From: Make the Walls Transparent On June 4, 2009
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 (See, 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” of guilt 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 evidence of her guilt to justify upholding her convictions and sentence.
The Clark County Medical Examiner determined from Mr. Bailey’s autopsy on July 9, 2001 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. Ms. Lobato’s statement when interrogated on July 20, 2001 by two two LVMPD homicide detectives is a matter of public.
Did Ms. Lobato “admit” to bludgeoning Mr. Bailey’s head?
Did she “admit” to stabbing him multiple times?
Did she “admit” to inflicting “incised wounds” that included severing the carotid artery in his neck?
Did she “admit” to any involvement in his death?
Did she “admit” to being present when he was assaulted?
Did she “admit” to being present when he died?
Did she “admit” to having any knowledge of his death?
Did she “admit” to knowing him or ever having met him?
Did she “admit” to knowing anyone who knew him?
Did she “admit” to knowing any details of the location where he was killed?
Did she “admit” to ever having been to the location where he was killed?
The public record in Ms. Lobato’s case is irrefutably crystal clear about one thing: she has not made any “admission” to having any involvement whatsoever in Mr. Bailey’s death.
The lack of an “admission” of guilt by Ms. Lobato is consistent with the crime scene DNA evidence that excludes her but implicates one or more men as Mr. Bailey’s assailant; it is consistent with the crime scene fingerprints that exclude her; it is consistent with the bloody shoeprints leading away from Mr. 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 Mr. Bailey’s blood was on any personal item of hers or in her car. Ms. Lobato’s lack of an incriminating “admission” linking her to Mr. Bailey’s death, and the lack of any incriminating physical or forensic evidence is also consistent with the fact that there is no eyewitness or documentary evidence (gas station receipt, surveillance video, etc.) that she was in Las Vegas at any time on the day of Mr. 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 Mr. Bailey’s death until after his body was found that night. Telephone records also verify Ms. 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 Ms. Lobato to any involvement in Mr. 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 Ms. Lobato to causing Mr. 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 Ms. Lobato’s case are Chief Justice James W. Hardesty, Justice Ron D Parraguirre and Justice Michael L. Douglas.
Affirming Ms. 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 Mr. Bailey’s anus the medical examiner determined was inflicted after Mr. Bailey’s death. Taking into consideration that Ms. Lobato made no admission to being within 170 miles of Las Vegas at the time of Mr. Bailey’s death – the following questions are presented to further clarify what Ms. Lobato did not make an “admission” to in her statement.
Did Ms. Lobato “admit” to sexually penetrating Mr. Bailey’s anus or otherwise injuring his body after his death?
Did she “admit” to inflicting any injury to his anus while he was alive?
Did she “admit” – since he was found face-up – to turning his body over after he was dead?
There is no physical, forensic or eyewitness evidence supporting Ms. Lobato’s involvement in the alleged sexual penetration of Mr. Bailey’s dead body, and the public record is clear that she has made no “admission” to doing so. The justices, however, upheld her conviction of sexually penetrating Mr. Bailey’s dead body by relying on her phantom “admission” to causing Mr. Bailey’s death that they conjured to justify affirming her voluntary manslaughter conviction.
The prosecution’s theory of Ms. Lobato’s prosecution is that she alone killed Mr. 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 Mr. Bailey’s death, and afterwards his body’s alleged sexual penetration. 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 Ms. Lobato to committing crimes against Mr. 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 bearing substance, normal cleaning agents, vegetable matter, even pollen and horseradish, 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 in fact 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 Ms. Lobato’s car was impounded no blood was visibly apparent in it. Luminol and phenolphthalein tests were conducted that registered positives for the possible presence of blood in several spots. The scientific confirmatory tests were negative. No blood was found in Ms. Lobato’s car. That fact is a matter of public record in Ms. Lobato’s case.
Kirstin Blaise Lobato Book
Ms. Lobato’s lawyers made a pre-trial motion to exclude testimony about the presumptive luminol and phenolphthalein tests that detected several possible blood spots that the subsequent confirmatory tests proved were not blood. Ms. 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 Ms. Lobato’s car. Trial Judge Valerie Vega decided against Ms. Lobato and ruled the jury could hear testimony about the presumptive tests.
During Ms. 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 Ms. Lobato’s car.
Ms. 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 positive presumptive tests were not 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
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 Ms. Lobato’s appeal on the record of her case – but instead they fabricated a non-existent “admission” of guilt 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 Ms. Lobato’s conviction on multiple grounds and ordered a new trial.
The action of the three justices can be described as possibly criminal conduct. 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 “planted” false evidence against Ms. Lobato in their opinion that they filed with the Clerk of the Nevada Supreme Court. Should they be held to a lower standard of honesty, integrity and respect for the public’s trust than a police officer? Furthermore, their opinion can possibly be considered as evinvseal2-transdence the justices had a meeting of the mind in the execution of a criminal conspiracy under Nevada and federal law. 4
The gravity of the justice’s action is compounded because they relieved the Clark County District Attorney’s Office of the need to actually introduce evidence during Ms. Lobato’s trial that the justice’s considered sufficient to justify affirming Ms. Lobato’s conviction.
The evidence and facts in Ms. Lobato’s case support that she had no involvement in Mr. Bailey’s death or anything that happened afterwards to his body. The $64 question is what influence on the three Supreme Court justices could be so powerful as to cause them to not just ignore the evidence and legal arguments favoring Ms. Lobato’s actual innocence, but to fabricate and falsify material “facts” in order to justify their legal rationale for affirming her convictions and denying her a new trial?
The three justices “wished” Ms. Lobato guilty by fabricating and falsifying evidence in their opinion to make it appear to be true. Their creative evidence massaging ensured the continuing imprisonment of a woman who is demonstrably actually innocent.
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).
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 Ms. 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 Mr. 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 Mr. 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 Mr. 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 Mr. 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 Ms. 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 Ms. Lobato’s civil rights.
By Hans Sherrer
(June 1, 2009)