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.