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John Lotter, 'Boys Don't Cry' Killer, Has IQ Too Low For Execution, Lawyers Argue

A court filing says the convicted killer has an IQ of 67, the equivalent of an average 8-year-old.

By Eric Shorey

Lawyers for John Lotter, the killer whose slaying of transgender man Brandon Teena was portrayed in the Oscar-winning film "Boys Don't Cry," say he shouldn't be put to death — because his IQ is too low. 

Attorneys for Lotter, who has been on death row for 22 years, filed a motion last week claiming his execution would violate a 2002 Supreme Court ruling against putting people with intellectual disabilities to death. 

The filing said a forensic neuropsychologist evaluated Lotter last year and found his IQ to be 67, the equivalent of an average 8-year-old, according to the Lincoln Journal Star in Nebraska.

Lotter had been sentenced to death for the 1993 killing of Teena and two witnesses, Lisa Lambert and Philip DeVine, outside of Omaha, Nebraska. Hilary Swank won an Oscar for portraying Teena in the 1999 film.

Lotter has maintained his innocence despite being convicted of three counts of first-degree murder. His attorneys have argued that since Lotter's accomplice, Marvin Thomas Nissen, had fired the gun killing Teena, Lotter should not be held accountable for the death, according to the Lincoln Journal Star. In 2007, Lotter unsuccessfully asked for a new trial after Nissen admitted to lying on the stand about who fired the weapon.

“The testimony I gave regarding the person who fired the gun was false,” Nissen's 2007 affidavit says. “I am the person who shot and stabbed Teena Brandon. I am the person who shot Phillip DeVine. I am the person who shot Lisa Lambert.

People with intellectual disabilities are at a higher risk for wrongful convictions and death sentences, according to the ACLU.

They "may be more likely to falsely confess to a crime because they want to please the authorities that are investigating the crime," the ACLU said in a report about the Supreme Court case. "They are less able than others to work with their lawyers to help to prepare their defense."

The IQ test is not the only factor for estimating a person's mental capacities. Neuropsychologist Ricardo Weinstein, who previously evaluated Lotter, interviewed his mother and foster mother, and dug into his trial and school records before diagnosing Lotter as intellectually disabled.

In order to consider the motion, Richardson County District Judge Vicky Johnson will now need to grant an evidentiary hearing.

Lotter and Nissen had raped Teena after discovering he was transgender, and killed him and both witnesses in hopes of getting away with it. Nissen was sentenced to life in prison for his involvement in the crimes.

[Photo: Nebraska Department of Corrections]

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