10 YEARS AFTER MURDERS, QUESTIONS LINGER

BY JOE DUGGAN / Lincoln Journal Star

Tom Nissen steers the car again, trying to retrace a 10-year-old memory pushed into the shadows of his mind. The drive from Falls City to Humboldt unfolds in black and white. He's drunk, like he has been most days in recent months. John Lotter, whom Nissen has known for only a week, sits in the passenger side. The destination is a rented farmhouse, the hiding place of someone who has accused them both of rape. Then he stops as if hitting the pause on a VCR.
The 31-year-old sits in the visitor's room of the Lincoln Correctional Center. The mullet hairstyle that once reached down the back of an orange jail jumpsuit is gone, replaced by a short cut that's
thinning on top. A silver hoop pierces his left ear, and fleshy semicircles hang under his eyes.

He starts again. Back in the car, Nissen recognizes his own voice but can't recall the words. Does he remember telling Lotter they could leave no witnesses?

"No. But I very well could have."

Another pause. Now he's done. He won't tell what happened next. On May 17, 1995, at Lotter's murder trial, he did. On that day, in the words of the lead prosecutor, Nissen put the gun in John Lotter's hand.

In a chilling monotone, Nissen told the jury that after he drove to the farmhouse, Lotter kicked in the front door. Then Lotter shot Teena Brandon, Lisa Lambert and Phillip DeVine, all at close range, all in the head. Nissen admitted to stabbing Brandon, their accuser.

He didn't testify because it was the right thing to do. He got a deal, a judge's assurance he could spend his life in prison and avoid Nebraska's electric chair. Lotter denied everything and ended up with the death sentence.

At the Tecumseh State Correctional Institution about 50 miles southeast of Lincoln, Lotter still denies everything. He's 32 now and balding. A full beard covers much of his pale face.

He gives his version. He tells how prosecutors failed to produce physical evidence against him. How their circumstantial evidence amounted to weak statements from shaky witnesses.

But mostly, Lotter hammers one key point: Tom Nissen's trial testimony was a lie invented to save his worthless, murdering skin. Absent the lies, Lotter claims, he would have walked out of the Richardson County Courthouse eight years ago instead of onto death row.

"They made a deal with the devil to put me in here." • n n

Triple murders, especially in rural areas, make headlines. But several elements of the Humboldt case made it a national story, told and retold by journalists, magazine writers, a true crime novelist and a pair of independent documentary filmmakers. And their accounts, in turn, inspired an Academy Award-winning film seen by more people than all of the above.

At the center of the story was Teena Brandon, a 21-year-old who was born female but lived as a man and dated women in Lincoln.

Most of the relationships followed a similar pattern. Brandon swept women off their feet by treating them well, giving them gifts, flowers and romantic letters. Everything went fine until their admirer stole from them to pay for the gifts, or they learned Brandon's biological gender. In November 1993, Brandon left a string of legal problems and disillusioned girlfriends and headed for Richardson County.

The first stop: the home of Lisa Lambert, 24, the friend of a friend. But soon, Brandon started dating a strawberry blond beauty in Falls City by the name of Lana Tisdel. At about the same time, her sister, Leslie Tisdel, was dating Phillip DeVine, 22, of Fairfield, Iowa.
Included in Lana Tisdel's circle of friends were John Lotter and Tom Nissen. The men had met about a week before Christmas. They both had spent time in the joint on felony convictions, and they both liked to get drunk.

Everybody was friends for a time. But the mood changed when people learned of Brandon's gender after an arrest for check forgery led to the female side of the jail.

Events took a violent turn on Christmas Eve 1993. During a party at Nissen's house in Falls City, he and Lotter pulled down Brandon's pants, forcing Tisdel to acknowledge that Brandon was a woman. Not long after, Nissen punched and kicked Brandon in the bathroom. Then he and Lotter forced Brandon into a car and drove outside of town.
Nissen got in the back seat and told Brandon to give in, or be beaten senseless and raped anyway. After Nissen finished, Brandon later told police, Lotter climbed into the back seat and committed rape as well.

After getting out of the car, Nissen kneed Brandon several times in the belly and threatened worse if police were notified.
Despite the threat, a bloodied and bruised Brandon reported the assault to police a few hours later, about the time many Falls City residents woke to open Christmas presents. A doctor said the injuries were consistent with rape.

Three days later, authorities questioned Lotter and Nissen about the rape, then allowed them to go free.

And on the morning of New Year's Eve 1993, Anna Mae Lambert drove from her home in Pawnee City to the Humboldt farmhouse rented by her daughter Lisa. She wanted to drop off some things for her daughter and grandson Tanner, 8 months.

The baby's cries lured her inside. As she walked through the living room, she saw DeVine sitting on the floor, his back to the couch. Once she got to the bedroom, where Tanner was crying in his crib, she saw her daughter sitting in the bed and Brandon lying on the opposite end of it. All but the baby were dead. Lambert calmly dialed 911, then made a bottle for her grandson. Late that afternoon, police arrested Lotter and Nissen on rape charges at Nissen's home. Later that night, on the frozen Nemaha River near Falls City, authorities recovered a .380-caliber handgun and a knife wrapped in a pair of work gloves. "Lotter" was written on the knife sheath. Nissen had talked. • n n

On March 3, 1995, a jury found Nissen guilty of first-degree murder for Brandon's death and second-degree murder for the deaths of Lambert and DeVine. In the opening days of Lotter's trial in May, the prosecution called witnesses who saw him hanging out with Nissen the day before the shootings. Others saw Lotter in the houses from which the handgun and the knife were taken. And Lotter's own girlfriend testified he got home around 3 a.m. on Dec. 31 but told her to say he got back at 1 if the cops asked any questions.

Investigators found no fingerprints, no footprints and no tire tracks linked to Lotter at the crime scene.

A hair found on the wrist of Brandon was tested and proved not to be his.

The evidence was circumstantial -- until Nissen walked into the courtroom on the third day.

The night before Lotter's trial, Nissen agreed to testify. In exchange, District Judge Robert Finn assured Nissen he would not get the death sentence. Additionally, Nissen retained his right to
appeal, even after refusing the prosecution's request for a lie-detector test.

On the stand, Nissen gave this account:

He and Lotter both raped Brandon. He, not Lotter, did all the hitting and kicking. After learning Brandon had reported the rape to police, they immediately began plotting the murder. They even drove to Lincoln to find Brandon, where they planned to cut off the head and hands with a hatchet so the body couldn't be identified.

On the night of Dec. 30, Nissen drove them to the Humboldt farmhouse where Lana Tisdel's mother told them Brandon was hiding. On the way, Nissen told Lotter "if he shot Teena Brandon and there were other people around, he would have to kill them, too."

Once inside the farmhouse, Lotter shot Brandon in the head. Then Nissen stabbed Brandon, followed by a second head shot by Lotter. Next, Lotter shot Lisa Lambert as she sat in the same bed, clutching her baby. Nissen took the child from her arms, and Lotter shot her two more times.

DeVine, who had fought with his girlfriend and was staying with Lambert before taking a bus back to Iowa the next day, was ordered to sit on the living room couch. There, Lotter shot him twice. The jury convicted Lotter of three counts of first-degree murder. Afterward, several jurors said Nissen's testimony was crucial. • n n

Nissen's got a TV in his cell.

He's got three meals a day.

He doesn't work.

He spends time studying wicca and other nature religions. He writes the few family and friends who've stood behind him.

He has no parole date. His only chance at freedom would be a commutation by the state Board of Pardons.

"I'm not complaining," he said. "I pretty much believe I deserve everything I've got, good or bad."

He also said he regrets everything that happened. He had a lousy childhood and was a heavy substance
abuser, but blaming his decisions on outside factors would be a cop-out.

He said he's sorry about the lives lost that day in 1993. He's sorry about making Lambert's son an orphan,
about eliminating the promising future DeVine appeared to be building for himself at the Job Corps.

"I'm sorry that Brandon didn't get to finish growing up and he didn't have the opportunity to figure out what he really wanted in life,"he said. "He was robbed of the opportunity to be happy and accepted."

Several times, Nissen said, he has tried to write an apology letter to Brandon's mother.

"But I've never sent the letter because I've never gotten past the obstacle of saying `I'm sorry.' How do you say, `I'm sorry' for participating in the death of their child? How do you say sorry for that?"

The only way Nissen can demonstrate his sorrow, he said, is to not appeal his conviction. And except for the direct appeal for all first-degree murder cases required by state law, he has filed no others, according to the Nebraska Attorney General's Office.

The reason Nissen declined to discuss details of the crimes, he said, was because of Lotter's pending death row appeals. He doesn't want to hurt Lotter, he said.

Then he gave some cryptic answers that opened the door to the possibility he lied on the stand.

When asked point-blank whether he pulled the trigger on one or more of the victims, he replied, "I can't answer that.

"Maybe some day I might tell exactly what happened, but this is not the day." • n n

Lotter also has a TV in his cell. His mother and two sisters visit him regularly, and he recently began a friendship with a woman from the
West Coast that started, he said, when she saw the movie "Boys Don't Cry." He said he really doesn't have friends on death row and doesn't have contact with the general prison population. He spends many days in the legal library, trying to prove his innocence.

The essence of his argument: Tom Nissen framed him.

To support his position, he said the rape was really consensual sex. In fact, he said that despite his best efforts, he was unable to perform sexually and never penetrated Brandon.

In Lotter's words, Nissen's tale of hunting for Brandon in Lincoln becomes a simple visit to a friend. He pawned compact discs that day (a fact the prosecution used to refute his on-stand denial that he was in Lincoln the week after the rape) to buy gas for the return trip home and forgot about them.

What about the murder weapons?

Lotter's friend who owned the handgun testified that only Lotter came into his home the night of Dec. 30 and could have slipped into the bedroom and taken the gun.

Lotter maintains, however, that Nissen broke into the house and took the gun while Lotter chatted with the friend and his wife, a theory supported by a broken back door at the man's house.

Regarding the knife, Lotter said he borrowed it from his father and kept it in his car, where Nissen would have had easy access to it.

The prosecution estimated the murders occurred between 1 a.m. and 3 a.m. Lotter's alibi for that time frame:He was asleep next to his girlfriend, Rhonda McKenzie, on the living room floor of Nissen's house in Falls City. But McKenzie testified that Lotter came home at 3 a.m.

She lied, Lotter said. So did those who testified they heard Lotter threaten Teena Brandon.

"When it comes down to it, the only thing that's in this case is Nissen and me," he said. "And I've been spending the past 10 years trying to show this guy is lying."

He also wrote -- and mailed -- a letter to JoAnn Brandon.

"I said I was sorry for her loss, but whatever suffering she might be going through was not at my hands." • n n

All of Lotter's appeals have been reviewed by the state Supreme Court.

One of them objected to Nissen's deal with prosecutors. Lotter's attorney, Jerry Soucie with the Nebraska Commission on Public Advocacy, said the judge committed professional misconduct by having discussions with prosecutors to help broker the deal.

The high court agreed but said Lotter's attorney should have objected at trial, Soucie said. Lotter also has appealed decisions that barred evidence attacking Nissen's credibility.

For example, several former cell mates reported that Nissen gave differing accounts of the murder, including that he shot at least one of the victims. Another, Jeff Haley, gave a deposition in 2000 that said Nissen admitted to killing all three.

Haley said Nissen showed him crime scene photos from the Humboldt farmhouse while they shared a prison cell. As he flipped through each photo, Haley said, Nissen described in detail how he shot each victim.

"Whenever (Nissen) started shooting the first person, he said Lotter was saying, `What are you doing? What are you doing?' He was freaking out and running around and looking out the windows and that and going, `What are you doing,'" Haley said in his deposition.

Haley's deposition made no difference in Lotter's case after the high court ruled it was hearsay.

Finally, Soucie mentioned a prosecutor's report that further whittled Nissen's credibility. The report
came from Nissen's stepmother, Pam, who was living in Mississippi, and was relayed by staff in the Richardson County Attorney's office.

"She can just about bet that he did it (the murders), and he will do everything to get off. He'll fake, he's smart to make up stories, he manipulates and he's a good liar and is good at making
others think he's telling the truth," the report stated.

The report was not turned over to Lotter's attorneys before or during the trial, Soucie said.

Lotter has not exhausted his appeals. He still has the federal courts. And the U.S. Supreme Court may hear another involving the sentencing phase of his trial.

If he loses them all, Lotter predicted he will have another six years, at most, before his execution.

Upon learning that Nissen said he might one day give a full accounting of what happened in the Humboldt farmhouse, Lotter shook his head in disgust.

"When's that day going to be? When I'm in the chair, is he going to tell the truth?" • n n

Nebraska Solicitor General J. Kirk Brown pointed to 12 reasons supporting John Lotter's guilt: the 10 women and two men who convicted him.

They heard all of the evidence, they got to weigh the credibility of witnesses and they deliberated among themselves.

"In the end, there wasn't any reasonable doubt in the mind of the jury that convicted him," he said. Lotter had a solid defense team, an Omaha criminal defense attorney considered one of the best in the state. While the high court found the judge's involvement with the Nissen deal problematic, it ruled that it didn't merit a new trial for Lotter, Brown said. And, he said, nothing in any of his appeals proves Lotter wasn't with Nissen that night 10 years ago. "I guess I would have to say, to date, only Lotter believes that story." • n n

The passing of time often reveals the truth.

Was Lotter present in the farmhouse as three people died, which would be enough to make him guilty of
murder? Or did he pull the trigger seven times himself? Only two men know for sure, two men surrounded by cinder block walls and steel bars.

Maybe time will prove exactly what happened on Dec. 31, 1993, in a farmhouse south of Humboldt. Reach Joe Duggan at 473-7239 or jduggan@journalstar.com