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Murder Convicts Challenge Nebraska’s Death Penalty Procedure

File-This Wednesday, Feb. 21, 1996 file photo shows John Lotter, center, being escorted from the Richardson County Courthouse in Falls City, Neb., after being sentenced to death for the December 1993 murders of Teena Brandon, Phillip DeVine and Lisa Lambert, a crime that inspired the movie "Boys Don't Cry". Attorneys for Lotter argue that he had a right to have jurors, not judges, weigh his fate when he was sentenced to death in 1996. The attorneys cite a U.S. Supreme Court ruling last year that struck down Florida’s death penalty process, saying it gave too much power to judges to make the ultimate decision. After that ruling, Delaware’s high court followed suit and threw out that state’s death penalty-determining method. (Eric Keith/The St. Joseph News-Press via AP, File)

John Lotter, center, being escorted from the Richardson County Courthouse in Falls City, Nebraska. Credit: Eric Keith/The St. Joseph News-Press via AP/ File

Omaha: A man convicted in the murder case that inspired the 1999 movie Boys Don’t Cry has joined a fellow death row inmate in challenging Nebraska’s three-judge method for determining death sentences.

Attorneys for John Lotter argue that he had a right to have jurors, not judges, weigh his fate when he was sentenced to death in 1996, the Omaha World-Herald reports. The attorneys cite a US Supreme Court ruling last year that struck down Florida’s death penalty process, saying it gave too much power to judges to make the ultimate decision. After that ruling, Delaware’s high court followed suit and threw out that state’s death penalty-determining method.

Lotter was condemned for his role in the 1993 killings of Teena Brandon, a 21-year-old woman who lived briefly as a man, and two witnesses, Lisa Lambert and Philip DeVine, at a rural Humboldt, Nebraska, farmhouse.

A similar appeal has been filed on behalf of Jeffrey Hessler, convicted in the 2003 rape and murder of 15-year-old newspaper carrier Heather Guerrero of Gering, Nebraska.

The Nebraska attorney general’s office has filed motions arguing that Nebraska’s sentencing scheme allows jury participation and is not identical to the one struck down in Florida.

In Nebraska when a defendant is convicted in a death penalty case, the jury that decided guilt also decides whether aggravating factors exist to justify the defendant’s execution. If the jury finds such, a three-judge panel is convened to determine whether the aggravating factors outweigh any mitigating factors in the defendant’s favor. The three judges also must determine if the death sentence is warranted and, if so, whether it is proportionate to the penalty imposed in similar cases.

The three judges ultimately determine whether the defendant gets death or life in prison.

Attorney Jerry Soucie, who has represented several Nebraska death row inmates, said Friday that he expects the state’s other eight death row inmates to challenge Nebraska’s method, too.

“This issue has been floating around a long time,” Soucie said.