Saturday, September 05, 2009

Defendant convicted of murder in "Boys Don't Cry" case loses appeal from post-conviction proceedings in which he requested new trial based on co-defendant's perjury at trial. State v. Lotter, S-08-449 through S-08-451, 278 Neb. 466. Defendant was too late in brining to motion for new trial based on Nissen's perjury; fear of the death sentence is not enough to show prosecutorial coercion. Unlike postconviction relief, relief under Neb. Rev. Stat. § 29-2103 (Reissue 2008) {motion for new trial based on newly discovered evidence} is not strictly limited to constitutional claims. A motion for postconviction relief cannot be used to obtain, outside of the 3-year time limitation under Neb. Rev. Stat. § 29-2103 (Reissue 2008), what is essentially a new trial based on newly discovered evidence. Once a defendant has been afforded a fair trial and convicted of the offense for which the defendant was charged, the presumption of innocence disappears. Even if a defendant has not actually killed a victim, substantial participation in the felony Constitutional Law: Criminal Law: Witnesses: Death Penalty. A witness’ testimony is not the result of unconstitutional coercion simply because it is motivated by a legitimate fear of a death sentence

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