Nevada
Supreme Court Justices Planted Fake Evidence
Against Kirstin Blaise Lobato
By Hans Sherrer
(June 1, 2009)
For Justice:Denied
magazine
Wishing
Petitioners To Death is a 2006 Cornell Law Review article by
law
professor Shari Lynn Johnson that documents how federal appeals court
judges falsified the facts in several capital cases to justify
upholding the defendant’s conviction and death sentence.
Professor Johnson knows the facts in the cases she writes about
because she was a lawyer for those defendants. Law professor Anthony
D’Amato similarly described in a 1990 Cardozo Law Review
article, The Ultimate Injustice: When a Court Misstates the
Facts,
that federal appeals court judges fabricated the facts they relied on
to justify denying the habeas corpus petition of Dr. John Branion.
Professor D’Amato knows the facts of the case because he
represented Dr. Branion. The biography Cardozo
(1990) by
Richard A. Posner describes that U.S. Supreme Court Justice Benjamin
Cardozo “defended the right of a judge to deliberately misstate
facts.” 1
Although it is a long-standing practice,
there is a low-level of public awareness that judges alter or conjure
out of thin air key “facts” to justify their ruling in a
case.
Relying
on what they described as an “admission” by 18-year-old
Kirstin Blaise Lobato, on February 5, 2009 three Nevada Supreme Court
justices unanimously affirmed her October 2006 conviction for
voluntary manslaughter in the death of 44-year-old homeless Duran
Bailey near the Las Vegas strip on July 8, 2001. The justice’s
opinion states, “based on Lobato’s admission, there was
substantial evidence that she committed the murder.” 2
(Lobato
vs. Nevada, No. 49087 (NV Supreme Ct, 02-05-2009),
Order of Affirmance, 4)
I am
aware of the facts of Ms. Lobato’s case. I have written several
lengthy articles for Justice:Denied magazine and a
book about
it – Kirstin
Blaise Lobato’s Unreasonable Conviction:
Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt
(2008). Yet, I am clueless as to what “admission” the
justices are referring to in their opinion. Particularly an
“admission” that is so compelling that by itself and to
the exclusion of all other evidence constitutes sufficient proof
of her guilt to justify upholding her convictions and sentence.
The
Clark County Medical Examiner determined from Bailey’s
autopsy that his cause of death was: “Blunt head
trauma. Significant contributing conditions include multiple stab and
incised wounds.” One of the incised wounds was a severed
carotid artery. Lobato’s statement when interrogated on July
20, 2001 by two LVMPD homicide detectives is a matter of public
record.
Did
Lobato “admit” to bludgeoning Bailey’s head?
No.
Did
she “admit” to stabbing him multiple times?
No.
Did
she “admit” to inflicting “incised wounds”
that included severing the carotid artery in his neck?
No.
Did
she “admit” to any involvement in his death?
No.
Did
she “admit” to having any knowledge of the location, time
or manner of his death?
No.
Did
she “admit” to knowing him or ever having met him?
No.
Did
she “admit” to ever having been to where he was killed?
No.
The
public record in Lobato’s case is crystal clear: she did not
make any “admission” to any involvement in Bailey’s
death.
The
lack of an “admission” of guilt by Lobato is consistent
with the crime scene DNA evidence that excludes her but implicates
one or more men as Bailey’s assailant; it is consistent with
the crime scene fingerprints that exclude her; it is consistent with
the bloody shoeprints leading away from Bailey’s body that are
2-1/2 sizes larger than her shoe size; it is consistent with the tire
tracks at the crime scene that don’t match her car tires; and
it is consistent with the confirmation by scientific tests that none
of Bailey’s blood was on any personal item of hers or in her
car. Lobato’s lack of an incriminating “admission”
linking her to Bailey’s death, and the lack of any
incriminating physical or forensic evidence is also consistent with
the fact there is no eyewitness or documentary evidence (gas station
receipt, surveillance video, etc.) she was in Las Vegas at any time
on the day of Bailey’s death. Contrasted with that lack of
incriminating evidence are the eleven eyewitnesses who saw her at her
parent’s home in Panaca 170 miles north of Las Vegas from very
early in the morning on the day of Bailey’s death until after
his body was found that night. Telephone records also verify Lobato
was in Panaca from that morning until after his body was found.
There
is perfect 100% consistency between the absence of an “admission”
by Lobato to any involvement in Bailey’s death, the physical
and forensic evidence excluding her from involvement in the crime,
and the eyewitness and telephone record evidence establishing she was
170 miles from Las Vegas on the day of his death.
The Justices Fabricated
Ms. Lobato’s Non-existent “Admission”
It
is known from public information that in their February 5 opinion the
three justices fabricated the evidence of what is in fact a
non-existent “admission” by Lobato to causing Bailey’s
death. Furthermore, the justices relied on that fabricated material
“fact” as their justification to rule that “based
on Lobato’s “admission,” there was substantial
evidence that she committed the murder.” The three justices who
signed the decision in Lobato’s case are Chief Justice James W.
Hardesty, Justice Ron D Parraguirre and Justice Michael L. Douglas.
Affirming
Lobato’s voluntary manslaughter conviction was a predicate for
the three justices to uphold her companion conviction of “sexual
penetration of a dead body.” The basis of that charge –
which is also known as the “necrophilia law” – was
an injury to Bailey’s anus the medical examiner determined was
inflicted after his death. Taking into consideration that Lobato made
no admission to being within 170 miles of Las Vegas at the time of
Bailey’s death – the following questions are presented to
further clarify what Lobato did not make an “admission”
to in her statement.
Did
Lobato “admit” to sexually penetrating Bailey’s
anus (or otherwise injuring his body) after his death?
No.
Did
she “admit” – since he was found face-up – to
turning his body over after he was dead?
No.
The
public record is clear Lobato made no “admission” to
sexually penetrating Bailey’s anus after he was dead, and there
is no physical, forensic or eyewitness evidence that she did so.
The
prosecution’s theory of Lobato’s prosecution is she alone
killed Bailey, and after doing so she alone committed the separate
act of sexually penetrating his corpse. Yet the actual record of
facts and evidence in her case supports that she was 170 miles north
of Las Vegas, and therefore could not have been at the crime scene or
had anything to do with Bailey’s death, and afterwards the
alleged rape of his corpse. 3
The Justices Falsified
The Presumptive Test Results On Ms. Lobato’s Car
The
three justices did not stop, however, with fabricating a non-existent
“admission” by Lobato to committing crimes against
Bailey. They also falsified the evidence of a key fact in another
issue they addressed in their affirmation of her convictions. Luminol
and phenolphthalein are imprecise and indiscriminate presumptive
“screening” tests conducted to detect the possible
presence of blood. The tests are so non-specific and non-selective
that they can produce a positive reaction to an iron or copper
bearing substance, a cleaning agent, vegetable matter, even
pollen, horseradish, urine and fecal matter, and they cannot
distinguish between animal
and human blood. Consequently, if a positive presumptive result is
obtained a scientifically precise test must be conducted to confirm
if the substance is human blood, one of the other many common
substances that can cause a positive luminol and phenolphthalein
result, or if the test returned a false positive.
The
following is an example to illustrate the relationship and difference
between a presumptive screening test and a precise confirmatory test.
Imagine that a photograph taken at a particular location on a
particular day shows a person at a distance that to an observer looks
like it possibly could be Joe. That is the equivalent of a
presumptive test. To determine if the person in the photo is Joe the
observer has the picture enlarged to show facial details, which
unmistakably reveals the person is not Joe. That is the equivalent of
a negative confirmatory test. Joe was not in the picture, and so the
picture has zero value in proving Joe was at that location on that
day. Anyone subsequently shown the original photo by the observer and
told that the indistinguishable person might be Joe would be misled,
because it had been conclusively proven the person in the photo was
not Joe.
After
Lobato’s car was impounded no blood was visibly apparent in it.
Luminol and phenolphthalein tests were conducted that registered
positive results for several spots. Subsequent scientific
confirmatory tests were negative for blood. The public record in
Lobato’s case is crystal clear that no blood was found in Lobato’s
car.
Lobato’s
lawyers made a pre-trial motion to exclude testimony about the
presumptive luminol and phenolphthalein tests. Lobato’s lawyers
argued she would be prejudiced by the jury being misled and confused
by testimony about the presumptive tests that had no probative value
because there was in fact no blood found in Lobato’s car. Trial
Judge Valerie Vega decided against Lobato and ruled the jury could
hear testimony about the presumptive tests.
During
Lobato’s trial the prosecution ensured the jury was exposed to
much more testimony concerning the presumptive tests conducted
because of the possibility there might be blood in her car, than
about the subsequent confirmatory tests that proved there was no
blood. The prosecutors relied on Judge Vega’s ruling to bombard
the jurors with testimony about the possible meaning of the
presumptive tests – even though the confirmatory tests
established it is a scientific fact as certain as 2+2=4 that there
was no blood in Lobato’s car.
Lobato
argued in her appeal to the Nevada Supreme Court that her right to a
fair trial was prejudiced by Judge Vega’s ruling and the
subsequent extensive testimony about the presumptive tests. In
disposing with that claim the three justices stated in their February
5 opinion, “Lobato argues that the district court abused its
discretion when it permitted the State to introduce evidence of
positive luminol and phenolphthalein tests for blood when the
subsequent confirmatory tests were negative. We disagree.” (p.
2. The justice’s made a similar statement on page 3.) However,
the justices falsified the key material fact they relied on as the
basis for their ruling. Contrary to the justice’s statement
there were no “positive luminol and phenolphthalein tests for
blood.” There were positive presumptive test results for
several spots that subsequent confirmatory tests proved were not
blood. It is a scientific fact the presumptive tests did not test
positive for blood: they either detected one of the many substances
other than blood that can produce a positive result, or they
registered a false positive.
The Justices Relied On
Evidence They Fabricated And Falsified To Deny Ms. Lobato A New Trial
A disinterested observer can look in every nook
and cranny of the record of Lobato’s case with a flashlight and a
magnifying glass and not find either the “admission” of guilt or the
“positive … tests for blood” that the three justices relied on to
affirm her convictions.
It
is known that appeals court judges can and do alter the evidence in a
case by fabricating and/or falsifying facts set forth in their
opinion to justify arriving at their legal decision. That is what
happened in the February 5, 2009 opinion jointly signed by the three
Nevada Supreme Court justices in Kirstin Blaise Lobato’s case,
and for which they bear equal responsibility.
C.J.
Hardesty and Justices Parraguirre and Douglas did not decide Lobato’s
appeal on the factual record of her case. Instead they fabricated a
non-existent “admission” of guilt to Bailey’s
murder, and falsified a key material fact to obscure the absence of
any blood evidence in her car. The justices not only relied on their
fabricated and falsified evidence as if it constituted real evidence,
but their opinion makes it plain that if they had not done so they
would have reversed Lobato’s conviction and ordered a new
trial.
A
police officer can face criminal prosecution for planting false
incriminating evidence against a person and filing a false report
based on that fake evidence. The three justices did the equivalent of
that by “planting” fake evidence against Lobato in their
opinion filed with the Clerk of the Nevada Supreme Court. Should they
be held to a lower standard of honesty, integrity and respect for law
and the public’s trust than a police officer? The justice’s
opinion can also possibly be considered as evidence they had a
meeting of the mind in the execution of a criminal conspiracy under
Nevada and federal law. 4
A minimum-wage paid high-school
dropout who lies about material facts during a court hearing faces
the prospect of criminal liability – should the three college
educated supreme court justices with law degrees who lied about
material “facts” in Lobato’s case be held to a
lower standard of personal accountability?
The
gravity of the justice’s action is compounded because they
relieved the Clark County District Attorney’s Office of the
need to introduce evidence during Lobato’s trial that the
justice’s considered sufficient to justify affirming her
convictions.
The
evidence and facts in Lobato’s case support that she had no
involvement in Bailey’s death or anything that happened
afterwards to his body. The three Supreme Court justices did not just
ignore the evidence and legal arguments favoring Lobato’s
actual innocence, but they fabricated and falsified the factual
record of her case to justify their legal rationale for affirming her
convictions and denying her a new trial?
The
three justices “wished” Lobato guilty by fabricating and
falsifying evidence in their opinion to make it appear to be true.
The justice's opinion can be described as nothing less than a
fraudulent document that is ensuring the continued imprisonment
of a woman who is demonstrably actually innocent.
5
About
the author: Hans Sherrer is the editor and publisher of Justice:Denied
– the magazine for the wrongly convicted, and the
author of
Kirstin
Blaise Lobato’s Unreasonable Conviction: Possibility
Of Guilt Replaces Proof Beyond A Reasonable Doubt
(2008).
Endnotes:
1 Richard A. Posner,
Cardozo: A Study in Reputation, University of
Chicago Press,
43. Another book, The World of Benjamin Cardozo,
relates that
before he became a U.S. Supreme Court justice, Benjamin Cardozo is
known to have falsified facts in at least two opinions while he was a
New York Court of Appeals judge to justify arriving at his desired
outcome. Richard Polenberg, The World of Benjamin Cardozo,
Harvard University Press, 1997. See the sections “Mary E.
Schloendorff and the New York Hospital” at 108-114; and,
“Hamburger v. Cornell, 1925” at 114-119.
2 The justice’s
made their statement about Kirstin Lobato’s admission in the
portion of their ruling that determined hearsay statements by LVMPD
homicide detective Thomas Thowsen were harmless error, because “based
on Lobato’s admission, there was substantial evidence that she
committed the murder.” (4)
3 The charge of “sexual
penetration” of Mr. Bailey’s dead body was based on the
prosecution’s assumption that Bailey’s anal area injuries
were caused by penetration of his anus by a knife after he was dead.
That assumption is disputable for two reasons. The first reason is
Dr. Michael Laufer testified as an expert for the defense that he had
seen many anal area injuries similar to those suffered by Bailey that
were caused by the crease of a person’s jeans jammed into their
anus when the person was kicked hard. Dr. Laufer conclusion was
supported by his testimony that the cutting and slicing wounds to
Bailey’s torso and neck were caused by scissors, and not a
knife as the prosecution asserted, and which they also asserted was
used to inflict the post-mortem wound to his anus. The second reason
is the “sexual penetration” charge is also known as the
necrophilia law, and the legislative record of when the law was
enacted clearly shows that the legislature intended for the law to
only apply to a sexual act on a dead body that would constitute
sexual assault on a live person. Even if a knife had been used to
penetrate Bailey’s anus, that would not constitute sexual
assault if committed on a live person, and so it did not qualify as a
violation of the necrophilia law. See, Hans Sherrer, Kirstin
Blaise Lobato’s Unreasonable Conviction: Possibility Of Guilt
Replaces Proof Beyond A Reasonable Doubt, The Justice
Institute,
2008, 21-23.
4 There is legal
support to consider that Chief Justice James W. Hardesty, Justice Ron
D Parraguirre and Justice Michael L. Douglas engaged in an unlawful
conspiracy under at least two provisions of Nevada’s conspiracy
law by their fabrication and falsification of the facts they relied
on to affirm Lobato’s convictions and deny her a new trial.
Nevada Revised Statutes 199.480 3(c) states:
3. Whenever two or
more persons conspire:
(c) Falsely to
institute or maintain any action or proceeding;
each person is guilty
of a gross misdemeanor.
and, NRS 199.480 3(f)
states:
3. Whenever two or
more persons conspire:
(f) To commit any
act injurious to the public health, public morals, trade or commerce,
or for the perversion or corruption of public justice or the due
administration of the law;
each person is guilty
of a gross misdemeanor.
Additionally, the three
justices may have criminal liability under the federal civil rights
laws for deprivation of Kirstin Lobato’s civil rights.
5. The Oxford English Dictionary is the most authoritative dictionary of the English language. It defines “fraud” as:
3. a. An act or instance of deception, an artifice by which the right
or interest of another is injured, a dishonest trick or stratagem.
That definition seems to fit the opinion of the three justices that negatively affected Kirstin Blaise Lobato.