The Nebraska Supreme Court on Friday grappled over whether death-row inmate John Lotter should get a hearing to consider if his intellectual level should keep him from being executed by the state.
“An evidentiary hearing is required in this case,” attorney Rebecca Woodman argued on one side.
She said an expert’s evaluation and testing of Lotter in 2017 showed sub-average intellectual functioning, an IQ score of 67 and deficits in adaptive behavior that have been present since childhood.
She said the remedy is for Lotter to get a hearing before a district judge and, ultimately, for his death sentence to be vacated.
On the other side, James Smith, senior assistant Nebraska Attorney General, said the time for defense attorneys to raise the issue had long since passed.
“Otherwise, you just keep coming back again and again,” he argued.
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Woodman said Lotter’s petition, which Smith pointed out was his fifth post-conviction challenge to his sentence, presented facts that, if proved true, demonstrate he is “intellectually disabled.” He would then be among a class of people for whom execution is categorically prohibited under Nebraska law and the U.S. Constitution and therefore “actually innocent of the death penalty.”
That prompted Justice William Cassel to inquire: “I’m a little puzzled by your use of terminology,” he said. “You referred to Mr. Lotter as being ‘actually innocent of the death penalty.’ Don’t we usually talk about guilt and innocence in connection with the crime that’s committed, not the penalty that may be imposed?”