Nebraska Puts Executions on Hold While It Seeks New Death Penalty Method

For more than 10 years, John Lotter has faced death in Nebraska's electric chair for the grisly 1993 triple murder that spawned the movie "Boys Don't Cry."

But the state Supreme Court made that sentence uncertain for Lotter and the nine other men on death row in its February ruling that electrocution — Nebraska's only means of execution — is cruel and unusual punishment.

Lawyers involved in those death-row cases are now asking if an inmate who is sentenced to die in the electric chair can be executed by another means.

Nebraska Attorney General Jon Bruning says yes.

"They're still sentenced to death," Bruning said recently. "Their punishment remains death and the punishment has not changed."

Attorneys for the Nebraska Commission on Public Advocacy — who represent many of the men on death row — disagree. Not only does the law specify electrocution, many of the actual sentencing orders specify that method, said James Mowbray, chief counsel for the commission.

Complicating the situation is that months after the court's action, the governor hasn't proposed a new execution method and the state legislature hasn't met to consider changing the law.

"If someone tells you with confidence that they know how this will come out, you should get an ounce of what they're smoking," said Bob Schopp, a law professor at the University of Nebraska-Lincoln who specializes in criminal law and capital punishment.

Gov. Dave Heineman says he doesn't want to rush. For one thing, he waited until the U.S. Supreme Court upheld lethal injection in April in a Kentucky case.

Heineman has asked Bruning, the Nebraska attorney general, to look into the possible methods of execution, a process he says could take several months. Lethal injection is the most likely, although firing squad, hanging and the gas chamber could be options.

The governor has the power to call state senators back for a special session to try to change the law this year. Heineman said that wasn't likely.

"They know that it would be pointless," said Sen. Ernie Chambers, the Legislature's staunchest death penalty opponent.

The longer the delay, said attorney Jerry Soucie, the more questions.

"The Legislature had an opportunity to do something this session and has elected not to," said Soucie, who works with the Nebraska Commission on Public Advocacy. "The governor could call a special session and has elected not to. How long can the Legislature and executive branch do nothing before the courts intervene?"

Meanwhile, Lotter remains on death row for his role in the "Boys Don't Cry" case. He was sentenced to death for killing Teena Brandon, Lisa Lambert and Phillip DeVine in a farmhouse near Humboldt after Brandon reported that Lotter and another man had raped her. Brandon was born a female but for a time lived as a man.

In a prison interview, Lotter said he doesn't buy suggestions that lethal injection is more humane than electrocution. A drug that paralyzes the body likely just hides the suffering, he said.

"You put a cover over it," he said. "How is that humane?"

"Being dead is dead."

He said he will continue to try to prove that his sentence should be overturned because Nissen changed his story last year and now says he, not Lotter, committed the murders. Nissen had earlier testified that Lotter fired all the shots. A county district court judge turned down Lotter's request for a new trial, but Lotter is appealing that ruling to the state Supreme Court.

Brandon's mother, JoAnn Brandon, said there's no doubt in her mind that Lotter was the killer and said she'd be angry if he avoids the death penalty because of a change in method. Lethal injection almost seems too humane, "like putting to sleep a cat or a dog," Brandon said.

"They didn't take any pity on the three people they killed," Brandon said of Lotter and Nissen. "They were cruel and unusual."