By Hans Sherrer
Clark County District Court Judge Stefany A. Miley held a hearing and issued orders in Kirstin Lobato’s habeas corpus case in December 2016
when it was closed in the District Court. Ms. Lobato’s District Court case was closed in August 2011 when she appealed Judge Valorie Vega’s denial of her habeas petition to the Nevada Supreme Court. Ms. Lobato’s petition seeks to overturn her October 2006 convictions related to the homicide of homeless Duran Bailey in Las Vegas on July 8, 2001.
The Supreme Court issued its ruling on November 23, 2016. The ruling remanded her case to the District Court for an evidentiary hearing to
determine if Clark County Special Public Defender David Schieck provided ineffective assistance of counsel for failing to investigate and present forensic evidence that the Supreme Court determined likely would have resulted in her acquittal by her jury. Separately, the District Court was to consider issues related to new evidence she is actually innocent.
That ruling wasn’t the end of her case in the Supreme Court. Ms. Lobato and the State of Nevada both had the opportunity to file a motion to rehear the ruling. The justices also could have decided to modify their ruling. Her case would be in the Supreme Court until it relinquished jurisdiction, by the filing of its Remittitur of her case in the District Court.
Yet, while Ms. Lobato’s habeas case was closed in the District Court, the following happened: On December 1, 2016 a hearing was scheduled for December 20 to be presided over by District Court Judge Kerry Earley. Then on December 7, 2016 Judge Earley recused herself from Ms. Lobato’s case by stating: “As this Court is familiar with one of the parties, in accordance with Rule 2.11 (A)(2) and to avoid the appearance of impropriety and implied bias, this Court hereby disqualifies itself and ORDERS this case be REASSIGNED at random. Status Check Set for December 20, 2016, VACATED.”
On December 8, 2016 Ms. Lobato’s case was reassigned to Judge Miley. On December 12, 2016 a hearing was scheduled for December 14 to be presided over by Judge Miley.
On December 14, 2016 a hearing was held in Judge Miley’s courtroom during which she “advised it was going to request Mr. Barrick for re-appointment” as Ms. Lobato’s counsel in the District Court. A hearing was scheduled for January 4, 2017 regarding “appointment of
On December 20, 2016 a “Media Request And Order Allowing Camera Access To Court Proceedings” was filed. On December 23, 2016 Judge Miley issued an “Order for Production of Inmate Kirstin B. Lobato, BAC #74201.” Presumably so she will be present for the January 4, 2017 hearing.
All of the above was done while Ms. Lobato’s case remained closed in the District Court from her appeal to the Supreme Court in August 2011.
On December 28, 2016 the District Court Clerk filed the “NV Supreme Court Clerk’s Certificate/Judgment — Affd/Rev Part.” That opened Ms. Lobato’s case in the District Court, and allowed proceedings to be legally conducted regarding the Supreme Court’s ruling.
Judge Earley may have let herself off the hook by recusing herself on Dec. 7 before actually conducting a hearing or making any rulings in Ms. Lobato’s closed District Court case.
Judge Miley is a completely different story. Judge Miley disregarded the rule of law by: holding the hearing on Dec. 14 in Ms. Lobato’s closed District Court case; scheduling a hearing for January 4, 2017 when for all she knew Ms. Lobato’s case would still be closed at that time, and issuing orders in Ms. Lobato’s closed case. Judge Miley’s lawless conduct doesn’t bode well for Ms. Lobato that the law will be followed as her case moves forward.
Furthermore, all the “parties” involved in Ms. Lobato’s case are well known in Las Vegas legal circles. So it doesn’t seem possible Judge Miley is not familiar with the same person who Judge Earley’s familiarity with was the reason she recused herself “to avoid the appearance of impropriety and implied bias.”
The most obvious person Judge Earley was referring to is District Court Judge William Kephart, who continues to be directly and publicly involved in Ms. Lobato’s case. Kephart was the lead prosecutor in Ms. Lobato’s trial; while a Clark County Assistant District Attorney he wrote and signed the State’s opposition to the issues in Ms. Lobato’s post-conviction habeas petition that will be reviewed on remand by one of his fellow District Court judges; and while a District Court judge he has been an advocate for the State by publicly defending Ms. Lobato’s conviction in a television interview broadcast on NBC Channel 3 (KSNV-TV) in Las Vegas. Judge Kephart could even testify as a witness for the State during Ms. Lobato’s evidentiary hearing. Judge Kephart is an associate of every Clark County District Court.
Judge Kephart’s intimate ongoing involvement as an advocate for the State in Ms. Lobato’s case poisons the well of impartiality for any Clark County judge to fairly preside over Ms. Lobato’s case.
Will Judge Miley and every other Clark County District Court judge follow Judge Earley’s lead, and also recuse themselves “to avoid the appearance of impropriety and implied bias”?
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Hans Sherrer is President of the Justice Institute based in Seattle, Washington that conducted a post-conviction investigation of Ms. Lobato’s case. The Justice Institute promotes awareness of wrongful convictions, and maintains the world’s largest database of exonerated persons. Its website is www.justicedenied.org.
By Hans Sherrer