The Nebraska Supreme Court on Friday rejected death row inmate John Lotter’s challenge to the state’s method of determining who gets the ultimate punishment. 

Lotter's appeal, based on a 2016 U.S. Supreme Court decision, Hurst v. Florida, wasn’t raised soon enough, the court found. The court added that, even if it had been, it wouldn’t apply retroactively to him.

Lotter, 47, was sentenced to death for the 1993 killings that inspired the movie “Boys Don’t Cry.”

At oral arguments last month, his attorney, Rebecca Woodman, said all of Nebraska's death sentences should be rendered unconstitutional because three-judge panels, not juries, ultimately made the decisions that put them on death row.

She argued that was at odds with the Hurst decision, in which the U.S. Supreme Court struck down Florida’s sentencing scheme because judges, not juries, decided whether a case was deserving of the death penalty.

The state argued that Lotter raised the issue too late for the district court or Nebraska Supreme Court to consider it.

Exactly one year after the Hurst decision, Lotter filed a motion for post-conviction relief raising the issue. But, Nebraska Solicitor General James Smith argued, the Nebraska Postconviction Act contains a one-year time limit from the date of his conviction, which had long passed, for filing that motion.

The district court agreed and denied his claim.

Lotter appealed to the state Supreme Court, arguing that the motion was filed within a year of the Hurst decision.

In Friday's 22-page opinion, Justice William Cassel wrote: “When the Legislature fixes the time for taking an appeal, the courts have no power to extend the time directly or indirectly.”

If Hurst announced a new rule of law, the deadline to file would be a year. But that’s not how Nebraska's court read it, Cassel said. He said that decision, rather, applied a 2002 U.S. Supreme Court case, Ring v. Arizona, to Florida’s sentencing scheme.

So the argument fails.

Cassel wrote that Lotter’s attorney and the American Civil Liberties Union, which sought to intervene in the case, both "read too much into Hurst."

He said that decision focused on a jury’s role in finding aggravating circumstances only, which they do in Nebraska. Cassel said most federal and state courts have agreed it didn’t say juries must find that aggravating circumstances outweigh mitigating circumstances, which a three-judge panel does here.

Lotter, now 47, was sentenced to death for his role in the 1993 killings of Brandon Teena and two witnesses, Lisa Lambert and Philip DeVine, at a Humboldt farmhouse. Lotter has maintained his innocence in the killings. His co-defendant, Thomas Nissen, is serving life sentences for the part he played in the crimes.

Nebraska's 12 death row inmates

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Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.



Lori Pilger is a public safety reporter.

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