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John L. LOTTER

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Rape
Number of victims: 3
Date of murder: December 31, 1993
Date of arrest: Same day
Date of birth: May 31, 1971
Victim profile: Teena Brandon, 21 (a transgendered person who lived as a man); Lisa Marie Lambert, 24; and Phillip DeVine, 19
Method of murder: Shooting (.380-caliber pistol)
Location: Humboldt, Richardson County, Nebraska, USA
Status: Sentenced to death on February 21, 1996
 
 

 
 
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The United States District Court of Appeals
For the District of Nebraska

 

John L. Lotter v. Robert Houston, Warden

 
 

 
 

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.

Life

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 alcoholism.

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 graduation.

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 shower.

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 reassignment surgery.

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 $17,360.97.

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 United States.

Wikipedia.org


Teena Brandon

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.

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.

"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 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.)

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 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.

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.


Did He or Didn't He?

John 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 freedom.

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 changed.

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.

Even 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 near future.

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.

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.

CrimeLibrary.com


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

Tom Nissen says he shot and killed three people in a Humboldt farmhouse nearly 14 years ago, a stunning reversal of court testimony that put his former drinking buddy on death row.

John Lotter wants a new trial on the grounds that Nissen lied on the stand.

Lotter, 36, has maintained his innocence in the Dec. 31, 1993, killings, despite being convicted of three counts of first-degree murder. He has lived on death row for 11 years pending appeals.

Separate juries found Lotter and Nissen guilty of killing Teena Brandon, a 21-year-old transgendered person from Lincoln who lived as a man; Lisa Lambert, 24, of Humboldt; and Phillip DeVine, 22, of Fairfield, Iowa.

The case shocked Nebraska and inspired the 1999 film “Boys Don’t Cry,” which earned Hilary Swank an Academy Award for her portrayal of Brandon.

Marvin Thomas “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 occurred.

Under the law, a person complicit in murder can be held just as responsible as the person who takes a life.

Nissen, who is serving three life sentences at the Lincoln Correctional Center, said his belief that the death penalty is unfair motivated his decision to recant.

“There’s somebody sitting on death row who doesn’t deserve to be there,” he said.

Many people believe Nissen’s testimony May 17, 1995, essentially put Lotter there. At the time, Nissen had been convicted of murder but was awaiting sentencing. He agreed to testify against Lotter, and prosecutors agreed not to seek the death penalty against Nissen.

On the stand, Nissen admitted he stabbed Brandon but said Lotter had fired all of the shots from a stolen .380-caliber pistol.

But suspicion has long existed that Nissen perjured himself.

Over the years, three jailhouse snitches who shared cells with Nissen have claimed he admitted to a more prominent role in the killings. In a 2003 Journal Star interview, Nissen gave a coy response when asked if he pulled the trigger, saying “maybe some day I might tell exactly what happened. … ”

During negotiations to obtain Nissen’s testimony, prosectors wanted their star witness to take a lie detector test before taking the stand. Nissen refused, and prosecutors eventually dropped the request.

James Elworth, now assistant director of the NCAA’s Committees on Infractions in Indianapolis, was an assistant attorney general in the early 1990s and lead prosecutor in both cases. When contacted Wednesday, Elworth would only say he had no concern about the truthfulness of Nissen’s 1995 testimony.

It remains to be seen what effect, if any, Nissen’s new version of events will have on Lotter’s case.

In the past, when Lotter appealed his conviction based upon the likelihood Nissen lied, judges dismissed the snitch statements as nothing more than hearsay. Nebraska Supreme Court judges even considered the possibility Nissen was the gunman when they rejected one of Lotter’s appeals in 2002.

“Lotter is a major participant in the case in either version,” Judge Kenneth Stephan said.

Now, Richardson County District Judge Daniel Bryan must consider whether to grant Lotter a new trial based upon Nissen’s own words. A hearing to submit legal briefs and documentation should take place next month.

Richardson County Attorney Doug Merz was not available for comment Wednesday.

As for why Nissen decided to change his story, he initially said he didn’t know, then he said, “I guess it just took me that long to come to terms with what I had done and who I am.”

Some might dismiss the latest account of the killings as another lie.

Nissen said he can’t control what others think, but he believes he has nothing to lose. He can’t be tried for the same crime twice, he said, nor does he think prosecutors will find a legal avenue to have him resentenced. He agreed he could be charged with perjury, but such a conviction won’t add to a prison term that’s already for life.

Josephine Potuto, law professor at the University of Nebraska-Lincoln, said that, hypothetically, prosecutors can take action against witnesses who recant their testimony. Often it depends upon terms of the agreement between prosecutors and witnesses and whether a conviction has been jeopardized.

Nissen, who does not have an attorney representing him, also said he has nothing to gain by telling the truth now. Lotter did not ask him to recant, he said, adding that the men have had no conversations or correspondence since shortly after their arrests on that long-ago New Year’s Eve.

Back then, the two were young ex-cons with a zeal for hard drinking in Falls City, a Southeast Nebraska community of 4,700.

In November 1993, Brandon, who had recently moved to Richardson County from Lincoln, fell into their circle of friends, dating a woman they both knew.

Lotter and Nissen befriended Brandon, but their friendship abruptly ended when they learned about Brandon’s biological gender. Angry over being duped, Nissen said, they assaulted, kidnapped and raped the 21-year-old Lincoln woman in the early morning hours of Christmas Day.

The men soon learned Brandon had reported the rapes. According to Nissen’s testimony, they killed Brandon to derail the rape investigation, and they killed Lambert and DeVine to eliminate witnesses to the murder.

Lotter testified at his own trial, calling Nissen a liar and denying any involvement in planning or committing the murders.

Since then, despite losing multiple appeals, he has maintained his innocence. What Nissen called rape Lotter has called consensual sex, albeit a failed attempt because he was too intoxicated to perform.

If not for Nissen’s testimony, Lotter believes he would be a free man.

Even the three judges who sentenced Lotter to death in 1996 said Nissen’s testimony clinched the conviction.

“It appears to this panel that without Marvin Nissen’s testimony the case against John Lotter was largely circumstantial and that there were some significant weaknesses in the evidence against Lotter,” the judges wrote in their sentencing order.

In fact, investigators found no fingerprints, footprints or tire tracks to link Lotter to the crime scene. A hair found on Brandon’s wrist wasn’t his. The only living witness besides the killer was Lambert’s 8-month-old son.

But witnesses saw Lotter in the home from which the murder weapon was stolen hours before the killings. And the knife used to stab Brandon had the name “Lotter” on the sheath.

Perhaps most damaging was the testimony that challenged Lotter’s alibi — that he was sleeping with his girlfriend at Nissen’s rented house in Falls City. Prosecutors said the shootings occurred between midnight and 3 a.m. Rhonda McKenzie, Lotter’s girlfriend, told jurors he got home at about 3:30 a.m. but told her to say he returned earlier if questioned by police.

Attorney Hutchinson said the case still hinged on Nissen’s testimony, and her client deserves a new trial.

As for Lotter’s reaction to Nissen’s affidavit, Hutchinson said “Mr. Lotter is relieved that he finally did tell the truth.”

 


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.

II. BACKGROUND

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 victims.

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 homicides.” 6  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 appeal.7  Lotter 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, not Lotter.

We upheld the district court's decision to deny the motion.12  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 of them.”

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 death.”

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

V. ANALYSIS

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 violations.24  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 the prosecution.31  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 before testifying.

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 opportunity.36  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 postconviction relief.

(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 constitutional claim.43  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 convicted.49  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 recanting testimony.52  “ ‘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 through violence.64  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 unconstitutionally coerced.

VI. CONCLUSION

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.

Affirmed.

FOOTNOTES

1.  See 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, § 29-2523(1)(e).

4.  See id.

5.  State v. Lotter, supra note 2, 266 Neb. at 771, 669 N.W.2d at 448.   See, also, § 29-2523(1)(h).

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).

9.  See Neb.Rev.Stat. § 27-804(2)(c) (Reissue 2008).

10.  State v. Lotter, supra note 8.

11.  See Neb.Rev.Stat. § 29-4116 et seq.  (Reissue 2008).

12.  See State v. Lotter, supra note 2.

13.  See § 29-4120.

14.  State v. Lotter, supra note 2, 266 Neb. at 773, 669 N.W.2d at 449.

15.  See id.

16.  Ortega v. Duncan, 333 F.3d 102 (2d Cir.2003).

17.  Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936).

18.  State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

19.  State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).

20.  State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).

21.  See State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993).

22.  Neb.Rev.Stat. § 29-3001 et seq.  (Reissue 2008).

23.  § 29-3001.

24.  See, State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007);  State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999).

25.  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).

26.  State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).

27.  Id.

28.  § 29-3001. See, also, State v. Dean, supra note 26;  State v. Sims, supra note 19.

29.  U.S. 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).

30.  Napue 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).

31.  See, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972);  Napue v. Illinois, supra note 30.

32.  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.

33.  United States v. Agurs, supra note 30.

34.  See Mooney v. Holohan, supra note 30.   See, also, United States v. Agurs, supra note 30;  Brady v. Maryland, supra note 32.

35.  See, 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).

36.  State v. Sims, supra note 19.

37.  State v. Ryan, supra note 24.

38.  State v. Sims, supra note 19.

39.  Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).

40.  Herrera v. Collins, supra note 39.

41.  See, 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 note 30.

42.  See 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., joins).

43.  See, 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).

44.  Luna v. Beto, 395 F.2d 35 (5th Cir.1968).

45.  Id. at 40 (Brown, C.J., concurring specially;  Gewin, Bell, Thornberry, Coleman, Ainsworth, Simpson, and Clayton, Circuit Judges, join).

46.  Ortega v. Duncan, supra note 16.

47.  See, 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).

48.  See, 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).

49.  Neb.Rev.Stat. § 29-2103 (Reissue 2008).

50.  Id.   See State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).

51.  See, id.;  State v. Dabney, 183 Neb. 316, 160 N.W.2d 163 (1968).

52.  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).

53.  Fout v. Commonwealth, 199 Va. 184, 192, 98 S.E.2d 817, 823 (1957).

54.  Herrera v. Collins, supra note 39, 506 U.S. at 401, 113 S.Ct. 853.

55.  See id.

56.  State v. El-Tabech, supra note 50, 259 Neb. at 529, 610 N.W.2d at 750 (Gerrard, J., concurring).

57.  Herrera v. Collins, supra note 39, 506 U.S. at 398, 113 S.Ct. 853.

58.  Id., 506 U.S. at 417, 113 S.Ct. 853.

59.  See id.

60.  See, 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).

61.  See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

62.  Tison 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.

63.  State v. Lotter, supra note 2.

64.  Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966);  Brown v. Mississippi, supra note 17.

65.  State v. Mata, supra note 18, 275 Neb. at 65, 745 N.W.2d at 277.

66.  Poindexter v. Wolff, 403 F.Supp. 723 (D.Neb.1975).   See, also, U.S. v. Vest, 125 F.3d 676 (8th Cir.1997).

67.  People v. Andersen, 101 Cal.App.3d 563, 161 Cal.Rptr. 707 (1980).

68.  Id.

69.  State v. Ryan, supra note 24.

McCORMACK, J.

WRIGHT and MILLER-LERMAN, JJ., not participating.

 

 

 
 
 
 
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