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'Boys Don't Cry' inmate's IQ too low to execute, attorneys say

John Lotter was sentenced to death for his role in the 1993 killings of Brandon Teena, a 21-year-old transgender man, and two witnesses.

LINCOLN, Neb. — Attorneys for a Nebraska death row inmate whose case inspired the 1999 movie “Boys Don’t Cry” say he should be ruled ineligible for execution because he has the intellect of a young child.

John Lotter was sentenced to death for his role in the 1993 killings of Brandon Teena, a 21-year-old transgender man, and two witnesses, Lisa Lambert and Philip DeVine, at a rural farmhouse in Humboldt, about 75 miles south of Omaha. Lotter has spent the last 22 years on death row.

John Lotter, center, is escorted from the Richardson County Courthouse in Falls City, Nebraska after being sentenced for the December 1993 murders of Teena Brandon, Phillip DeVine and Lisa Lambert on Feb. 21,1996.Eric Keith / St. Joseph News-Press via AP file

Lotter’s lawyers filed a motion last week stating that recent IQ testing showed that the 46-year-old is intellectually disabled and therefore can’t be put to death under a 2002 U.S. Supreme Court ruling forbidding the execution of the intellectually disabled, the Lincoln Journal Star reported.

Under Nebraska law, an IQ of 70 or below is presumptive evidence of an intellectual disability. Court records show that Lotter scored a 67 last year, which would be the equivalent IQ of an 8-year-old.

Neuropsychologist Ricardo Weinstein determined that Lotter qualifies for an intellectual developmental disability diagnosis after reviewing trial and school records, and interviewing Lotter’s mother, foster mother and a psychiatrist who worked with him as a child. Lotter scored an IQ of about 73 when he was 10 years old, according to Weinstein.

Lotter’s attorneys also cited a 2014 decision by the U.S. Supreme Court that rejected a strict IQ cutoff rule in Florida. They said the court found a consensus among medical experts that IQ test scores shouldn’t be read as a single number, but rather as a range that can fluctuate for many reasons.

Richardson County District Judge Vicky Johnson will need to grant an evidentiary hearing in order to consider the issue. If granted, the state can seek its own experts.

Lotter and another man, Marvin Thomas Nissen, raped Teena after finding out he was transgender and then killed him, Lambert and DeVine to silence the rape allegations, according to prosecutors. Nissen is serving life sentences for his role in the crimes.

Teena’s death is remembered as an important date in the history of U.S. transgender rights, and Hillary Swank’s film portrayal of him won her an Oscar for best actress.