The United States Supreme Court this week declined to take John Lotter's death penalty appeal, potentially putting him a step closer to being executed for the triple murder that inspired the 1999 movie "Boys Don't Cry."
Lotter's attorney, Shawn Nolan of the Federal Community Defender Office in Philadelphia, had argued that his case would be an excellent vehicle for the court to resolve whether recent decisions in capital cases addressing intellectual disabilities should be applied retroactively.
Nolan said lower courts have diverged and reached three answers.
"Now is the time to answer the question presented. Every time it arises, it can mean the difference between an execution and life imprisonment without the possibility of parole," he wrote.
Lotter was sentenced to death for the 1993 killings of Brandon Teena, a 21-year-old transgender male, to silence him after he was raped, and Lisa Lambert, 24, and Phillip DeVine, 22, who had witnessed his killing at a Humboldt farmhouse.
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Lotter, 51, has maintained his innocence.
Thomas Marvin Nissen, his co-defendant, is serving life sentences for his role in the killings.
Last year, Lotter was denied an evidentiary hearing where his attorney could provide evidence of his intellectual disability and ineligibility to be executed, despite being diagnosed with an intellectual disability under current medical guidelines.
His attorney wanted to present evidence that an expert who evaluated Lotter determined his full-scale IQ was 67 in 2017, “consistent with mild intellectual disability,†but wasn't allowed.
In July, the Nebraska Supreme Court upheld the district court ruling, and Lotter appealed.Â
At issue were three U.S. Supreme Court decisions: a Virginia case in 2002Â where the court prohibited executing people with intellectual disability but left to the states how to determine it; a Florida case in 2014 where the court said a state couldn't set an IQ of 70 as a limit; and a Texas case in 2017 that said states must adhere to "clinical standards" that focus on adaptive deficits.
In a brief to the U.S. Supreme Court, Senior Assistant Nebraska Attorney General James Smith said in the 23 years since he was found guilty of three counts of first-degree murder, Lotter "has pursued a smorgasbord of unsuccessful Nebraska state and federal court collateral challenges to his judgment."
The latest was his fifth postconviction proceeding under the state's Postconviction Act. He also has filed two unsuccessful federal cases, as well as several other unsuccessful attacks on his convictions and sentences.
In his brief, Smith cited a 2011 decision by now-retired U.S. District Judge Richard G. Kopf, who said: "Legally speaking, if Nebraska carries out the sentence, there need be no 'second thoughts.'"
Smith said despite the 2002 U.S. Supreme Court decision — and a Nebraska law dating back to 1998 barring the death penalty for those who are intellectually disabled — Lotter did not claim to be intellectually disabled in any of his four previous postconviction motions.
"His claim is long since procedurally barred as well as time barred," he said.
In the early 2000s, one of Lotter's previous attorneys made an effort to raise an intellectual disability claim but abandoned the effort.
The U.S. Supreme Court denial was issued in an order Monday with no elaboration.
Every year, the Supreme Court accepts 100 to 150 of the more than 7,000 requests for review, according to the court's website.
On Wednesday, Suzanne Gage, a spokeswoman for Nebraska Attorney General Mike Hilgers, said Hilgers appreciates that the United States Supreme Court has rejected Lotter’s latest challenge to his death sentence.
"The state will continue to defend any future challenges to Lotter’s death sentence," she said.
It wasn't immediately clear if Lotter has exhausted his appeals or how close a potential execution may be. Nolan didn't respond to a request for comment.
Dawn-Renee Smith, interim chief of staff for the Nebraska Department of Correctional Services, said they are not currently in possession of lethal injection chemicals.
She declined to say what efforts, if any, they are making to obtain them.
Since 1976, when a U.S. Supreme Court ruling ended a four-year de facto moratorium on the death penalty, Nebraska has executed four inmates, and, like other states, .
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.