The Nebraska Attorney General's office argued in court records Thursday that John Lotter's death sentence remains in effect, calling the Legislature's death penalty repeal vote an "unconstitutional power grab."
On the heels of the vote to override Gov. Pete Rickett's veto, Attorney General Doug Peterson said he intended to seek a court decision "to definitively resolve the issue of the state's authority to carry out the death sentences previously ordered by Nebraska's courts" for the 10 inmates on death row, including Lotter.
That hasn't happened yet, but Peterson's office raised the issue -- at least tangentially -- in a brief filed Thursday in U.S. District Court in Lincoln over whether Senior Judge Richard Kopf should extend the court appointment of two attorneys to represent Lotter on clemency issues.
Assistant Nebraska Attorney General James Smith argued that Lotter, who is on death row at Tecumseh State Correctional Institution for the triple killings that inspired the 1999 film "Boys Don't Cry," remains sentenced to death.
"Nebraska's recent statutory effort to repeal the death penalty does not change the fact of Lotter's death sentence," he wrote.
Kopf appointed Rebecca Woodman and Carol Camp of the Death Penalty Litigation Clinic in Kansas City to represent Lotter in clemency and ancillary proceedings. The appointment was to expire on Jan. 22, but Woodman and Camp sought an extension, saying their investigation "has thus far uncovered potentially meritorious claims of Mr. Lotter that were raised either inadequately or not at all."
Woodman wrote that they had an obligation to consider all legal claims potentially available and to thoroughly investigate the basis for potential claims before reaching a conclusion as to whether it should be asserted.
She declined to comment on Thursday.
Smith opposed the initial appointment of the two attorneys.
But on Thursday, he argued that Kopf has the authority to extend it, saying Lotter still faces a death sentence because the Legislature violated the Nebraska Constitution when it passed the bill (LB268) on May 27 to repeal the death penalty and change any current death sentences to life imprisonment.
Only the state Board of Pardons has the authority to commute a final death sentence, he said.
But Omaha Sen. Ernie Chambers has said the bill does not apply retroactively to current death row inmates. Rather, he has said, it only removes the means to carry out executions.
Intent language in the death penalty repeal law says: "It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment."
Intent language in bills has no legal effect, Chambers said, but simply declares the desire or wish of the Legislature.
In a letter to Peterson last month, Chambers said he knows the Legislature lacks power to alter sentences and that only the Pardons Board has that authority.
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"It is not an unconstitutional directive to the Pardons Board," Chambers said.
Because the Legislature cannot modify a sentence, the bill amounts to a reprieve because the sentence cannot be carried out, he said.
Even if lawmakers validly repealed the state's method of execution, Smith argued, Lotter's final death sentence remains in effect.
"And, if the act was an unconstitutional power grab by the Nebraska Legislature to reduce final death sentences, Lotter's death penalty remains in effect by reason of the act being unconstitutional under Nebraska law," he wrote.
While he earlier opposed appointment of counsel in federal matters, Smith argues in the brief filed Thursday that Kopf has the authority to appoint it for Lotter, but only on clemency proceedings. Kopf previously found that to be "the only justifiable reason for appointing federal counsel in this matter" because Lotter had exhausted all other remedies.
In a brief filed later Thursday, Woodman argued that legislators' intent was clear that the repeal be retroactive and, therefore, if the law becomes effective and the intent of the Legislature is carried out, the matter may become moot.
Further, she argued that it was within the Legislature's power to repeal the statute defining first-degree murder as a Class I felony punishable by death.
"In doing so, the Nebraska Legislature has appropriately and legitimately declared the law and public policy of the Nebraska criminal justice system, and determined that the penological purpose of punishment for first-degree murder is sufficiently achieved by serving a sentence of life imprisonment," Woodman wrote.
It is also within lawmakers' power to declare their intent on whether it should apply retroactively, which they did, she said.
Woodman said any execution in Nebraska after repeal would constitute cruel and unusual punishment because the repeal "clearly indicates that 'evolving standards of decency' no longer tolerate executions in the state."
She said as long as the effect of abolition of the death penalty in Nebraska remains uncertain, she and Camp should be allowed to continue to represent Lotter.
"... It is clear that the Nebraska Governor will attempt to execute him until the courts say he may not. Whatever steps the Governor may take, Mr. Lotter's execution would be unconstitutional under both the U.S. and Nebraska Constitutions," Woodman wrote.
Lotter was convicted in the 1993 deaths of Teena Brandon, Lisa Lambert and Philip DeVine at a rural Humboldt farmhouse.
At trial, Thomas Nissen testified against Lotter as part of a deal with prosecutors, saying he stabbed Brandon but Lotter fired the shots that killed all three.
Nissen got a life sentence. In 1996, a three-judge panel sentenced Lotter to death.
Nissen since has changed his story and said he, not Lotter, fired the fatal shots. Lotter appealed, but his appeals were rejected by the Nebraska Supreme Court, the U.S. District Court of Nebraska and the Eighth U.S. Circuit Court of Appeals.