Testimony concluded this morning in a Richardson County District Court hearing to determine if death-row inmate John Lotter of Falls City received adequate representation during his trial for the murders of three people in a farmhouse near Humbolt.
The 1995 trial is not the only question before District Judge Daniel Bryan. An attorney representing Lotter has also entered into the record an alleged jailhouse confession in which a cellmate claims he was told that Lotter was not the shooter when Teena Brandon, Lisa Lambert and Philip Devine were killed in late December of 1993.
Jeff Haley, a former cellmate of Marvin Thomas Nissen, says in a statement that Nissen admitted to the murders. Haley states that Nissen, who is serving consecutive life sentences for his role in the murders, confided that he was the shooter, not Lotter.
Haley is serving a sentence for automobile theft.
The upshot of the hearing could be a new trial or new sentencing hearing for Lotter. Because of the volume of evidence to be considered, a ruling is not expected for several months
Lotter and Nissen were convicted after a series of events that concluded with the murders. The two Falls City men kidknapped, assaulted and raped Teena Brandon on Dec. 25, 1993. Brandon, a woman who posed as a man, had joined the two men's circle of friends after moving here from Lincoln.
The rape came after lotter and Nissen discovered Brandon's true identity. In the week following the rape, Lotter and Nissen plotted and attempted to carry out plans to kill Brandon, fearing that they would be arrested and she would testify against them.
On New Year's Eve 1993 Lotter and Nissen drove to the farmhouse where Brandon was staying. Both men stormed into the house. When they left, three people were dead.
Nissen was tried first and was found guilty of one count of first-degree murder and two counts of second-degree murder. He may have avoided Nebraska's electric chair by agreeing to testify at Lotter's trial.
In large part because of Nissen's testimony, Lotter was found guilty of three counts of first-degree murder and was sentenced to death.
Prosecutors presented a scenario where Lotter shot all three victims. They maintained that Nissen had stabbed Brandon before she was shot by Lotter.
In court Thursday, Lotter's attorney, Jerry Soucie of the Nebraska Commission on Public Advocacy, questioned Lotter's representation and the credibility of Nissen. In entering Haley's statement, Soucie said he could not "imagine anything more relevant" than determining who fired the killing shots.
Soucie, who has filed a motion to try to force Nissen to provide a deposition, challenged the representation Lotter received from Mike Fabian, his lead attorney. Fabian, from Omaha, testified Thursday morning.
Fabian, a high profile criminal defense attorney, said he and his associate provided Lotter with "the best representation we could under the circumstances."
In a matter-of-fact manner, fabian defended his actions in representing Lotter, saying that part of the strategy was to emphasize Nissen's "deviousness" and "ability to tweak the system."
Fabian said the more the prosecution tried to show the consistency of Nissen's statements, the more they showed "he was a liar."
When he took the stand, Lotter testified that he did not shoot Brandon, Lambert or DeVine. Fabian, who elicited those answers from Lotter, said he would not knowingly assist a client in delivering perjured testimony.
Soucie asked Fabian about trial judge Robert Finn. "I'm sure I disagreed with some of his rulings" but by and large the judge was cooperative, Fabian said. He cited "ill feelings" between Finn and special prosecutor Jim Elworth and said the defense "got the benefit of the doubt on several motions."
Much of the discussions in court Thursday centered around the timetable involved in Nissen's signing of an agreement that resulted in his testimony at Lotter's trial in exchange for sentencing consideration. Soucie tried to show that Finn was improperly involved in the sentencing agreement discussions and, because of the deal, Nissen's story could not be deemed credible.
Doug Merz, then Richardson County Attorney, testified Thursday afternoon about his recollections of the events that led to the sentencing agreement. He said the investigator who questioned Nissen before his testimony, as well as the prosecution team, believed Nissen's story because it could be corroborated with evidence. Merz said Nissen also provided new details which also could be corroborated. Merz said that Nissen gave no testimony that he(Merz) knew to be false.
The former county attorney said his responsibility was to determine the truth and purse the prosecution of those who had violated the law. He said he believes that responsibility was successfully carried out in relation to Lotter and Nissen.
Merz did acknowlege that his office had, years previous, prosecuted Nissen on a charge of false reporting.
Merz said that plea agreement discussions with Lotter's representatives had also taken place but had been fruitless.
A motion by the State of Nebraska for a directed verdict, which would in effect deny the plaintiff's case, was taken under advisement by Judge Bryan at the end of the day Thursday.
Falls City Journal, October 27th, 2000
