Convicted Murderer Asks Supreme Court For New Trial

A convicted killer on death row was told by a judge he wouldn't get a new trial, but he's now appealing the decision.  The Nebraska Supreme Court heard arguments from both sides Tuesday Morning.  It's the case that inspired the 1999 movie “Boys Don't Cry”.

John Lotter was sentenced to death and Thomas Nissen was given life in prison for their roles in the 1993 murder of three people in Humbolt.

But now that new information has come out, Lotter wants a new trial.  Arguments from both sides were presented to the Supreme Court on whether that should happen.

The case was closed in 1996.  Both John Lotter and Thomas Nissen were sentenced for the deaths of Teena Brandon, Lisa Lambert, and Philip Devine.

In 1997, the case was reopened.  Nissen recanted, saying he was the one who pulled the trigger, not Lotter.

The star witness against Lotter was Nissen's testimony.  This is why Lotter's attorney says it undermines his conviction, and he should get a new trial.  “The recantation doesn't not touch on whether Mr. Lotter was present at the scene,” said Andre Barry, Lotter's Attorney. “But it definitely touches on who committed the murders.”

The State of Nebraska disagrees. They say his conviction should stand. Both men are guilty no matter who fired the shots.

“The only factual dispute raised by this 2007 affidavit is which of the two if them was the most active in carrying out these homicides…that potential dispute is irrelevant to Lotter's guilt,” said Solicitor General of the Nebraska Attorney General's Office, Kirk Brown.  

The state says they stand by Nissen's original testimony in Lotter's trial unless there's proof he was lying.

“The recantation itself isn't sufficient you have to have some evidence to support the credibility of that recantation,” said Brown.

Lotter's attorney argues there wasn't proof Nissen was telling the truth to begin with.  They said he had a clear motive to lie; so he wouldn't receive the death penalty. Now there's nothing for him to lose.

The state had no way of knowing if Mr. Nissen was telling the truth,” said Barry.  “No way of even attempting to verify it without administering a polygraph test and knew Mr. Nissen had failed one in the past and refused to take it.”

The Supreme Court has yet to decide if they will overturn the decision of the district judge.