Brandon Teena (December 12, 1972 – December
31, 1993) was an American trans man, a female to male transgender
person, who was raped and murdered in Humboldt, Nebraska.
His life and death were the subject of the Academy
Award-winning 1999 film Boys Don't Cry, which was based on the
documentary film The Brandon Teena Story. Teena's violent death, along
with the murder of Matthew Shepard, led to increased lobbying for hate
crime laws in the United States.
Teena was born Teena Renae Brandon in Lincoln,
Nebraska, the younger of two children to Patrick and JoAnn Brandon.
His father died in a car accident eight months before he was born, and
he was raised by his mother. JoAnn named her second child after their
German shepherd dog, Tina Marie.
Teena and his older sister Tammy lived with their
maternal grandmother in Lincoln, before they were reclaimed by their
mother when Teena was three years old and Tammy was six years old. The
family resided in the Pine Acre Mobile Home Park in northeast Lincoln,
and JoAnn worked as a clerk in a women's retail store in Lincoln to
support the family.
As young children, Teena and Tammy were sexually
abused by their uncle for several years, and Teena and his mother
JoAnn sought counselling for this in 1991. JoAnn remarried once from
1975 to 1980, with the marriage having failed due to her husband's
Teena's family described him as being a tomboy
since early childhood; Teena began identifying as male during
adolescence and dated a female student during this period. His mother
rejected his male identity and continued referring to him as her
daughter. On several occasions Teena claimed to be intersex though
this assertion was later disproved.
Teena and his sister attended St. Mary's Elementary
School and Pius X High School in Lincoln, where Teena was remembered
as being socially awkward. During his sophomore year, Teena rejected
Christianity after he protested to a priest at Pius X regarding
Christian views on abstinence and homosexuality.
He also began rebelling at school by violating the
school dress-code policy to dress more masculine. During the first
semester of his senior year, a U.S. Army recruiter visited the high
school, encouraging students to enlist in the armed forces. Teena
enlisted in the United States Army shortly after his eighteenth
birthday, and hoped to serve a tour of duty in Operation Desert
Shield. However, he failed the written entrance exam by listing his
sex as male.
In December 1990, Teena went to Holiday Skate Park
with his friends, binding his breasts to pass as a boy. The
18-year-old Teena went on a date with a 13-year old girl. He also met
the girl's 14-year-old friend, Heather, and began cross-dressing
regularly in an attempt to attract teenage women. In the months
nearing his high school graduation, Teena became unusually outgoing
and was remembered by classmates as a "class clown". Teena also began
skipping school and receiving failing grades, and was expelled from
Pius X High School in June 1991, three days before high school
In the summer of 1991, Teena began his first major
relationship, with Heather. Shortly after, Teena was first employed as
a gas station attendant in an attempt to purchase a trailer home for
himself and his girlfriend. His mother, however, did not approve of
the relationship, and convinced her daughter to follow Teena in order
to know if the relationship was platonic or sexual.
In January 1992 Teena underwent a psychiatric
evaluation, which concluded that Teena was suffering from a severe
"sexual identity crisis". He was later taken to the Lancaster County
Crisis Center to ensure that he was not suicidal. Teena later
confessed to his mother that he had been raped by a male relative as a
young child. He was released from the center three days later and
began attending therapy sessions with his mother four times per week,
which ended two weeks later.
In 1993, after some legal trouble, Teena moved to
the Falls City region of Richardson County, Nebraska, where he
identified solely as a man. He became friends with several local
residents. After moving into the home of Lisa Lambert, Teena began
dating her friend, 19-year-old Lana Tisdel, and began associating with
ex-convicts John L. Lotter (born May 31, 1971) and Marvin Thomas "Tom"
Nissen (born October 22, 1971).
On December 19, 1993, Teena was arrested for
forging checks; Tisdel paid his bail. Because Teena was in the female
section of the jail, Tisdel learned that he was transgender. When
Tisdel later questioned Teena about his gender, he told her he was a
hermaphrodite pursuing a sex change operation, and they continued
dating. In a lawsuit regarding the film adaptation Boys Don't Cry,
this was disputed by Tisdel. Teena's arrest was posted in the local
paper under his birth name and his acquaintances subsequently learned
that he was anatomically female.
Sexual assault and murder
During a Christmas Eve party, Nissen and Lotter
grabbed Teena and forced him to remove his pants, proving to Tisdel
that Teena was anatomically female. Tisdel said nothing and looked
only when they forced her to.
Lotter and Nissen later assaulted Teena, and forced
him into a car. They drove to an area by a meat-packing plant in
Richardson County, where they assaulted and raped him. They then
returned to Nissen's home where the two men ordered Teena to take a
Teena escaped from Nissen's bathroom by climbing
out the window, and went to Tisdel's house. He was convinced by Tisdel
to file a police report, though Nissen and Lotter had warned Teena not
to tell the police about the rape or they would "silence him
permanently." Teena also went to the emergency room where a standard
rape kit was assembled, and later lost. Sheriff Charles B. Laux
questioned Teena about the rape; reportedly, he seemed especially
interested in Teena's transsexuality, to the point that Teena found
his questions rude and unnecessary, and refused to answer.
Nissen and Lotter learned of the report, and they
began to search for Teena. They did not find him, and three days later
the police questioned them. The sheriff declined to have them arrested
due to lack of evidence.
Around 1:00am on December 31, 1993, Nissen and
Lotter drove to Lambert’s house and broke in. They found Lambert in
bed and demanded to know where Teena was. Lambert refused to tell
them. Nissen searched and found Teena under the bed. The men asked
Lambert if there was anyone else in the house, and she replied that
Phillip DeVine, who at the time was dating Tisdel's sister, was
staying with her.
They shot and killed DeVine, Lambert, and Teena, in
front of Lambert's toddler. Nissen would later testify in court that
he noticed that Teena was twitching, and asked Lotter for a knife,
with which Nissen stabbed him, to ensure that he was dead. Nissen and
Lotter then left, later being arrested and charged with murder.
Brandon Teena is buried in Lincoln Memorial
Cemetery in Lincoln, Nebraska, his headstone inscribed with his birth
name and the epitaph daughter, sister, & friend.
Nissen accused Lotter of committing the murders. In
exchange for a reduced sentence, Nissen admitted to being an accessory
to the rape and murder. Nissen testified against Lotter and was
sentenced to life in prison. Lotter proceeded to deny the veracity of
Nissen’s testimony, and his testimony was discredited. The jury found
Lotter guilty of murder and he received the death penalty. Lotter and
Nissen both appealed their convictions, and their cases have gone to
review. In September 2007, Nissen recanted his testimony against
Lotter. He claimed that he was the only one to shoot Teena and that
Lotter had not committed the murders.
In 2009, Lotter's appeal, using Nissen's new
testimony to assert a claim of innocence, was rejected by the Nebraska
Supreme Court, which held that since—even under Nissen's revised
testimony—both Lotter and Nissen were involved in the murder, the
specific identity of the shooter was legally irrelevant.
In August 2011, a three-judge panel of the Eighth
U.S. Circuit Court of Appeals rejected John Lotter's appeal in a split
decision. In October 2011, the Eighth Circuit rejected Lotter's
request for a rehearing by the panel or the full Eighth Circuit en
banc. Lotter next petitioned the Supreme Court of the United States
for a review of his case. The Supreme Court declined to review
Lotter's case, denying his petition for writ of certiorari on March
19, 2012, and a further petition for rehearing on April 23, 2012,
leaving his conviction to stand.
Cultural and legal legacy
Because Teena had neither commenced hormone
replacement therapy nor had sex reassignment surgery, he has sometimes
been identified as a lesbian by media reporters. However, some
reported that Teena had stated that he planned to have sex
JoAnn Brandon sued Richardson County and Sheriff
Laux for failing to prevent Teena's death, as well as being an
indirect cause. She won the case, and was awarded $80,000. District
court judge Orville Coady reduced the amount by 85 percent based on
the responsibility of Nissen and Lotter, and by one percent for
Brandon's alleged contributory negligence. This led to a remaining
judgment of responsibility against Richardson County and Laux of
In 2001, the Nebraska Supreme Court reversed the
reductions of the earlier award reinstating the full $80,000 award for
"mental suffering", plus $6,223.20 for funeral costs. In October 2001,
the same judge awarded the plaintiff an additional $12,000: $5,000 for
wrongful death, and $7,000 for the intentional infliction of emotional
distress. Laux was also criticized after the murder for his attitude –
at one point Laux referred to Teena as "it".
In 1999, Teena became the subject of a biopic
entitled Boys Don't Cry, starring Hilary Swank as Teena and Chloë
Sevigny as Tisdel. For their performances, Swank won and Sevigny was
nominated for an Academy Award. Tisdel sued the producers of the film
for unauthorized use of her name and likeness before the film's
release. She claimed the film depicted her as "lazy, white trash, and
a skanky snake". Tisdel also claimed that the film falsely portrayed
that she continued the relationship with Teena after she discovered
Teena was not anatomically male. She eventually settled her lawsuit
against the movie's distributor for an undisclosed sum.
JoAnn Brandon publicly objected to the media
referring to her child as "he" and "Brandon". Following Hilary Swank's
Oscar acceptance speech, JoAnn Brandon took offense at Swank for
thanking "Brandon Teena" - the name Teena Brandon adopted - and for
referring to her as a man. "That set me off," said JoAnn Brandon. "She
should not stand up there and thank my child. I get tired of people
taking credit for what they don't know."
The British duo Pet Shop Boys released a song
called "Girls Don't Cry" (a bonus track on U.K. issue of I'm with
Stupid) about Teena in 2006.
Teena's violent death, along with the murder of
Matthew Shepard, led to increased lobbying for hate crime laws in the
By Katherine Ramsland
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.
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?
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
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?
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.
Mae Lambert directed him to a bedroom.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
"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.
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.
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.
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.
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.
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.
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
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
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.
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.
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."
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.
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
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.
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.
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.
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.
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.
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?
knows why Laux failed to move on Brandon's accusation, but his
decisions allowed them the time they needed to carry out their threat.
Hunt for Brandon
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.
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).
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
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.
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.
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."
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.
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."
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.
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.
John and Tom got in the car and started to drive. They now had Brandon
in their sites. 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.)
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.
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.
are you doing this?" Lisa screamed.
ignored 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.
went off to find him. He returned with the young amputee in tow, who
was shouting hysterically. Then John shot Lisa once again.
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.
killers left the house, tossed the gloves and weapons into the river
(they thought), and went back to Falls City.
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.
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.
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.
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.
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
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
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
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.)
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.
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.
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.
jury took only five hours to reach a decision.
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.
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.
appealed his case to the Supreme Court, and it was turned down.
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.
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.
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.
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.
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.
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.
other words, the condemned John Lotter was throwing everything he had
into his final appeal.
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
Lotter still had hope for his appeal to have DNA testing done.
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
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
John Lotter still awaits his fate.
Did He or Didn't He?
Lotter has been on death row for eleven years for the high-profile
shooting of Teena Brandon, who passed herself as Brandon Teena, and
for killing two other people on New Year's Eve in 1993 in Humboldt,
Neb. At Lotter's trial, Marvin "Tom" Nissen testified that Lotter had
shot the trio of victims and that he, Nissen, had merely stabbed
Brandon after she was dead, to make sure. This month, according to the
Omaha World-Herald, it became public record that Nissen had recanted
that testimony a few months ago and, therefore, Lotter now seeks his
Lotter has claimed all along that he did not kill anyone. He further
maintains he was not even at the crime scene. In 2003, his request for
DNA testing to demonstrate that Nissen was the shooter was denied, on
the grounds that blood on Nissen's clothing would not alone prove he
was the shooter. At that point, things looked fairly hopeless for
Lotter's appeals, but this past July, the situation apparently
Nissen had escaped the death penalty in 1995, testifying that Lotter
was the gunman and getting himself three life sentences. However, now
Nissen is revisiting his account. The Lincoln Journal Star reported
this month that Nissen has given a sworn statement in which he
recanted his original testimony against Lotter. Nissen himself claimed
to have shot and stabbed Brandon, and to have shot and killed both
Lisa Lambert and Phillip Devine because they were witnesses that had
to be eliminated. He said that Lotter had been going to help, and that
the assault had been his idea, as reported in the New York Sun, but he
couldn't follow through because his gun jammed. In addition to
Nissen's statement, four of his cellmates over the past decade have
said that he admitted to them he was the shooter.
Lotter's attorney has put things in motion to get him a hearing for a
new trial, but the attorney general, Jon Bruning is resistant. Just
because Nissen says it doesn't make it so. Nissen can't be retried and
resentenced, so there's no risk to him to change his statement to aid
Lotter. He could just be making this claim now to get Lotter off death
row. In any event, Nissen still maintains that Lotter was there and
was in on the plan. Under Nebraska law, that makes Lotter equally
culpable, regardless of who actually pulled the trigger.
if Lotter's sentence were commuted, says Bruning, he should remain in
prison. Teena's mother feels the same way.
Lotter recognizes that even with Nissen's change of story, there's
little chance of winning an appeal. Yet he plans to keep trying to
exonerate himself and win his freedom. His hearing will occur in the
Searchlight Productions, Director Kimberly Peirce, 2000.
Brandon Teena Story”, by Susan Muska and Greta Olafsdittir, Zeitgeist
“Execution of Brandon Teena's Killer Stayed," March 6, 2000.
Jared. "Double Trouble: The Two Lives and One Murder of Teena
Brandon," Oct. 7, 1999.
Lotter Convicted in Death of Teena Brandon," Press release, Falls
City, Nebraska, 1995.
Aphrodite. All She Wanted. New York: Pocket Books, 1996.
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.
Nissen: 'I am the
person who shot and stabbed Teena Brandon'
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
By Joe Duggan - Lincoln Journal Star
September 19, 2007
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
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
case shocked Nebraska and inspired the 1999 film “Boys Don’t Cry,”
which earned Hilary Swank an Academy Award for her portrayal of
“Tom” Nissen recanted his testimony in a 2˝-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
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.
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
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
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
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.”
Supreme Court of Nebraska
STATE v. LOTTER
STATE of Nebraska, Appellee, v. John L. LOTTER, Appellant.
Nos. S-08-449 to S-08-451.
September 04, 2009
HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and
McCORMACK, JJ., and INBODY, Chief Judge, and CARLSON, Judge.
Andre R. Barry, of Cline, Williams, Wright, Johnson
& Oldfather, L.L.P., Lincoln, for appellant. Jon Bruning, Attorney
General, and J. Kirk Brown, Lincoln, for appellee.
I. NATURE OF CASE
John L. Lotter was convicted of three counts of
first degree murder and sentenced to death. The evidence at trial
was that Thomas M. Nissen, also known as Marvin T. Nissen, and Lotter
planned the murders together, but Nissen testified that it was Lotter
who actually killed the victims. Fourteen years after the crimes
were committed, Nissen signed an affidavit stating that he committed
perjury at Lotter's trial and that he, not Lotter, actually killed the
victims. Lotter appeals from the district court's order denying his
second pro se motion for postconviction relief.
In May 1995, Lotter was convicted of three counts
of first degree murder, three counts of use of a weapon to commit a
felony, and one count of burglary in connection with the December 1993
deaths of Teena Brandon, Lisa Lambert, and Phillip DeVine in
Richardson County, Nebraska. Lotter was sentenced to death for each
count of first degree murder and to incarceration on the burglary and
use of a weapon convictions.
Before Lotter's trial, Nissen was convicted in a
separate trial of first degree murder in the death of Brandon and
second degree murder in the deaths of Lambert and DeVine.1
While Nissen's sentencing hearing was pending, Nissen entered into a
plea agreement with the State. The agreement provided that Nissen
would testify truthfully against Lotter at Lotter's trial and that, in
exchange, the State would not pursue the death penalty against Nissen
for Brandon's murder.
At Lotter's trial, Nissen testified that he and
Lotter traveled to Lambert's house, where they knew Brandon was
staying, in order to kill Brandon. Nissen and Lotter had previously
raped Brandon, and they were angry that she had reported the rape to
the police. Nissen testified that he and Lotter agreed they would
also kill anyone else they found there. Nissen testified that he
stabbed Brandon, but that Lotter fired the shots that killed all three
In addition to Nissen's testimony, other evidence
at trial established that on the night of the murders, Lotter stole
the gun used to murder the victims and that Lotter obtained the knife
and the yellow work gloves worn during the crimes. Just before the
killings, both Nissen and Lotter were seen wearing gloves. The
evening of the murders, Lotter told a witness he wanted to kill
someone. And after the murders, Nissen and Lotter sought to obtain
alibis from Nissen's wife and Lotter's girlfriend. Finally, there
was evidence indicating that Lotter had traveled to Lincoln, Nebraska,
looking for Brandon in order to murder her.
Lotter testified in his own defense and denied any
participation in either the planning or the perpetration of the
murders. Lotter stated he was not present when the murders were
committed. He testified that Nissen had not been truthful in his
testimony regarding Lotter's involvement in the crimes and that other
witnesses who gave incriminating testimony against him were either
lying or mistaken.
In sentencing Lotter to the death penalty, the
sentencing panel found the following aggravating circumstances to be
applicable. For Lambert and DeVine, the panel found in each case
that “ ‘[t]he murder was committed in an apparent effort ․ to conceal
the identity of the perpetrator of a crime’ ” 2
and that “ ‘[a]t the time the murder was committed, the offender also
committed another murder.’ ” 3
As to the murder of Brandon, the panel found that at the time the
murder was committed, the offender also committed another murder 4
and that “ ‘[t]he crime was committed to disrupt or hinder ․ the
enforcement of the laws.’ ” 5
When comparing Lotter's and Nissen's participation
in the homicides, the sentencing panel stated that the evidence, based
largely upon Nissen's testimony, was that Lotter fired all the shots
that killed the three victims. But the panel explained that even if
it was Nissen, and not Lotter, who actually killed Brandon by stabbing
her, “there is no appreciable difference in degree of culpability
between these Co-Defendants during the actual commission of the
In comparing the actions of Nissen and Lotter after the commission of
the crimes, however, the sentencing panel stated that Nissen's
statements to investigators, as well as Nissen's agreement to testify
against Lotter at trial, distinguished his conduct from Lotter's.
Lotter's convictions were affirmed on direct
then moved for postconviction relief, was appointed counsel, and was
granted an evidentiary hearing in 1999. In this motion, Lotter
alleged that Nissen, not Lotter, had shot and killed the three victims
and that the State knew or should have known Nissen's testimony was
perjured. In support of this assertion, Lotter relied on an
affidavit of Jeff Haley, an inmate incarcerated with Nissen. Haley
averred that Nissen told him that he had fired the shots and that, as
Nissen shot the victims, Lotter was “ ‘freaking out and running
around,’ ” saying “ ‘What are you doing?’ ” 8
According to Haley, Nissen stated that he should have shot Lotter as
well and then there would have been no witnesses. Lotter also filed
a motion for writ of error coram nobis and a motion for new trial
based on the statements allegedly made by Nissen to Haley.
At the evidentiary hearing, Nissen pled the Fifth
Amendment and refused to answer any questions. The district court
concluded that Haley's testimony as to what Nissen had allegedly said
to him was inadmissible hearsay. And the district court found that
the inadmissible hearsay did not fall within the penal interest
exception to the hearsay rule,9
because there were no corroborating circumstances clearly indicating
the trustworthiness of the testimony.10
Having no admissible evidence before it to support
Lotter's claims, the district court denied all relief, and we
affirmed. We agreed that the district court properly excluded
Haley's testimony and that thus, such statements could not form the
basis of any claim that Nissen's trial testimony was perjured. Since
Lotter failed to present any other evidence that was unavailable
during direct appeal that could show the State knew Nissen's testimony
was perjured, we held that the court properly denied postconviction
relief. For similar reasons, we concluded that the court was correct
to deny Lotter's motions for new trial and writ of error coram nobis.
In 2001, Lotter filed a pro se motion for
postconviction DNA testing pursuant to the DNA Testing Act.11
Evidence at Lotter's trial had indicated that the yellow work gloves
worn by Nissen at the time of the crime contained two areas that
tested positive for blood. The blood had never been subjected to DNA
testing. Lotter claimed that if the blood on the gloves and other
clothing worn by Nissen that night was shown to be caused by
high-velocity blood spatter from Brandon, as opposed to blood from
stabbing, or if the blood was shown to be from Lambert and/or DeVine,
then it would establish that Nissen was not in the locations he
testified he was in during the crime and that Nissen was the shooter,
We upheld the district court's decision to deny the
We explained that there would be no way to establish the manner in
which the blood had been deposited on the clothing, as opposed to
whose blood it was. And since there was any number of ways in which
the victims' blood could have been deposited on Nissen's clothing
during the crime, whose blood it was would not be probative of whether
Nissen was the shooter. Thus, the testing would not result in
noncumulative, exculpatory evidence relevant to the claim that he was
wrongfully convicted, as required by the DNA Testing Act.13
We also rejected Lotter's claim that the DNA
evidence could produce noncumulative, exculpatory evidence relevant to
the claim that Lotter was wrongfully sentenced, explaining: “As the
sentencing panel correctly concluded, the record is barren of any
evidence that Lotter was merely an accomplice or that his
participation was relatively minor. There was no appreciable
difference in the degree of culpability between Nissen and Lotter
during the actual commission of the murders.” 14
And we stated, again, that the presence of the victims' DNA on the
items sought to be tested would not be inconsistent with Nissen's
testimony and could not indicate whether Lotter was the shooter.15
In 2007, Nissen signed an affidavit averring that
his testimony in Lotter's trial regarding “who fired the gun” was
false. Nissen stated that he, and not Lotter, shot Brandon, Lambert,
and DeVine. Nissen did not recant any other portion of his testimony
concerning Lotter's involvement in the murders.
Lotter then filed a second pro se motion for
postconviction relief, which is the subject of this appeal. The
second postconviction motion alleged that Nissen was a critical
witness for the State and that during Lotter's trial, Nissen
“testified falsely that it was [Lotter] who conceived the idea of
killing Lambert, Brandon, and DeVine, and that [Lotter] shot all three
Lotter alleged that his constitutional rights were
violated because the State knew or should have known that Nissen was
lying at trial. In particular, Lotter alleged that the State was in
possession of evidence that Nissen was a “ ‘world class liar’ ” and a
“ ‘con artist.’ ” In particular, the State was aware of a prior,
unrelated incident in which it was documented that Nissen had lied to
authorities. The motion further alleged that the State had asked
Nissen to take a polygraph test in connection with the plea agreement,
but that Nissen had refused. This information indicating Nissen's
reputation as a liar was allegedly withheld from Lotter “until after
the conclusion of his trial.”
Citing Ortega v. Duncan,16
Lotter also asserted that the State's use of Nissen's perjured
testimony, regardless of its knowledge that it was perjured, violated
Lotter's constitutional rights because without Nissen's testimony,
Lotter “most likely would not have been convicted or sentenced to
Finally, citing Brown v. Mississippi,17
Lotter asserted that the use of Nissen's testimony violated Lotter's
constitutional rights because Nissen's testimony was procured by
threat of death by electrocution, a punishment this court has deemed
cruel and unusual in State v. Mata.18
Attached to the second motion for postconviction
relief was Nissen's affidavit, the aforementioned affidavit of his
cellmate Haley, statements to police by a family member describing
Nissen as a liar, and police reports relating to an incident in 1989
where Nissen cut himself with a razor and blamed someone else so the
accused would get arrested. Also attached was a newspaper article
detailing Nissen's previous run-ins with the police and descriptions
of Nissen's reputation as a liar. The district court concluded that
no evidentiary hearing was warranted by any of the allegations made by
Lotter, and Lotter appeals.
III. ASSIGNMENTS OF ERROR
Lotter asserts that the district court erred in
failing to grant him a new trial or, at a minimum, hold an evidentiary
hearing to determine (1) whether Nissen gave perjured testimony at
Lotter's trial and (2) whether the prosecution knew or should have
known about Nissen's perjury at the time of Lotter's trial, Lotter
asserts that the district court also erred in not granting
postconviction relief on the ground that his testimony was coerced by
the threat of cruel and unusual punishment.
IV. STANDARD OF REVIEW
Whether a claim raised in a postconviction
proceeding is procedurally barred is a question of law.19
The determination of whether the procedures
afforded an individual comport with constitutional requirements for
procedural due process presents a question of law.20
States are not obligated to provide a
postconviction relief procedure.21
Nevertheless, the Nebraska Postconviction Act 22
provides a defendant in custody with a civil procedure by which, “at
any time,” the defendant can present a motion alleging “there was
such a denial or infringement of the rights of the prisoner as to
render the judgment void or voidable under the Constitution of this
state or the Constitution of the United States.” 23
Although there is no time limit to bringing the motion,
postconviction relief under § 29-3001 is a very narrow category of
relief, available only to remedy prejudicial constitutional
Absent a factual circumstance whereby the judgment is void or
voidable under the state or U.S. Constitution, the court has no
jurisdiction to grant postconviction relief.25
An evidentiary hearing on a motion for
postconviction relief is required on an appropriate motion containing
factual allegations which, if proved, constitute an infringement of
the movant's rights under the Nebraska or federal Constitution.26
But, this court has consistently required that a defendant make
specific allegations instead of mere conclusions of fact or law in
order to receive an evidentiary hearing for postconviction relief.27
And postconviction relief without an evidentiary hearing is properly
denied when the files and records affirmatively show that the prisoner
is entitled to no relief.28
1. Alleged Perjured Testimony
Lotter's primary focus for this postconviction
claim is the allegation that Nissen's trial testimony against him was
perjured. Specifically, Lotter alleged in his motion that Nissen
“testified falsely that it was [Lotter] who conceived the idea of
killing Lambert, Brandon, and DeVine, and that [Lotter] shot all three
of them.” The fact that Nissen was lying at trial would presumably
have been known to Lotter at the time of the trial, and this issue was
previously the subject of motions for a new trial, writ of error coram
nobis, and postconviction relief. But Lotter points out that this is
his first opportunity to actually prove the perjury by virtue of
Nissen's partial recantation. Lotter argues that the use of the
perjured testimony at his trial violated due process of law and that
his convictions and sentences should be rendered void.
(a) Prosecutorial Misconduct
We first address Lotter's assertion that his right
to a fair trial was violated because, at the time of trial, the State
knew or should have known that Nissen's testimony was perjured. A
fair trial before a fair and impartial jury is a basic requirement of
constitutional due process guaranteed by the Constitutions of the
United States and the State of Nebraska.29
Where the testimony is in any way relevant to a
case, the knowing use of perjured testimony by the prosecution
deprives a criminal defendant of his or her right to a fair trial.30
Also, when the reliability of a given witness may be determinative of
guilt or innocence, nondisclosure of evidence affecting credibility
violates due process, irrespective of the good faith or bad faith of
For, if evidence probative of innocence is in the prosecutor's file,
then the prosecutor should be presumed to recognize its significance
even if he or she actually overlooked it.32
The requirements of due process are not satisfied by mere notice and
hearing if a state has contrived a conviction through the pretense of
a trial which in truth is but used as a means of depriving a defendant
of liberty through a deliberate deception.33
And the nondisclosure of exculpatory evidence corrupts the
truth-seeking function of the trial process and helps shape a trial
that bears heavily on the defendant.34
But in this case, the recently discovered
recantation by Nissen is in no way probative of whether the State knew
or should have known Nissen's testimony was perjured at the time of
Lotter's trial or whether it failed to disclose exculpatory evidence
with regard to Nissen's testimony. In fact, Lotter's allegation that
the State knew or should have known of Nissen's perjury at the time of
trial stems not from the recantation affidavit, but from information
known to the State that Nissen had lied several times in the past and
had refused the State's request that he take a lie detector test
The problem is that Lotter fails to allege that
this evidence was unavailable before any of the numerous challenges
already made to his convictions and sentences. None of the facts
alleged in the current motion could prove the State knowingly used
perjured testimony against Lotter. And, even assuming that a due
process claim can rest on the State's negligent failure to know that
testimony is perjured,35
Lotter is procedurally barred from raising his current allegations.
The need for finality in the criminal process
requires that a defendant bring all claims for relief at the first
Therefore, it is fundamental that a motion for postconviction relief
cannot be used to secure review of issues which were known to the
defendant and could have been litigated on direct appeal.37
Similarly, an appellate court will not entertain a successive motion
for postconviction relief unless the motion affirmatively shows on its
face that the basis relied upon for relief was not available at the
time the movant filed the prior motion.38
On its face, Lotter's motion for postconviction relief failed to
affirmatively show that he could not have raised these issues either
on direct appeal or during prior motions for new trial and
(b) Perjury Per Se
We next address Lotter's claim that the mere
presence of perjured testimony, regardless of the State's knowledge
that it was perjured, violated his rights to due process. Since this
is the first time that admissible evidence is available regarding
Nissen's recantation, such a claim is arguably not procedurally
barred. However, we hold that Nissen's recantation, even if proved
true, does not present a constitutional claim amendable to
postconviction relief. Therefore, postconviction relief on this
basis was properly denied without an evidentiary hearing.
Perjury per se is not a ground for collateral
attack on a judgment. The guilt or innocence determination in a
procedurally fair trial is “ ‘a decisive and portentous event.’ ” 39
The Due Process Clause guarantees a procedurally fair trial, but does
not guarantee that the verdict will be factually correct.40
The U.S. Supreme Court, while holding that affirmative prosecutorial
involvement in perjured testimony may interfere with the fairness of
the trial process,41
has never held that the prosecution's unknowing reliance at trial on
perjured testimony violates any constitutional right.42
Other courts, more directly confronted with the
issue, have concluded that perjury itself, absent prosecutorial
misconduct surrounding the perjury, does not constitute an independent
For instance, the court in Luna v. Beto 44
rejected the defendant's claim that a conviction on perjured testimony
was a constitutional violation even absent state complicity,
explaining that the unknowing use of perjured testimony is simply an
evidentiary mistake. In Luna v. Beto, the court stated:
[F]or an otherwise valid state conviction to be
upset years later on federal habeas, surely something more than an
evidentiary mistake must be shown. If mistake is enough, then never,
simply never, will the process of repeated, prolonged, postconviction
review cease. For in every trial, or at least nearly every trial,
there will be, there are bound to be, some mistakes.45
We agree. A defendant has a due process right to
a trial process in which the truth-seeking function has not been
corrupted. But it is axiomatic that the truth-seeking process is not
defective simply because not all evidence weighed by the trier of fact
was actually true. The protections of a “fair trial” granted the
defendant in the criminal process are there precisely because some of
the evidence against the defendant may be disputed.
Lotter relies on Ortega v. Duncan,46
wherein the U.S. Court of Appeals for the Second Circuit held that
regardless of prosecutorial knowledge of the perjury, due process is
violated when a court is left with the firm belief that but for a
witness' perjured testimony, the defendant would most likely not have
been convicted. In Ortega v. Duncan, the defendant was granted
habeas relief when a key witness placing the defendant at the scene of
the murder later recanted.
The majority of the federal circuits, however,
reject the Second Circuit's conclusion that affirmative prosecutorial
involvement is not a necessary element of a due process violation
based on perjured testimony.47
While some state courts allow such a claim, many do so under
postconviction relief statutes that do not limit relief to
constitutional claims rendering the judgment void or voidable.48
In Nebraska, postconviction relief is strictly
prescribed. In a different statute, the Legislature has provided
defendants with the ability to file a motion for new trial based on
newly discovered evidence showing that the defendant was wrongfully
Unlike postconviction relief, relief under § 29-2103 is not strictly
limited to constitutional claims. But a motion under § 29-2103 must
be filed within 3 years of the date of the verdict.50
We have repeatedly held that a motion for postconviction relief
cannot be used to obtain, outside of the 3-year time limitation, what
is essentially a new trial based on newly discovered evidence.51
This can be no less true for a recently discovered recantation than
for any other newly discovered evidence material to the defendant.
It has been said that there is no form of proof so unreliable as
“ ‘The opportunity and temptation for fraud are so obvious that
courts look with suspicion upon such an asserted repudiation of the
testimony of a witness for the prosecution, and this is so even though
the repudiation be sworn to.’ ” 53
“ ‘Society's resources have been concentrated at
[the time of trial] in order to decide, within the limits of human
fallibility, the question of guilt or innocence of one of its
citizens.’ ” 54
We will not set aside that decision more than a decade after it was
made based only on the recent recantation of some portion of a key
witness' testimony against Lotter. The 3-year limitation of
§ 29-2103 reflects the fact that with the passage of time and the
erosion of memory and the dispersion of witnesses, there is no
guarantee that the truth-seeking function of a new trial would be any
more exact than the first trial.55
We do not grant postconviction relief in the absence of a
constitutional violation, and the presence of perjury by a key witness
does not, in and of itself, present a constitutional violation.
(c) Actual Innocence
Nevertheless, in State v. El-Tabech,56
it was observed that in the “rare case of actual innocence,” there
might be a claim that the continued incarceration of such an innocent
person, without affording an opportunity to present newly discovered
compelling evidence, is a denial or infringement of a constitutional
right that would render the judgment void or voidable. The U.S.
Supreme Court, in Herrera v. Collins,57
while noting the “elemental appeal” of the premise that the
constitution prohibits the execution of an innocent person, concluded
that such execution was not an independent Constitutional violation.
However, the Court recognized that it was not actually presented with
the “truly persuasive demonstration of ‘actual innocence,’ ” 58
which, assuming any such constitutional claim could exist, would be
required. For, the Court explained, once a defendant has been
afforded a fair trial and convicted of the offense for which the
defendant was charged, the presumption of innocence disappears.59
Since Herrera, some state courts have held that
deprivation of life or liberty, in the face of persuasive evidence of
the person's actual innocence, violates fundamental concepts of either
procedural or substantive due process of law.60
But we need not decide in this case whether and how a claim of actual
innocence is cognizable under Nebraska's postconviction relief
statutes, because Nissen's recantation fails to present an issue of
Lotter's actual innocence. According to Lotter, Nissen's affidavit
proves he lied about who fired the shots that killed the victims and
who “conceived” the idea of killing them. But even if a defendant
has not actually killed a victim, substantial participation in the
felony committed, combined with reckless indifference to human life,
is sufficient to satisfy the constitutional culpability requirement
for a conviction of first degree murder 61
and to support a constitutional application of the death penalty.62
Nothing in the allegations presented by the
postconviction motion, even if true, refutes the evidence at trial
that Nissen and Lotter, wearing gloves, traveled to Lambert's house in
order to kill Brandon and anyone else they found there. The
recantation does not refute the evidence that Lotter stole the gun
used to murder the victims and that Lotter obtained the knife and the
gloves worn during the crimes. It does not refute the testimony of a
witness that on the evening of the murders, Lotter told the witness he
desired to kill someone and that after the murders, Lotter sought to
obtain an alibi. As we indicated in Lotter's appeal from the denial
of his motion for DNA testing,63
because of the joint participation in the felony and the reckless
indifference to human life, it is irrelevant to the degree of
culpability by whose hand the victims actually died. And certainly,
determination of this question does not make a showing of actual
innocence of the crimes for which Lotter was convicted and sentenced.
As such, postconviction relief based upon Nissen's recent
recantation was properly denied without an evidentiary hearing.
2. Coercion by Threat of Electrocution
Finally, Lotter alleges that he should have been
granted postconviction relief, because Nissen's testimony against him
was coerced by the threat of death by electrocution. In this regard,
Lotter argues that there are no issues of fact in dispute and that the
court simply should have granted postconviction relief with or without
an evidentiary hearing.
It is prosecutorial misconduct and a violation of a
defendant's due process right to a fair trial to obtain testimony
Recently, in State v. Mata, we considered evolving standards of
decency and concluded that death by electrocution resulted in
“ ‘unnecessary pain, suffering, and torture’ for some condemned
prisoners” and was unconstitutional.65
Lotter derives from this that Nissen's testimony pursuant to a plea
bargain, wherein the State agreed not to pursue the death penalty (at
that time, through electrocution), was unconstitutionally coerced by
the threat of torture.
A witness' testimony is not the result of
unconstitutional coercion simply because it is motivated by a
legitimate fear of a death sentence.66
True promises of leniency are not proscribed when made by persons
authorized to make them.67
Thus, it is permissible for the State to make promises of immunity or
pardon to witnesses in return for testimonial confessions and to make
promises of reduced charges or reduced sentences tendered to
defendants and potential defendants by plea bargains in return for
judicial admission of guilt.68
At the time of Nissen's plea agreement with the State, death by
electrocution was considered constitutional 69
and the State's promise not to pursue that punishment was thus a
legitimate promise of leniency. And, at trial, Lotter was permitted
to thoroughly cross-examine Nissen regarding his motivation to testify
against him, including his fear of death by electrocution. We find
no merit to Lotter's argument that Nissen's testimony was
Even if we assume the allegations of Lotter's
second motion for postconviction relief are true, he has failed to
present any claim that is not procedurally barred and which presents a
constitutional violation rendering the judgment against him void or
voidable. Therefore, the district court did not err in denying
relief without an evidentiary hearing.
State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
2. State v.
Lotter, 266 Neb. 758, 771, 669 N.W.2d 438, 448 (2003). See, also,
Neb.Rev.Stat. § 29-2523(1)(b) (Reissue 2008).
3. State v.
Lotter, supra note 2, 266 Neb. at 771, 669 N.W.2d at 448. See, also,
4. See id.
5. State v.
Lotter, supra note 2, 266 Neb. at 771, 669 N.W.2d at 448. See, also,
6. State v.
Lotter, supra note 2, 266 Neb. at 772, 669 N.W.2d at 449.
7. State v.
Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on denial of
rehearing 255 Neb. 889, 587 N.W.2d 673 (1999).
8. State v.
Lotter, 266 Neb. 245, 252, 664 N.W.2d 892, 902 (2003).
Neb.Rev.Stat. § 27-804(2)(c) (Reissue 2008).
State v. Lotter, supra note 8.
Neb.Rev.Stat. § 29-4116 et seq. (Reissue 2008).
State v. Lotter, supra note 2.
State v. Lotter, supra note 2, 266 Neb. at 773, 669 N.W.2d at 449.
Ortega v. Duncan, 333 F.3d 102 (2d Cir.2003).
Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682
State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).
State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993).
§ 29-3001 et seq. (Reissue 2008).
State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007); State v. Ryan,
257 Neb. 635, 601 N.W.2d 473 (1999).
State v. Murphy, 15 Neb.App. 398, 727 N.W.2d 730 (2007). See, also,
Danforth v. Minnesota, --- U.S. ----, 128 S.Ct. 1029, 169 L.Ed.2d 859
(2008); State v. Shepard, 208 Neb. 188, 302 N.W.2d 703 (1981); State
v. Whited, 187 Neb. 592, 193 N.W.2d 268 (1971); State v. Reizenstein,
183 Neb. 376, 160 N.W.2d 208 (1968).
State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
§ 29-3001. See, also, State v. Dean, supra note 26; State v. Sims,
supra note 19.
Const. amend. XIV, § 1; Neb. Const. art. I, § 11. See, also, State
v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993); State v. Menuey, 239
Neb. 513, 476 N.W.2d 846 (1991); Simants v. State, 202 Neb. 828, 277
N.W.2d 217 (1979).
v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
See, also, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49
L.Ed.2d 342 (1976); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2
L.Ed.2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79
L.Ed. 791 (1935); State v. Ford, 187 Neb. 353, 190 N.W.2d 787 (1971).
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104
(1972); Napue v. Illinois, supra note 30.
United States v. Agurs, supra note 30; Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See, also, State v. Boppre,
supra note 29.
United States v. Agurs, supra note 30.
Mooney v. Holohan, supra note 30. See, also, United States v. Agurs,
supra note 30; Brady v. Maryland, supra note 32.
U.S. v. Perkins, 94 F.3d 429 (8th Cir.1996); People v. Cornille, 95
Ill.2d 497, 69 Ill.Dec. 945, 448 N.E.2d 857 (1983). See, also,
Giglio v. United States, supra note 31. But see Smith v. Black, 904
F.2d 950 (5th Cir.1990), abrogated on other grounds, Stringer v.
Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992).
State v. Sims, supra note 19.
State v. Ryan, supra note 24.
State v. Sims, supra note 19.
Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 122 L.Ed.2d 203
Herrera v. Collins, supra note 39.
e.g., Napue v. Illinois, supra note 30; United States v. Agurs, supra
note 30; Alcorta v. Texas, supra note 30; Mooney v. Holohan, supra
Jacobs v. Scott, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995)
(Stevens, J., dissenting from denial of certiorari; Ginsburg, J.,
e.g., Black v. United States, 269 F.2d 38 (9th Cir.1959). See, also,
Burks v. Egeler, 512 F.2d 221 (6th Cir.1975).
v. Beto, 395 F.2d 35 (5th Cir.1968).
at 40 (Brown, C.J., concurring specially; Gewin, Bell, Thornberry,
Coleman, Ainsworth, Simpson, and Clayton, Circuit Judges, join).
Ortega v. Duncan, supra note 16.
Smith v. Gibson, 197 F.3d 454 (10th Cir.1999); Reddick v. Haws, 120
F.3d 714 (7th Cir.1997); Jacobs v. Singletary, 952 F.2d 1282 (11th
Cir.1992); Smith v. Black, supra note 35; Stockton v. Com. of Va.,
852 F.2d 740 (4th Cir.1988); Burks v. Egeler, supra note 43; White
v. Hancock, 355 F.2d 262 (1st Cir.1966); United States v. Maroney,
271 F.2d 329 (3d Cir.1959); Pina v. Cambra, 171 Fed.Appx. 674 (9th
Cir.2006); Billman v. Warden, 197 Md. 683, 79 A.2d 540 (1951).
e.g., In re Carpitcher, 47 Va.App. 513, 624 S.E.2d 700 (2006); State
v. Workman, 111 S.W.3d 10 (Tenn.Crim.App.2002); Downes v. State, 771
A.2d 289 (Del.2001).
§ 29-2103 (Reissue 2008).
See State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
id.; State v. Dabney, 183 Neb. 316, 160 N.W.2d 163 (1968).
People v. Shilitano, 218 N.Y. 161, 112 N.E. 733 (1916). See, also,
Dobbert v. Wainwright, 468 U.S. 1231, 105 S.Ct. 34, 82 L.Ed.2d 925
(1984) (Brennan, J., dissenting; Marshall, J., joins); Hysler v.
Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932 (1942).
v. Commonwealth, 199 Va. 184, 192, 98 S.E.2d 817, 823 (1957).
Herrera v. Collins, supra note 39, 506 U.S. at 401, 113 S.Ct. 853.
State v. El-Tabech, supra note 50, 259 Neb. at 529, 610 N.W.2d at 750
(Gerrard, J., concurring).
Herrera v. Collins, supra note 39, 506 U.S. at 398, 113 S.Ct. 853.
506 U.S. at 417, 113 S.Ct. 853.
e.g., In re Bell, 42 Cal.4th 630, 67 Cal.Rptr.3d 781, 170 P.3d 153
(2007); People v. Washington, 171 Ill.2d 475, 216 Ill.Dec. 773, 665
N.E.2d 1330 (1996).
Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140
v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987);
State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v.
Ryan, supra note 24.
State v. Lotter, supra note 2.
Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895
(1966); Brown v. Mississippi, supra note 17.
State v. Mata, supra note 18, 275 Neb. at 65, 745 N.W.2d at 277.
Poindexter v. Wolff, 403 F.Supp. 723 (D.Neb.1975). See, also, U.S.
v. Vest, 125 F.3d 676 (8th Cir.1997).
People v. Andersen, 101 Cal.App.3d 563, 161 Cal.Rptr. 707 (1980).
State v. Ryan, supra note 24.
WRIGHT and MILLER-LERMAN, JJ., not participating.