A Grisly Find
It was a cold morning on December 31 in Humboldt, Nebraska, the heart of the Midwest. While many households were rising to prepare to bring in 1994, one sat ominously silent. Anna Mae Lambert drove up the driveway of the rented farmhouse just outside town to visit her daughter and grandson. In moments, she was calling the police.
The Humboldt Rescue Squad took the call around 10:20 a.m. They were prepared for a long day, knowing that some people start their festivities early, and those who drink sometimes let loose demons. The Richardson County Sheriff's Department told them there'd been some deaths at the old farmhouse that had once belonged to Frank Rist. They thought one was a baby. Could they check it out?
The rescue crew quickly assembled, picked up a doctor and drove out to the farm, followed closely by Deputy Ray Harrod. No one knew quite what to expect.
Potentially, this was a crime scene, so Harrod entered to secure it. The first thing he saw was a young African- American man with a prosthetic leg slumped against the couch. A coffee table lay over his lap. Going closer, Harrod saw that the man was dead. There was an entrance wound in his jaw and an exit wound on the right side of his head. Yet there were no other signs of struggle in the room and nothing about the corpse revealed what had happened. It could have been a suicide, but there was no gun. Had someone taken it?
A search of the rest of the house was in order. Harrod moved toward the dining room. Oddly enough, a woman sat at the table feeding a baby. It was she who had made the call to police, she explained. She understood not to disturb a crime scene. She was the grandmother to this child and mother to one of the victims.
Victims? That meant there was more than one body here.
Anna Mae Lambert directed him to a bedroom.
Harrod ventured within, aware right away that the floor was flooded. Lying on a leaking waterbed were two people in their early twenties, a blond woman and a baby-faced young man with brown hair. They both appeared to have been shot execution style. Looking around for a weapon, the deputy found none. He had no idea who they were.
When Richardson County Sheriff Charles Laux eventually entered to have a look, he recognized one of the women on the bed as Teena Brandon, 21, who'd reported that John Lotter and Tom Nissen had raped her a week earlier, after a Christmas party.
Brandon lay on her back on the lower part of the bed, her legs dangling over the edge and her hands bloody. She was fully clothed, but her sweatshirt showed a large area of blood that had soaked through from her abdomen. Her white socks were pink from watered-down blood soaked up from the floor. Lifting her sweatshirt, officers saw a jagged wound, apparently made by a knife. Further up, a small bullet hole was evident under her chin, surrounded by gunpowder residue. That meant she'd been shot at close range. A fracture on her skull indicated that she'd been hit with a blunt object. Of the three bodies, hers was the most ravaged, so it was possible that she had been the primary target.
Lisa Lambert, 24, was partly under the covers, but there was a bullet wound to her right eye. Blood also ran out of her mouth and another wound was found in her stomach. It appeared that's she'd been sitting up in bed when shot.
The evidence collection unit of the Nebraska State Patrol was called in. They came out from Lincoln, but had to get an accident reconstruction expert to look at the tire tracks near the front porch, because it was too messed up to get a cast. They then went in to search for weapons and dust the place for fingerprints. A lone footprint and a red spot near the front door were photographed. They assumed that if a gun were located, recovered bullets from the bodies would help them identify it.
Checking the victim on the couch, they saw another bullet entry point in his neck. From a wallet found in a bedroom, he was identified as Phillip DeVine, age 19, and it appeared that he'd been sleeping there.
Six shell casings were found in the flooded bedroom, along with a spent bullet and a live cartridge. A cigarette lighter was collected as potential evidence, as were the contents of an ashtray. Along with swabs from two blood spots, these were bagged and sent to the criminalistics lab in Lincoln. Then the bodies were removed to the hospital morgue for autopsy. Arrest warrants for sexual assault were issued for John Lotter and Marvin Thomas Nissen, and when apprehended, they would be questioned in the matter of these murders. They were under heavy suspicion.
It didn't take long to find out that three people had needlessly died because two young men had been unable to deal with someone who was different.
Teena or Brandon?
It wasn't quite right to call her a lesbian. That's not at all how she felt. She was attracted to women, but she liked them the way a man does. And so she stuffed a pair of rolled socks in her pants, bound up her breasts with Ace bandages, and passed herself off as a man.
In fact, before long she'd be a man. She was saving up for a sex change operation, she told people, but until that time, she wanted to have some fun as a guy, just hang out. Calling herself masculine sounding names like Ten-a Ray, Billy, and Brandon, she cut her brown hair short and adopted male garb. Sometimes she revealed her gender struggles and for this, she experienced plenty of prejudice and misunderstanding. Yet never could she have anticipated the murderous rage that her boldness to defy rigid gender codes would soon ignite.
Teena Renae Brandon was born in Lincoln, Nebraska, on December 12, 1972. By the time she was in high school she was calling herself Billy and dating girls from other schools. Many of them thought she was the perfect boyfriend, and all Teena wanted was to make others feel good. She even got engaged twice to different girls, but the more people she confided in, the more people she alienated. Although she had some counseling with her mother, it was difficult even for her family to adjust. Few people believed her, and with good reason, because she lied quite often.
Sometimes she called herself a hermaphrodite, or a person born with two sets of sexual organs, and she aimed to turn herself fully into a man. Her greatest fear, according to acquaintances, was to be touched sexually by a man, and she was especially afraid of being raped. In fact, one male relative had exposed her to repeated sexual abuse, so her male appearance was as much a disguise as a guise.
She also forged checks to get money, stole from people, and got herself into some trouble, so late in 1993, she left Lincoln and set out for a place where people wouldn't know her. Keeping her secret from others, she could start a new life strictly as a man.
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"Brandon" came into Humboldt, about eighty miles south of Lincoln, and stayed with a girl named Lisa Lambert. Lisa fell in love with him, but he soon had his eye on someone else. That's what got him into more trouble than he'd bargained for.
The small towns in that area were primarily white, lower middle-class communities with a high rate of domestic violence. They didn't much care for strangers with quirks, and homosexuality was kept in the closet. No one even knew what a transsexual was.
At five-foot-five and 112 pounds, Brandon was considered a pleasant if skinny young man. He hung out with the guys, played cards, made remarks about women, talked about cars, and even shaved. He knew how to treat a girl, though, and by early December in 1993, he was dating Lana Tisdel, 19. In every way, she knew Brandon as a young man, and when she told a girlfriend that his penis was rather small, the friend told her, never mind, he was a great guy in every other way.
Among his new acquaintances were Tom Nissen, an ex-con who was married and had two kids. They sometimes hung out together with another ex-con, John Lotter, a former boyfriend of Lana's. During that holiday season, a young black man named Phillip DeVine joined them because he was dating Lana's sister.
The problem was, Brandon had no money, so he soon turned to his old habit of forging checks. Three days after his twenty-first birthday, on December 15, he was in jail, placed in the women's section. Lana was confused and horrified, and by December 22, she got Tom to bail him out. Two days later, they were all at Tom's house for a Christmas Eve party. That's when the trouble really began. Who started it depends on who you ask, but once begun, there was no turning back.
Bad News Brewing
By this time, the word was out that this Brandon, who'd convinced everyone he was a male, was actually female. The Falls City Journal had identified him as such in its listing of area arrests. Although Lana had glimpsed Brandon's breasts while he was in jail, she was still unsure, so she confronted him. Brandon confessed that he was going through a sex change procedure. Yet earlier, he told her he was a hermaphrodite---half-male---so she no longer knew what to believe. Nevertheless, she stuck by him because she liked him. She even defied her mother on the subject. Nevertheless, there are some who thought she was the one who asked the others to find out the real story.
No one else said much to her about it, she insists, until the Christmas Eve party. Tom and John got drunk enough to force the issue. They didn't much like what was going on and didn't want Lana dating a person they considered a freak. (It was also possible that John, who'd loved her, didn't want her dating anyone.)
Grabbing Brandon, they unfastened his pants and pulled them down, demanding that Lana have a look. They wanted her to just admit that Brandon was a girl. According to her account, she shielded her eyes. They insisted, so she looked but said nothing.
Soon John told her she was wanted back at home, where Brandon was no longer welcome, so when she decided to leave, she couldn't take him along with her. Brandon begged her to come back. He was afraid of Tom, he said, even though he was staying at Tom's by invitation. Lana promised she would. Then she left, and Tom and John decided it was time to teach this boy/girl a lesson.
In a drunken state, Tom followed Brandon into the bathroom and punched him hard in the stomach. According to Brandon, Tom also kicked him several times when he was down. Then Tom and John hustled Brandon into a car and drove out into the cold night. They found a secluded spot near a school and Tom forced him into the car's back seat and insisted he remove his pants. Brandon begged Tom not to hurt him, but finally removed his shoes and pants. Then Tom raped him, both anally and vaginally, to prove to him that he was a girl. After that, John had his turn, although he later said he could not complete the act and had ejaculated into a condom. For good measure, Tom hit and kicked Brandon again.
By the time Brandon stumbled back to find Lana, his lip was bruised and bleeding, his body was sore from all the pummeling, and he was in a state of profound shock. Although it was cold out, he wore no coat or shoes, and even worse, the thing he'd most feared had happened to him.
John and Tom had warned him to tell no one, but Lana urged him to report the rape and assault to authorities. She had no idea of the humiliation this would bring to Brandon, or the degree of retaliation.
The Interrogation
The hospital, where they took specimens for a rape kit, was one ordeal, but the questioning was another.
Richardson County Sheriff Charles B. Laux had never heard of this kind of thing before. He knew what rape and assault were, but this creature who passed herself off as a boy was something altogether new and exotic...and not in a good way. From his way of questioning her, he obviously found her sexual preferences to be repugnant, and was later quoted as referring to her as "it."
In fact, transsexual individuals are generally met with confusion, prejudice, and utter disbelief. Also known as gender dysphoria, the psychiatric bible, DSM-IV, lists persistent transexuality as a gender identity disorder. In general, it's a state of conflict between one's gender orientation and one's physical self. In other words, sex-related brain structures associated with gender are the opposite of the physical sex organs. People born as girls feel more oriented in the world as boys, and boys as girls. They can feel miserably trapped and resentful. One's sense of gender is part of one's identity, and it's disconcerting to be expected to act a certain way when that's not how things feel.
This conflict becomes part of early awareness, when girls get teased for being tomboys and boys teased for being sissies. They begin to doubt themselves, and may even develop a deep self-loathing, brought on by being misfits in an intolerant society. Their needs become a source of embarrassment and suffering. They're often driven to "fix" themselves, but can't always achieve it, and the estimate of suicides by age 30 among transsexuals is around 50%. Even going to a therapist doesn't necessarily work, since some mental health practitioners believe it's a matter of curing the "pathology." Often, doctors will encourage hormonal treatments and sex change operations to bring gender orientation into line with the physical body. This appears to be the best approach and has been quite successful with many transsexuals, but not everyone can afford it. The transition stage, too, can be quite painful.
Homosexuality sometimes occurs in conjunction with transsexuality, but not always, so to assume a person like Brandon is also a lesbian is to misunderstand the way Brandon expressed his identity. It's also not about the sexual fetish known as transvestitism or cross-dressing. Brandon may have looked female, but he felt best as a male.
Sheriff Laux was supposed to be asking Brandon questions specific to the rape and assault, but he veered away to ask things like, "Why do you make girls think you're a guy?" and "Do you kiss them?" He implied that there was something wrong with Brandon and insisted he needed answers because these were questions that would come up in court. They struck Brandon as prurient and unnecessary, so at times he refused to answer. He was later called uncooperative.
Laux acted as if he discounted Brandon's claim to being a virgin and kept asking probing questions about his sexual experiences. Wasn't Brandon amazed, he insisted, that John Lotter had pulled down her pants and not fondled her? "Doesn't that kind of, ah, get your attention somehow?" he asked. In fact, on this point he persisted, asking it at least three times. He seemed unconvinced that a man would have a naked woman under his control and fail to take advantage to at least touch her private parts. He also suggested that during the rape, Brandon had physically stimulated John to get him going.
Whatever was said at the end of the interview will never be known because the last part of the tape was erased.
Brandon signed a complaint and assumed that the two men would be picked up. There was every reason to believe they might act on their threat, so the sooner they were off the streets, the better.
After three days, deputies went out to question the suspects and thought they ought to be arrested, but Laux would not allow it. On the fourth day after, Brandon's sister Tammy called Laux to question why the suspects had not been apprehended, and she was surprised by his attitude. He didn't think she ought to be interfering. He'd do what needed to be done.
Yet these were men with criminal records. Boys Town had rejected John as a child, and with brain damage and a low IQ, he'd always been in one kind of trouble or another. Tom was an abuse victim who suffered from major depression and liked to cut himself. Both were heavy drinkers, and there was evidence that Tom had abused his wife. That they might be guilty of assault was no surprise, so why were they still free?
No one knows why Laux failed to move on Brandon's accusation, but his decisions allowed them the time they needed to carry out their threat.
The Hunt for Brandon
One day after the rape, on December 26th, John and Tom were still simmering. They armed themselves with a rope, a hatchet, and a change of clothing, and went looking for Brandon. Stopping first at his home in Lincoln, Nebraska, they failed to find him, so they checked at three other places that they found listed in Brandon's address book. Still he eluded them. The account as we know it comes from a few witnesses and a confession made later by Tom Nissen, in exchange for his life. John Lotter denies the entire episode, although his denial of witness accounts makes his version highly suspect. Tom, too, has an agenda, but his version corroborates that of other witnesses. Where it may be most self-serving is at the scene of the crime. Regardless, they were in this together and they were both involved in premeditated murder.
Feeling thwarted and apprehensive in their initial search, they started to drink. According to Tom, John felt that it was imperative they find Brandon and get rid of him as a witness to the assault. He didn't like people "narking" on him. They could lure him away, tie him up, and chop off his head and hands to prevent anyone from identifying the corpse. That way their problems would be over (a sentiment they expressed to several people in the period prior to the murders).
On December 28, they were called in and questioned by a police officer about the assault. John claimed that Lana had asked him to find a way to determine Brandon's sex. He also insisted that neither he nor Nissen had sexual contact with her. Yet he would not voluntarily provide samples of his semen or hair, and refused a polygraph examination.
Tom, on the other hand, did offer to give samples, and he said that he'd been there while John had consensual sex with Brandon, but he hadn't participated. He was going back for a second interview, too. Oddly, he told all of this to John, indicating that he was trying to throw the cops off. John seemed unable to perceive what his partner in crime was really doing, but he was troubled.
He sensed they were really in trouble. If they'd had any second thoughts about killing Brandon, they no longer entertained them. They started to make some serious plans.
On December 30, Brandon was supposed to return to the police station for a follow-up interview, but when he got there, he saw that Tom was there, so he didn't go in. He called his mother, who begged her child to come home. "I'll be there on the 3rd," said Brandon, "and everything will be all right."
That same day, Tom and John drove to Rulo, Nebraska to see Tom's mother. He told her he wanted to give power of attorney for his youngest child to her, but didn't explain himself. They went to a local bar and drank all day, and then drove back to Falls City.
At this time, John decided they needed better weapons. He went to his mother's house to get a pair of golden gloves and a knife. Afterward, they went to see a man named Eddie Bennet, who had a gun. John pretended to be visiting. When he excused himself to use the bathroom, he snatched the gun from Bennet's drawer and once he had it, according to Tom, he claimed that he was going to "take care of Brandon."
They went to Lana's house late that night with the intent of killing Brandon, whether he left with them or not. They knew that meant that they might have to kill everyone else, too. But they were on a mission. This thing had to be done.
Yet once again they struck out. Brandon wasn't there. Lana's mother directed them to the home of Lisa Lambert, who was giving Brandon shelter in her rented farmhouse in Humboldt. Lana later reported that John had said he felt like killing someone and told her that she was next. He also said, "I'm sorry. I hope you all don't hate me," although they had no idea what he meant. Yet no one bothered to call over to the farmhouse to warn the occupants.
Then John and Tom got in the car and started to drive. They now had Brandon in their sights. There would be no escape. (By some accounts, Lana was in the car, too, and remained in the car when they went into Lambert's home. She denies this.)
When they arrived, it appeared that no one was home, but John was not to be dissuaded. He kicked open the door and went into a dark bedroom where he found Lisa in bed. In a nearby crib was her 8-month-old son, Tanner. John demanded that she tell him if Brandon was there, but she refused to answer. Then they started looking around and discovered Brandon under a blanket on the floor at the foot of Lisa's bed.
Tom grabbed him and pulled him up, and then everyone started to yell, which woke the baby and made him cry. Tom turned toward the baby and when he looked back, Brandon was lying on the bed clutching his stomach, although Tom claimed he had not heard the gun fire. He saw Brandon twitching, so he asked for John's knife and used it to stab Brandon in the stomach.
"Why are you doing this?" Lisa screamed.
Tom i
gnored her and went to pick up her baby. He handed the boy to her. When she set the child aside on the bed, he claims that John shot her in the stomach. She jumped up and screamed. Tom picked up the child and returned him to his crib, and then asked Lisa if there was anyone else in the house. In that moment she signed another death warrant: that of Phillip DeVine, who was in another room. He'd had a fight with his girlfriend that day, so he was staying just by chance with Lisa.
John went off to find him. He returned with the young amputee in tow, who was shouting hysterically. Then John shot Lisa once again.
Phillip insisted he'd tell no one if they'd just leave him alone, but John and Tom took him into the living room and instructed him to sit down on the couch. Then, according to Tom, John shot him twice. He returned to Lisa's room and fired a few more rounds.
The two killers left the house, tossed the gloves and weapons into the river (they thought), and went back to Falls City.
They were arrested that afternoon, and Tom wasted no time in letting the deputies know that he'd witnessed John Lotter shoot three people to death in Humboldt.
The police went to the river and saw the golden gloves lying on top of the ice on the frozen river. Retrieving them, they found the gun and a knife inside a leather sheath in which the name "Lotter" was printed. Now they had their suspects tied clearly to the murder weapons. These two were going to trial, possibly to their deaths.
The Trial
Marvin Thomas Nissen was tried first, in February, 1995. His attorney's principal problem was Tom himself. Eager for publicity, Tom had given an interview to Playboy magazine in which he confessed to both the rape and his part in helping kill Teena Brandon. The prosecutor lost no time in adding the journalist to his list of witnesses, because this was an even greater find than the jailhouse snitch to whom Tom had also confessed. Tom was a self-serving blabbermouth.
Even so, the jury had trouble finding him guilty of first-degree murder in all the deaths. They deliberated for eighteen hours, and finally convicted him on March 3rd of first-degree murder in the death of Teena Brandon, but second-degree murder in the deaths of Lambert and DeVine. His sentence was delayed until after John Lotter's trial, which meant he could still face the death penalty. Marvin Thomas Nissen did some quick thinking.
John Lotter's trial began on Monday, May 15, 1995. The ten women and two men serving on the jury were brought in from Omaha and sequestered in Falls City.
Prosecutor James Elworth told jurors that there was no doubt that Lotter had been involved, and in part it was because he feared that Teena Brandon would testify against him and send him to prison for rape.
Police testified that on the night following the discovery of the murders, they found a gun and knife inside a pair of gloves in the Nemaha River, south of Falls City. The gun proved to be the one involved in the crimes, the knife's sheath bore Lotter's name, and blood on the blade proved to be the same type as Brandon's. There was psychiatric testimony to the effect that Lotter was mentally impaired and might not have been able to judge right from wrong. Yet even the psychiatrists conceded that tossing the murder weapon into the river indicated that he certainly knew that what he'd done was against the law.
John's former girlfriend, Rhonda Mackenzie, also testified that he had threatened to kill Brandon for duping them fully a week before the murders occurred. Then on the night of the murders, he woke her at 2:30 a.m. and asked her to give him an alibi. (Tom had done the same with his wife, who had noticed the clock reading 3:30 a.m.)
Then at the last minute, Tom Nissen cut a deal with the state to save his life. He took the stand. For his truthful account, nothing he said would be used against him and he would not face the death penalty. Defense attorney Mike Fabian attempted to prevent the admission of his testimony, but the judge allowed it.
Tom stated quite clearly that he and John Lotter had committed these murders together. Not only that, they'd plotted for six days to kill Brandon, starting the day after they'd assaulted him. They'd gone to Brandon's home in Lincoln, Nebraska, on December 26, 1993, looking for him. The plan was to lure him to an isolated spot and then chop off his head and hands.
When their quest went sour, they sat around drinking and obsessing about what had to be done. It had been Lotter's contention, according to Tom, that a dead witness could not testify, and that was the only way to save themselves. Nissen admitted to stabbing Brandon, but said that Lotter had done all of the shooting. Nissen had stabbed Brandon after the first shot because he thought Brandon was still alive. "She was twitching," he said.
To everyone's surprise, John Lotter, who'd refused to say anything up to that point except that he was innocent, wanted to testify in his own defense. His attorney advised against it, but he insisted. On the stand, he denied every aspect of Tom Nissen's account, but was soon caught in a lie. Then when he contradicted the testimonies of upstanding, credible citizens, he made things look even worse for himself. By the end, everything he said was in doubt.
The jury took only five hours to reach a decision.
On Thursday May 25, 1995, John Lotter was convicted of three counts of first-degree murder, three counts of using a deadly weapon, and one count of burglary. The prosecutor sought the death penalty, which was automatically subject to appeal.
JoAnn Brandon went after Charles Laux, the cop who had failed to arrest Lotter and Nissen for rape. She sued him and Richardson County in the wrongful death of her child, charging that his negligence and mishandling of the case had resulted in Brandon's murder. He had actively prevented his deputies from making an arrest. Laux said that he was simply trying to avoid jumping the gun and compromising the case. A lower court dismissed the suit, but the Nebraska Supreme Court reinstated it because Laux had actually informed the perpetrators of the complaint, and then had failed to protect the victim. If the allegations were true, the justice said, "Laux laid an essential link in the chain that led to the victim's death." While the lower court conceded, they only gave part of the monetary award, since they calculated the county to be 15% at fault. That amounted to just over $17,000, an insult.
However, the Nebraska Supreme Court had ruled that Laux was negligent in his duty to protect Teena Brandon. In addition, his tone in the tape-recorded interview with Brandon was "demeaning, accusatory and intimidating." They ordered the lower court to increase its damage award to JoAnn Brandon to the original amount.
Nissen appealed his case to the Supreme Court, and it was turned down.
On March 6, 2000, the Nebraska Supreme Court issued a stay of execution of the April 26 execution date. As of this writing, he is still awaiting his fate, with appeals pending.
Fox Searchlight Pictures released a film, Boys Don't Cry, that depicts (with some liberties) Brandon's life and death. Hilary Swank, who played the lead role, won the Academy Award for Best Actress.
Lotter Appeals
Once in prison, John Lotter began to fight his conviction for the triple murder in Humboldt, Nebraska in 1993. He'd been unprepared for Marvin Nissen to take the stand, describe their week-long premeditation, and then turn on him as the shooter. Nissen had said that he'd merely stabbed one of the victims, Teena Brandon, after she was shot to make sure she was dead. For his cooperation, he'd received life in prison, while Lotter faced execution.
Lotter claimed that contrary to Nissen's testimony, Nissen himself had been the shooter, and Lotter could prove it. According to Kevin O'Hanlon for the Associated Press, Lotter believed that DNA testing on gloves, shoes, and clothing that Nissan had worn on that fateful New Year's Eve would exonerate him, because blood from at least one other victim, if not both, would be found, and that it would show patterns of high velocity spatter consistent with a shooting. Thus, Nissen would be caught in a lie about where he was at the time each person was shot. In 2001 Lotter petitioned Richardson County District Judge Daniel Bryan, under the Nebraska DNA Testing Act, to order the test. Since he was indigent, Lotter also asked the state to fund it.
Prosecutors protested this appeal, pointing out that Lotter could have requested DNA testing during his 1995 trial but did not. Yet Soucie claimed that the kind of testing they sought (named in State v. Lotter S-02-1072, 266 Neb. 758 as Power Plex 16 amplification and multiplex identification system with the ABI Prism Genetic Analyzer) had not been available in 1995. He also pointed out that until 1997, DNA evidence was not declared legally admissible in Nebraska. In addition, Lotter had not known until the trial that Nissen would be testifying against him. He had not expected to need any such proof. Lotter also claimed that there was no evidence that he was even with Nissen in the farmhouse at the time of the shootings, other than Nissen's word.
The State argued that there was other evidence against Lotter, including his theft of the murder weapon earlier in the day, he successful efforts to obtain the gloves and knife used in the crimes, his appearance with Nissen just prior to the murders, Lotter's stated desire that day to kill someone, and his effort to seek a false alibi from his girlfriend during the time the murders had occurred.
Judge Bryan rejected Lotter's petition, saying that DNA testing would not indicate how blood had gotten on the gloves or clothing, and that spatter patterns would only indicate that Nissen had been near the victims when they were shot, not prove that he was the shooter. And even if Nissen had been mistaken in how close to a victim he was that night, contrary evidence would not necessarily catch him in a lie, since memory can be faulty. Thus, none of the claims had merit, in terms of proving exculpatory evidence.
In June 2003, Lotter's attorney, Jerry Soucie, took his petition to the Nebraska Supreme Court. In another appeal to get a new trial, Lotter also argued that his trial judge made an error when he barred testimony from an inmate, Jeff Haley, who had shared a cell with Nissen at Lincoln Correctional Center and who'd allegedly heard incriminating comments as to who had actually committed the murders. Lotter also asked the high court to declare the electric chair to be cruel and unusual punishment, and stated that a 2002 Supreme Court ruling in an Arizona case indicated that in death penalty cases, juries, not judges, should decide a killer's fate. Lotter had been sentenced by a three-judge panel. If he could not get a new trial, his sentence should at least be commuted to life. With the addition of favorable DNA evidence, he would no longer be death eligible.
In other words, the condemned John Lotter was throwing everything he had into his final appeal.
On July 11, 2003, Nebraska's high court said that the Supreme Court's 2002 ruling was not retroactive, and therefore Lotter was not entitled to a new trial. Nor would his death sentence be commuted to life, since the jury had ruled that the two men had equal culpability in the incident and Nissen's lesser sentence had been the result of his cooperation, not his status of diminished culpability. Had he not cooperated and been convicted just on what he described of his participation, it was likely that he may also have gotten a death sentence.
Yet Lotter still had hope for his appeal to have DNA testing done.
By the end of September, that hope disappeared. On the 26th, the Nebraska Supreme Court unanimously upheld Judge Daniel Bryan's earlier decision to reject the petition for DNA testing. The conclusion of the justices was that DNA findings would not offer conclusive proof that Lotter had been wrongly convicted or wrongly sentenced. They cited that prosecutors had pointed out that Lotter had wrapped the knife and gun in the gloves, so blood from all three would likely be present on the gloves.
"DNA evidence is not a videotape of a crime," Judge John Wright was quoted as saying in the Sioux City Journal. They agreed with Judge Bryan that a DNA test would not determine just how blood might have gotten on the gloves. That means the test would not establish that Nissen had shot anyone. In short, the DNA test would not offer Lotter what he believed it would in terms of evidence against Nissen and in favor of his claim of innocence.
Thus, John Lotter still awaits his fate.
Bibliography
Boys Don't Cry Searchlight Productions, Director Kimberly Peirce, 2000.
"The Brandon Teena Story", by Susan Muska and Greta Olafsdittir, Zeitgeist Films, 1998.
"Execution of Brandon Teena's Killer Stayed," March 6, 2000. www.datalounge.com.
Hohlt, Jared. "Double Trouble: The Two Lives and One Murder of Teena Brandon," Oct. 7, 1999.
"John Lotter Convicted in Death of Teena Brandon," Press release, Falls City, Nebraska, 1995.
Jones, Aphrodite. All She Wanted. New York: Pocket Books, 1996.
"The Life and Death of Teena Brandon," American Justice, A&E, 2000.
"Nebraska Court Rules Former Sheriff was Negligent in Cross-Dressing Woman's Murder," AP, April 20, 2001.
"What Transsexuality is," www.transsexual.org.
Taken from http://www.crimelibrary.com/notorious_murders/not_guilty/bra
ndon/1.html by Katherine Ramsland