771 F. Supp. 2d 1074
D. Neb.2011Background
- Lotter was convicted on three counts of first-degree murder, three counts of use of a weapon to commit a felony, and one count of burglary, and sentenced to death for each murder and to 80 months to 20 years for weapons and burglary.
- Nissen testified for the State against Lotter, providing crucial but contested testimony linking Lotter to the murders while Lotter argued Nissen lied for a deal.
- The State relied on Nissen's testimony alongside other corroborating evidence (gun, knife, gloves, alibi inconsistencies) to secure Lotter's conviction and death sentence.
- An ex parte conference occurred among Judge Finn, the prosecutor, and Nissen's counsel; the Nebraska Supreme Court later held no due process violation due to lack of actual bias.
- Lotter pursued multiple postconviction challenges (1999, 2001, 2003, and 2008), culminating in state court denials and a federal habeas petition filed May 11, 2004, stayed and later resumed.
- The federal court applies AEDPA deference to state-court mer its decisions, reviewing claims with Strickland standards where applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex Parte conference violated due process? | Lotter asserts the conference tainted trial fairness. | Houston contends no due process violation given record and absence of actual bias. | Nebraska Supreme Court's ruling on no actual bias stands; AEDPA deferential review upheld. |
| Knowledge of perjury by Nissen and use of false testimony? | Lotter argues prosecutors knew or should have known Nissen lied at trial. | State argues the claim is procedurally defaulted and not proven as a constitutional violation. | Claim defaulted; no showing of contrary-to-established federal law; no habeas relief on this ground. |
| denial of continuance to depose Nissen before opening statements? | Continuation was essential to obtain deposition and prepare defense. | Court balanced interests; denial not a constitutional violation. | AEDPA deferential review applied; denial found not to violate due process. |
| Prosecutorial disclosure of Nissen agreement and related evidence? | Lotter alleges failure to disclose plea agreement details and exculpatory evidence. | Defense had access to transcript and could inspect the documents; no due process violation. | No constitutional violation; disclosures were timely or not prejudicial; no relief. |
Key Cases Cited
- Napue v. Illinois, 360 U.S. 264 (U.S. 1959) (due process violation for knowing use of false testimony)
- Ring v. Arizona, 536 U.S. 584 (U.S. 2002) (jury finding of aggravating factors required for death penalty)
- Beck v. Alabama, 447 U.S. 625 (U.S. 1980) (Beck not applicable where lesser offense considered appropriately)
- Williams v. Taylor, 529 U.S. 362 (U.S. 2000) (AEDPA deference framework and unreasonable application standard)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)