By Hans Sherrer
Two years ago the Nevada Supreme Court heard oral arguments in Kirstin Blaise Lobato’s habeas corpus case. The Court’s ruling is being awaited concerning Ms. Lobato’s appeal of the denial of her habeas corpus petition by former Clark County District Court Judge Valorie Vega.
Ms. Lobato was convicted in October 2006 of charges related to the death of homeless Duran Bailey in a Las Vegas bank’s trash enclosure on July 8, 2001. She was sentenced to serve 13 to 35 years in prison.
Ms. Lobato presented an alibi defense during her trial that she was at her home 165 miles from Las Vegas when Bailey died. Her habeas petition filed in May 2010 includes new evidence by more than two dozen witnesses supporting her alibi defense.
Ms. Lobato’s habeas petition has 79 grounds for overturning her convictions. Eight of those are based on evidence her prosecutors committed at least 293 acts of gross misconduct that affected the outcome of her trial. Their misconduct — that common folk might call cheating — was intentional because they kept doing it over and over throughout her trial. Ms. Lobato argues her trial lawyers were ineffective for failing to object to her prosecutor’s misconduct, and for failing to make at least eight motions for a mistrial and dismissal of her charges.
The pervasive prosecutorial misconduct that resulted in the dismissal of criminal charges two weeks ago in a New Jersey case emphasizes the NSC can grant Ms. Lobato’s petition and bar her retrial based on her prosecutor’s extensive misconduct — without even considering any of her other legal issues. In New Jersey v. Zisa (Superior Ct. Bergen County, 8-23-16) the charges were dismissed with prejudice based on the prosecutor’s five acts of misconduct.
The almost three hundred acts of gross misconduct by Clark County Assistant District Attorneys William Kephart and Sandra DiGiacomo documented in Ms. Lobato’s habeas petition are dramatically more serious than the Zisa case’s prosecutorial misconduct. That misconduct was:
—Kephart lied during his direct examination of Las Vegas Metro PD Det. Thomas Thowsen that Ms. Lobato gave “her confession” to him — when she has never given any statement to even being in Las Vegas on the day of Mr. Bailey’s homicide, much less ever implicating herself in his death. [Ground 49] —Kephart suborned perjury from Las Vegas Metro Police Dept. Detective Thomas Thowsen during his direct examination of Thowsen regarding his investigation of Ms. Lobato’s case. [Ground 52] —Kephart committed fraud on the court by lying to Judge Vega that Thowsen’s testimony regarding an alleged search for medical reports was not hearsay, in order to prevent her from striking it as inadmissible, and that DiGiacomo aided and abetted Kephart’s fraud.
[Ground 52] —Kephart made at least twenty-nine references to non-existent evidence during his opening statement that he asserted would be presented by the prosecution to prove Ms. Lobato’s guilt — and none of that phantom evidence was presented during her trial. [Ground 65] —Kephart and DiGiacomo during their rebuttal and closing arguments, respectively, lied to the jury “that the fracture to the back of Bailey’s head was inflicted at the same time as his other wounds, because Medical Examiner Lary Simms’ testified that Bailey’s brain swelling that began at least two hours prior to death was “contemporaneous with the fracture” and it was his primary cause of death …” Kephart and DiGiacomo’s lying was an attempt to conceal from the jury that it is impossible Ms. Lobato killed Bailey because Simms’ testimony established Bailey’s fatal head fracture occurred at least two hours prior to when his injuries occurred that they alleged Ms. Lobato inflicted. [Ground 66] —Kephart improperly inserted himself as a 13th juror when he told the jurors during his rebuttal argument, that “he personally believes [Ms. Lobato] is guilty and the jurors should follow his lead and mark their ballots to convict her as he did.” [Ground 67] —Kephart and DiGiacomo during their rebuttal and closing arguments, respectively, smeared and disparaged three of Ms. Lobato’s alibi witnesses solely because they had not been called to testify by her lawyer during her first trial in 2002. [Ground 68] —Kephart and DiGiacomo lied during their rebuttal and closing arguments, respectively, that Ms. Lobato “said she had blood on her, her clothes were bloody and that she got in her car bloody, when there was no evidence introduced at trial supporting those fatally prejudicial claims.” [Ground 69] —Kephart made at least 130 “false, fabricated, and/or improper prosecution statements during rebuttal arguments that were used as a substitute for evidence of [Ms. Lobato’s] guilt the prosecution did not introduce during the trial …” [Ground 70] —DiGiacomo made at least 123 “false, fabricated, and/or improper prosecution statements during closing arguments that were used as a substitute for evidence of [Ms. Lobato’s] guilt the prosecution did not introduce during the trial …” [Ground 70] The sheer magnitude of the lying and deceitful behavior by Kephart and DiGiacomo detailed in Ms. Lobato’s petition can be considered shocking — and particularly so when it is considered her lawyers were so asleep at the wheel during her trial that they failed to make a single objection to any of that misconduct.
Ms. Lobato’s habeas petition and her briefs filed in the NSC explain why the failure of her trial lawyers to object to the avalanche of misconduct by Kephart and DiGiacomo was objectively unreasonable behavior by her lawyers, and there is a reasonable probability their failure to act rendered the jury’s verdict unreliable. Thus, it is warranted for the NSC to grant her petition and overturn her convictions due to the ineffective assistance of her trial lawyers.
Two sentences in the Zisa ruling are particularly applicable to Ms. Lobato’s case: “Considering the State’s lack of proofs and the weaknesses of its case, it is surprising this case was prosecuted to begin with. Looking to the trial itself, it is equally surprising a mistrial was not ordered at any point.” [Dismissal Order at 105] Ms. Lobato’s petition details the prosecution’s case against her was so weak they didn’t even introduce any evidence she was in Las Vegas on the day of Bailey’s homicide. Consequently, it is physically impossible she committed her convicted crimes. However, her lawyers inexplicably didn’t even give her judge the opportunity to consider a
motion for a mistrial based on the tsunami of prosecutorial misconduct — because they didn’t bother to make one.
Typically the Nevada Supreme Court issues a ruling within six months after oral arguments. So it is unusual that two years have passed since the arguments in Ms. Lobato’s case on September 9, 2014. It can be expected the reason the Nevada Supreme Court has not issued its ruling is because it is carefully evaluating the plethora of legal issues raised in her habeas. Without even looking at the other issues in Ms. Lobato’s petition, the concerted effort of Kephart and DiGiacomo to deny her a fair trial by engaging in serial misconduct can be considered enough by itself to justify the granting of her petition by the Nevada Supreme Court, and the dismissal of the charges against her.
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Hans Sherrer is President of the Justice Institute based in Seattle, Washington, that promotes awareness of wrongful convictions and conducted a post-conviction investigation of Ms. Lobato’s case. Its website is www.justicedenied.org.