Tom Nissen says he shot and killed three people in a Humboldt farmhouse nearly 14 years ago, a stunning reversal of court testimony that put his former drinking buddy on death row.
John Lotter wants a new trial on the grounds that Nissen lied on the stand.
Lotter, 36, has maintained his innocence in the Dec. 31, 1993, killings, despite being convicted of three counts of first-degree murder. He has lived on death row for 11 years pending appeals.
Separate juries found Lotter and Nissen guilty of killing Teena Brandon, a 21-year-old transgendered person from Lincoln who lived as a man; Lisa Lambert, 24, of Humboldt; and Phillip DeVine, 22, of Fairfield, Iowa.
The case shocked Nebraska and inspired the 1999 film “Boys Don’t Cry,” which earned Hilary Swank an Academy Award for her portrayal of Brandon.
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Marvin Thomas “Tom” Nissen recanted his testimony in a 2½-page affidavit he gave July 23 to an attorney representing Lotter in a federal court appeal.
“ The testimony I gave regarding the person who fired the gun was false,” the affidavit says. “I am the person who shot and stabbed Teena Brandon. I am the person who shot Phillip DeVine. I am the person who shot Lisa Lambert.
“I was in possession of the gun and fired all of the bullets that inflicted the gunshot wounds to those individuals.”
The affidavit is the primary exhibit in a motion asking for a new trial for Lotter. Lincoln attorney Paula Hutchinson filed the motion late Wednesday in Richardson County District Court in Falls City.
“The case against John Lotter came from the lips of Tom Nissen. Now Nissen says everything he said at trial was a lie,” Hutchinson said.
The motion seeks a new trial or resentencing for Lotter, or “an order vacating and setting aside his conviction and sentence and granting him absolute discharge.”
Brandon’s mother, JoAnn Brandon, was not happy to hear the news and said she hopes Lotter will not walk free as a result.
“I think it’s really sad,” she said Wednesday evening. “I don’t understand what Nissen is getting out of it.”
In a recent interview, Nissen described the affidavit as “true and correct.” But the 35-year-old former Falls City man also said Lotter helped plan the killings and was at the rented farmhouse when they occurred.
Under the law, a person complicit in murder can be held just as responsible as the person who takes a life.
Nissen, who is serving three life sentences at the Lincoln Correctional Center, said his belief that the death penalty is unfair motivated his decision to recant.
“There’s somebody sitting on death row who doesn’t deserve to be there,” he said.
Many people believe Nissen’s testimony May 17, 1995, essentially put Lotter there. At the time, Nissen had been convicted of murder but was awaiting sentencing. He agreed to testify against Lotter, and prosecutors agreed not to seek the death penalty against Nissen.
On the stand, Nissen admitted he stabbed Brandon but said Lotter had fired all of the shots from a stolen .380-caliber pistol.
But suspicion has long existed that Nissen perjured himself.
Over the years, three jailhouse snitches who shared cells with Nissen have claimed he admitted to a more prominent role in the killings. In a 2003 Journal Star interview, Nissen gave a coy response when asked if he pulled the trigger, saying “maybe some day I might tell exactly what happened. … ”
During negotiations to obtain Nissen’s testimony, prosectors wanted their star witness to take a lie detector test before taking the stand. Nissen refused, and prosecutors eventually dropped the request.
James Elworth, now assistant director of the NCAA’s Committees on Infractions in Indianapolis, was an assistant attorney general in the early 1990s and lead prosecutor in both cases. When contacted Wednesday, Elworth would only say he had no concern about the truthfulness of Nissen’s 1995 testimony.
It remains to be seen what effect, if any, Nissen’s new version of events will have on Lotter’s case.
In the past, when Lotter appealed his conviction based upon the likelihood Nissen lied, judges dismissed the snitch statements as nothing more than hearsay. Nebraska Supreme Court judges even considered the possibility Nissen was the gunman when they rejected one of Lotter’s appeals in 2002.
“Lotter is a major participant in the case in either version,” Judge Kenneth Stephan said.
Now, Richardson County District Judge Daniel Bryan must consider whether to grant Lotter a new trial based upon Nissen’s own words. A hearing to submit legal briefs and documentation should take place next month.
Richardson County Attorney Doug Merz was not available for comment Wednesday.
As for why Nissen decided to change his story, he initially said he didn’t know, then he said, “I guess it just took me that long to come to terms with what I had done and who I am.”
Some might dismiss the latest account of the killings as another lie.
Nissen said he can’t control what others think, but he believes he has nothing to lose. He can’t be tried for the same crime twice, he said, nor does he think prosecutors will find a legal avenue to have him resentenced. He agreed he could be charged with perjury, but such a conviction won’t add to a prison term that’s already for life.
Josephine Potuto, law professor at the University of Nebraska-Lincoln, said that, hypothetically, prosecutors can take action against witnesses who recant their testimony. Often it depends upon terms of the agreement between prosecutors and witnesses and whether a conviction has been jeopardized.
Nissen, who does not have an attorney representing him, also said he has nothing to gain by telling the truth now. Lotter did not ask him to recant, he said, adding that the men have had no conversations or correspondence since shortly after their arrests on that long-ago New Year’s Eve.
Back then, the two were young ex-cons with a zeal for hard drinking in Falls City, a Southeast Nebraska community of 4,700.
In November 1993, Brandon, who had recently moved to Richardson County from Lincoln, fell into their circle of friends, dating a woman they both knew.
Lotter and Nissen befriended Brandon, but their friendship abruptly ended when they learned about Brandon’s biological gender. Angry over being duped, Nissen said, they assaulted, kidnapped and raped the 21-year-old Lincoln woman in the early morning hours of Christmas Day.
The men soon learned Brandon had reported the rapes. According to Nissen’s testimony, they killed Brandon to derail the rape investigation, and they killed Lambert and DeVine to eliminate witnesses to the murder.
Lotter testified at his own trial, calling Nissen a liar and denying any involvement in planning or committing the murders.
Since then, despite losing multiple appeals, he has maintained his innocence. What Nissen called rape Lotter has called consensual sex, albeit a failed attempt because he was too intoxicated to perform.
If not for Nissen’s testimony, Lotter believes he would be a free man.
Even the three judges who sentenced Lotter to death in 1996 said Nissen’s testimony clinched the conviction.
“It appears to this panel that without Marvin Nissen’s testimony the case against John Lotter was largely circumstantial and that there were some significant weaknesses in the evidence against Lotter,” the judges wrote in their sentencing order.
In fact, investigators found no fingerprints, footprints or tire tracks to link Lotter to the crime scene. A hair found on Brandon’s wrist wasn’t his. The only living witness besides the killer was Lambert’s 8-month-old son.
But witnesses saw Lotter in the home from which the murder weapon was stolen hours before the killings. And the knife used to stab Brandon had the name “Lotter” on the sheath.
Perhaps most damaging was the testimony that challenged Lotter’s alibi — that he was sleeping with his girlfriend at Nissen’s rented house in Falls City. Prosecutors said the shootings occurred between midnight and 3 a.m. Rhonda McKenzie, Lotter’s girlfriend, told jurors he got home at about 3:30 a.m. but told her to say he returned earlier if questioned by police.
Attorney Hutchinson said the case still hinged on Nissen’s testimony, and her client deserves a new trial.
As for Lotter’s reaction to Nissen’s affidavit, Hutchinson said “Mr. Lotter is relieved that he finally did tell the truth.”
Reach Joe Duggan at 473-7239 or jduggan@journalstar.com.
