POST: "Nevada Supreme Court reverses denial of appeal," by Stephen Jackson, published by The Wrongly Convicted Group on November 24, 2016. (Stephen Jackson is a public defender and Peabody award winning journalist.)
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BACKGROUND: See Wikipedia entry at the link below: "Kirstin Blaise Lobato is a Nevada woman who is serving time for the July 2001 murder and mutilation of Duran Bailey, a homeless man from St. Louis who was living in Las Vegas at the time of his death.[1] At her first trial in May 2002, she was convicted of first-degree murder and sentenced to 40 to 100 years in prison.[2][3] In a 2006 retrial, she was convicted of the lesser charges of voluntary manslaughter and sexual penetration of a dead body and sentenced to 13 to 45 years. Lobato's case gained significant notoriety due to the large amount of evidence that advocates for her release believe points to her innocence of the crime.[4] Prior to being accused of this crime, she confessed to another incident where she stabbed a man in the penis. In this previous incident, she claims that a man was going to rape her, and so she stabbed him in the penis. She told this to eight friends. The police did not charge her for this incident. However, when the police heard about this, they suspected her in the death of the homeless man. ACCUSATIONS:In May 2001, Kirstin Lobato, then 18, described an attempted sexual assault that supposedly took place at a Budget Suites hotel. Lobato stated that during the attempted assault, she pulled out a knife and mutilated her attacker's penis. She went on to tell several friends about the alleged attack in the following months.[1][6]On July 8, 2001, the mutilated corpse of Duran Bailey, a homeless man, was found on the opposite side of Las Vegas. Lobato was charged with the crime more than ten days later, after one of Lobato's friends informed police of her account of the sexual assault that supposedly occurred two months before. During a police interrogation, Lobato acknowledged stabbing a man in the groin, and police believed this constituted a confession to Bailey's murder, while Lobato claimed to be describing her attack.[7 FIRST TRIAL: While prosecutors expected Lobato to plead not guilty by reason of self-defense, Lobato denied committing the crime entirely; she even refused a plea deal offering a 3-year prison sentence on the charge of manslaughter.[8] She insisted that she was at home in Panaca, Nevada, nearly 200 miles from Las Vegas, on July 8, 2001, and her family confirmed that.[9] Her attorneys also attempted to discount her supposed confession. However, prosecutors contended that Lobato was a known methamphetamine user and that she killed Bailey during a dispute over sex and drugs. During the May 2002 trial, Lobato testified to her innocence,[10] and her attorneys brought in experts who also stated that Lobato could not have committed the crime based on physical evidence, but Judge Valorie Vega suppressed much of the experts' testimony.[11] In their closing statement, Lobato's attorneys compared her trial to the Salem witch trials.[12] After deliberating through the night, the jury convicted Lobato of first-degree murder. On August 27, 2002, she was sentenced to 40 to 100 years in prison.[3] APPEALS, SECOND TRIAL AND ONGOING LITIGATION: "Over two years after her conviction, on September 3, 2004, Lobato's conviction was reversed; the Supreme Court of Nevada argued that her attorneys were unable to cross-examine a prosecution witness, who was a woman whom Lobato was incarcerated with while awaiting trial. Her case was remanded for a new trial.[13] On October 6, 2006, she was convicted of voluntary manslaughter and sentenced to 13 to 45 years in prison.[4] Lobato's appeal of her conviction was denied by the Supreme Court of Nevada in October 2009. In May 2010, Lobato filed a writ of habeas corpus petition that asserted 79 grounds for a new trial. Among those was her claim of actual innocence based on new evidence discovered after her trial proving she was in Panaca, Nevada, during the time when Bailey was killed. Judge Vega denied Lobato's petition in June 2011. Lobato appealed that ruling to the Nevada Supreme Court on August 1, 2011. In February 2011 Lobato filed a post-conviction petition for DNA testing of crime scene evidence. The Innocence Project agreed to pay for the testing if Lobato's petition was granted. The petition was opposed by the Clark County District Attorney's Office, and denied by Judge Vega. Lobato appealed that ruling to the Nevada Supreme Court, which on January 12, 2012 dismissed her appeal on the basis Judge Vega's ruling was not appealable under NRS 176.0918. After Lobato's DNA testing petition was denied, an online petition has called for the Nevada courts to test the crime scene evidence in Lobato's case, claiming it can prove she is an innocent person.[6] A book about the case, entitled Kirstin Blaise Lobato's Unreasonable Conviction by Hans Sherrer was published in May 2008 by the Justice Institute, and a second edition in November 2010.[14] As of March 17, 2015 more than 53,000 copies have been downloaded at no charge from the website, Justice Denied.[15] Retired FBI agent Steve Moore, noted for his advocacy on behalf of Amanda Knox, has referred to the case documents in the Lobato case as, "...complete and utter bullshit."[1] After having been charged with misconduct and publicly reprimanded by the Nevada Commission on Judicial Discipline, Judge Vega,[16][17] the judge in both of Lobato's trials, did not run for re-election in 2014 and stepped down from the bench in January 2015.[17][18] On September 9, 2014 the Nevada Supreme Court, sitting En banc, heard oral arguments related to Lobato's habeas petition. The case has been "Submitted for Decision. En Banc",[19] and the Court's ruling is pending as of April 1, 2015."
https://en.wikipedia.org/wiki/
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GIST: Stephen Jackson explains the the Supreme Court decision: "Basically,
the court held that the trial court (Judge Valorie Vega) did not do an
adequate job fleshing out Lobato’s claims for relief. The court
specifically cited several areas where Vega should have ordered an
evidentiary hearing." Jackson notes that "The court
specifically cited several areas where Vega should have ordered an
evidentiary hearing. The court said that grounds 1–24 and 78 should have
been given more than a quick denial by Vega." Many of these grounds relate to important forensic issues, such as : Ground
1. New forensic entomology evidence that Duran Bailey’s time of death
in Las Vegas was after sunset on July 8, 2001, when the Petitioner was
170 miles away in Panaca, Nevada; Ground
2. New forensic pathology evidence that Bailey’s time of death was
after 8 pm on July 8, 2001, when the Petitioner was 170 miles away in
Panaca. Ground
3. New forensic entomology and forensic pathology evidence that
Bailey’s body did not have cockroach and other predator bites, which
establishes his time of death was close to discovery of his body in Las
Vegas, when Petitioner was 170 miles away in Panaca. Ground
4. New expert psychology evidence the Petitioner’s Statement describing
a sexual assault at an east Las Vegas hotel is not a confession to
Bailey’s murder at a west Las Vegas bank. Ground
7. New forensic pathology evidence that more than one person was
involved in Duran Bailey’s murder, and it excludes the Petitioner. Ground
8. New forensic pathology and crime scene evidence Duran Bailey was
alive when his rectum was injured means the Petitioner was convicted of a
non-existent violation of NRS 201.450. Ground
9. New forensic pathology evidence that on July 8, 2001, Bailey
experienced two attacks two hours apart and likely separated by a meal. Ground
10. New forensic pathology evidence related to the circumstances and
time of Bailey’s murder excludes the Petitioner as a perpetrator. Ground 11. New forensic science evidence establishes the Petitioner’s shoes could not have been worn by Bailey’s murderer. Ground
12. New forensic science evidence establishes the shoeprints imprinted
in blood on cardboard covering Bailey and on concrete leading out of the
trash enclosure were made by his murderer, and the Petitioner’s
shoeprints are excluded. Ground
13. New forensic science evidence excludes the Petitioner and her car
from the crime scene, and undermines the prosecution’s theory of the
crime. Ground
18. New forensic science, dental, and crime scene evidence the
prosecution’s theory was impossible that Bailey was hit in the mouth by a
baseball bat in the trash enclosure’s northwest corner, and fell
backwards and hit his head on the south curb. Ground
23. New forensic entomology, forensic pathology, forensic science,
crime scene reconstruction, psychology, alibi witness, dental,
third-party culprit, police perjury, and prosecution and police
misconduct evidence establishes the Petitioner is actually and factually
innocent of murdering Bailey and the post-mortem cutting of his rectum
on July 8, 2001.........Two grounds deal with police and prosecutor misconduct: Ground
21. New evidence LVMPD Detective Thomas Thowsen testified perjuriously
multiple times in an effort to falsely link the Petitioner to Bailey’s
murder. Ground
22. New evidence of police and prosecutor misconduct by prosecuting the
Petitioner when they had evidence the Petitioner did not murder Bailey
or cut his rectum after death. The
court also gave some weight to Lobato’s claim of ineffective assistance
of counsel, and remanded the motion back to the trial court for more
evidence on Grounds 38 and 40. Some grounds also relate to ineffective assistance of counsel; Those are: Ground
38. Petitioner’s counsel prejudicially failed to retain a forensic
entomologist and introduce expert entomology testimony about Bailey’s
time of death. Ground
40. Petitioner’s counsel prejudicially failed to retain a forensic
pathologist and introduce exculpatory expert forensic pathology
testimony about the medical evidence related to Bailey’s murder......... The
court repeatedly stated that an evidentiary hearing should have been
held. So, it seems like Lobato is going to get an evidentiary hearing in
front of a new judge. Judge Vega has (thankfully) left the bench and
can no longer preside over this case. It also cannot be overstate(d) that
the ruling was unanimous. No
timeline has been set, but expect the court to start ramping up pretty
quickly. We should know more on Monday, but rest easy knowing Kirstin’s
going back to court!"
The entire post can be found at:
https://wronglyconvictedgroup.wordpress.com/2016/11/24/kirstin-lobato-nevada-sc-reverses-denial-of-appeal/
A copy of the complete ruling is here.
