The Nebraska Supreme Court heard oral arguments Thursday on whether Nebraska's death penalty sentencing system is constitutional because it gives three-judge panels the final say in capital murder cases.
Death row inmate John Lotter's attorney, Rebecca Woodman, argued that because Nebraska's system requires judges, not juries, to make critical conclusions on facts necessary to impose a death sentence, and doesn't require proof of those facts, it violates the Sixth and 14th amendments.
That includes whether aggravating circumstances are sufficient for death, and outweigh the mitigating circumstances.
Nebraska juries do not decide both aggravating and mitigating circumstances in capital cases.
"At the outset, I'd like to repeat something that this court has said on many occasions," Woodman said. "And that is, in capital cases this court takes great care to ensure that the administration of the death penalty in Nebraska is administered in conformity with constitutional requirements."
Lotter was sentenced to death for his role in the 1993 killings of Brandon Teena and two witnesses, Lisa Lambert and Philip DeVine. Thomas Nissen is serving life sentences for the part he played in the crimes. Lotter, 46, has maintained his innocence in the killings at a Humboldt farmhouse.
Woodman argued that based on a 2016 U.S. Supreme Court decision in Hurst vs. Florida, all death sentences issued under Nebraska's system should be overturned. The Supreme Court struck down a death penalty sentencing scheme that allowed judges to impose those sentences in Florida.
A death sentence cannot be imposed under Nebraska law unless and until a panel of three judges gives additional findings that the aggravators are sufficient for death, and that they outweigh the mitigating factors.
Woodman said the Alabama Legislature had a similar sentencing structure and changed its statute to comply with the Hurst case ruling. Florida and Delaware are the only states that examined the precise issue she presented to the court, and both have held the statute to be unconstitutional, she said.
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At least two justices questioned Woodman's arguments.
Nebraska Solicitor General James Smith said a recent 8th U.S. Circuit Court of Appeals decision in a South Dakota case denied a similar Hurst claim because it was not retroactive and the jury had found three aggravating circumstances beyond a reasonable doubt.
The Florida case was a "clean-up case," he said, because that state had not updated its capital sentencing structure after an earlier Ring vs. Arizona Supreme Court decision.
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Lotter had already raised the same issue in federal court and it was rejected by the district judge and the 8th Circuit, Smith said. The U.S. Supreme Court didn't take up the appeal.
"I think the district court got it right," Smith said.
The Nebraska Supreme Court took the case under advisement and will rule at a later date.