role in the 1993 killings of Brandon Teena and two witnesses, Lisa Lambert and Philip DeVine. He has maintained his innocence in the killings at a Humboldt farmhouse. His co-defendant, Thomas Nissen, is serving life sentences for the part he played in the crimes.
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In a 41-page ruling issued Friday, the state's Supreme Court affirmed the lower court's decision on each of Woodman's arguments.
One portion of Lotter's latest motion revolved around what the court termed his "LB268" claim, referring to the 2015 bill passed by the Legislature ending the death penalty in Nebraska. That law was later repealed by a statewide ballot referendum in which more than 60% of voters opted to reinstate the death penalty.Ìý
Lotter's attorney posited that when the Legislature passed LB268, it effectively vacated his death sentence, so the subsequent repeal of the law amounted to a “re-imposition†of the sentences and violated his due process rights.Ìý
Relying on previous Nebraska Supreme Court cases that examined nearly identical arguments, the district court judge dispatched that claim as "meritless," a decision the Supreme Court again upheld Friday.
At the heart of Lotter's latest motion, though, was his attorney's argument that he was diagnosed as intellectually disabled in 2018 and therefore is ineligible for imposition of the death penalty under U.S. Supreme Court precedent.Ìý
Woodman, a lawyer at the Missouri-based nonprofit law firm Center For Death Penalty Litigation, argued that an expert who evaluated Lotter determined his full-scale IQ was 67 in 2018, which the expert said was “consistent with mild intellectual disability.â€
But neither the district court nor Supreme Court vetted the actual merits of that claim when the courts ruled on Lotter's motion, instead finding that "the claim was both procedurally barred and time barred under Nebraska postconviction law," according to Friday's order.Ìý
The law referenced in the ruling requires defendants to make postconviction relief claims within a year from any of five triggering events.Ìý
Lotter's attorney pointed to the 2018 evaluation as a triggering event for the appeal, originally filed in March of that year, arguing that Lotter could not have possibly sought relief before that point since "the factual predicate for his claim did not exist until he was diagnosed."Â Â
But, in its denial of that argument, the justices noted that evidence of Lotter's intellectual disability was mentioned during his trial more than 20 years ago.Ìý
The high court also pointed to Woodman's own admission that one of Lotter's prior attorneys had made an effort to raise an intellectual disability claim in the early 2000s but abandoned the effort.Ìý
"As such, we agree with the district court that Lotter could have discovered, through the exercise of due diligence, the factual predicate to support a constitutional claim of intellectual disability ... long before March 2018," the court said.ÌýÂ
The ruling clears the latest legal challenge to Lotter's death sentence, though his execution is far from guaranteed. The state has only executed one death row inmate in the last 25 years and, like other states, .Ìý
In 2018, the state executed Carey Dean Moore using a four-drug combination that until then hadn’t been used for that purpose. After public documents released after a court battle revealed Community Pharmacy Services in Gretna had obtained the drugs and sold them to the state, the company’s owner issued a statement saying it regretted the decision.
The Department of Correctional Services it was still pursuing execution drugs.Ìý