By Hans Sherrer
Las Vegas Tribune Exclusive
NBC Channel 3 (KSNV-TV) in Las Vegas broadcast Death in the Desert during its 11 o’clock news on February 29, 2016. Reporter Marie Mortera’s story was about the Kirstin Blaise Lobato case.
Ms. Lobato was convicted in October 2006 of charges related to the July 8, 2001 homicide of Duran Bailey in the trash enclosure for a west Las Vegas bank. Ms. Lobato asserts she is factually innocent, in her habeas corpus petition that is being reviewed by the Nevada Supreme Court.
There are many gravely serious problems with Mortera’s story. Those problems include:
—She fabricated non-existent “evidence” against Ms. Lobato in at least three instances;
—She made a number of misleading and/or deceptive statements;
—She spliced together audio from different parts of Ms. Lobato’s police statement to make them appear contiguous;
—She completely disregarded Ms. Lobato’s new evidence supporting her factual innocence; and,
—She neither reported on, nor questioned, Ms. Lobato’s prosecutor, William Kephart, during his interview relating to the evidence he has known about for more than 14 years, regarding Ms. Lobato’s innocence and his criminal conduct and extensive prosecutor misconduct detailed in Ms. Lobato’s petition. (Kephart is currently an Eighth Judicial [Clark County] District Court Judge.)
More than two weeks before Mortera’s story was broadcast, the Las Vegas Tribune reported in its Feb. 12-18, 2016 issue that the Clark County DA’s Office and Metro PD have known since 2001 that Ms. Lobato was not guilty of Bailey’s homicide.
Ms. Lobato gave an audio-recorded police statement at the time of her arrest. She described that prior to mid-June 2001 she used her pocketknife to fend off an attempted rape at a Budget Suites Hotel on Boulder Highway in east Las Vegas.
The following are eleven “problems” with Mortera’s story, in the order they were broadcast. The “Problem” following each excerpt summarizes what is wrong with Mortera’s commentary or Kephart’s statement.
1. Lobato statement: “I got out of my car, and he came out of nowhere and grabbed me from behind.”
Mortera commentary: “The recording is of then-18-year-old Kirstin Blaise Lobato describing to Metro investigators how a methamphetamine fueled trip to Las Vegas ended in mayhem.”
Problem: Misleading and deceptive. There is no evidence that methamphetamine had anything to do with the Budget Suites Hotel assault, or that Ms. Lobato was on a “trip to Las Vegas” when it occurred.
2. Lobato statement: “He came out of nowhere and grabbed me from behind. I cut his penis, I remember that.”
Problem: Deceptive. Viewers weren’t informed Ms. Lobato’s two sentences were spliced from different parts of her audio statement to make it appear they were together.
3. Lobato statement: “He was …he was crying.”
Mortera commentary: “‘He’ was Duran Bailey, a homeless man, brutally killed.” Problem: Complete fabrication. No evidence in Ms. Lobato’s statement or presented at trial stated that Bailey was the man who assaulted her at the Budget Suites Hotel.
4. Mortera commentary: “Lobato told police Bailey tried to sexually assault her near Boulder Highway in 2001, and to defend herself she pulled out a knife and cut him in the groin.”
Problem: Complete fabrication. Lobato did not tell police Bailey was her assailant; he didn’t physically match the description of her assailant, and she did not recognize Bailey when she was shown a photo of him.
5. Kephart interview: “I am given a task to present evidence that we have, uh, there, there certainly is no evidence that was, you know, uh, manufactured or anything like that. We just present what we have to the jury, and give the jury an opportunity to decide.”
Problem: False statements. Kephart’s lack of honesty could have been exposed by Mortera’s confronting him with the evidence in Ms. Lobato’s habeas petition, showing that the trial transcript documents Kephart used misstated evidence and used manufactured non-existent “evidence” during his opening statements and rebuttal argument to the jury.
Given the gravitas of Kephart’s position as the spokesperson for the State, the jury would be expected to rely on his falsehoods as true.
6. Mortera commentary: “Lobato’s tearful words were described as a confession.” Problem: Complete fabrication. Ms. Lobato’s statement was not “described as a confession” during Kephart’s opening statement.
ADA Sandra DiGiacomo’s closing argument; Kephart’s rebuttal argument; There was no testimony during her trial
that it was a confession.
7. Mortera commentary: “[Michelle] Ravell is Lobato’s surrogate mother and believes Kirstin was back in her home town at the time of Bailey’s killing, not in Las Vegas.”
Problem: Misleading and deceptive. It is not a partisan belief by Ravell that Ms. Lobato was “not in Las Vegas” when Bailey died. Ms. Lobato’s habeas petition includes new forensic evidence unrebutted by the State that Bailey died after 8 p.m. on July 8, 2001, a time when the State has publicly admitted she was in Panaca.
8. Mortera commentary: “So what could get Lobato, now in her 30s, out of prison? Proof of a different killer.”
Problem: Misleading and deceptive. Mortera doesn’t inform viewers that Ms. Lobato’s habeas case pending before the Nevada Supreme Court is seeking a new trial or dismissal of her charges. Her petition includes new forensic evidence proving it is physically impossible for her to have committed Bailey’s homicide.
Mortera’s statement is factually inaccurate because the actual perpetrator was identified in only 9 out of 300 known exoneration s in the U.S. in 2015 — 3 percent of cases.
9. Mortera commentary: “After a decade of courtroom motions, arguments, denials, reversals, and appeals, an offer from the Innocence Project to test DNA from the crime scene, along with a public petition demanding the use of DNA technology, is raising hope for freedom.”
Problem: Misleading and factually incomplete. The Innocence Project offered to pay for DNA testing more than five years ago. Judge Vega sided with the DA Office’s vigorous opposition, and denied Ms. Lobato’s petition for DNA testing in July 2011 — more than four years ago. The change.org petition that DA Steven Wolfson ignored was submitted to him almost three years ago in May 2013.
10. Kephart interview: “I stand behind what we did, um, I have, I have no qualms about what happened, and, and how we prosecuted this matter. I believe it’s completely, uh, justice.”
Problem: Deceptive and misleading. Ms. Mortera didn’t confront Kephart with the incidents documented in Ms. Lobato’s habeas petition of his alleged criminal conduct, his lying to Judge Vega, his misstating of evidence and manufacturing of non-existent “evidence” for the jury, and his serial misconduct that Ms. Lobato asserts deprived her of a fair trial.
11. Mortera commentary: “Lobato, her family, and supporters believe otherwise. They say DNA testing of evidence from the scene, such as a piece of gum that had blood on it, could lead investigators to someone else. All this as Lobato’s appeal moves its way through the courts.”
Problem: Deceptive and misleading. There is no basis in reality for Mortera to create the impression that Ms. Lobato is depending on DNA testing for her exoneration. Regarding “Lobato’s appeal,” Mortera’s story doesn’t make a single mention of Ms. Lobato’s habeas petition pending in the Nevada Supreme Court, which details why she asserts she hasn’t received “justice.” Mortera’s story could have had substance by reporting that Ms. Lobato’s petition includes: new evidence by more than two dozen witnesses supporting Ms. Lobato’s factual innocence; exculpatory evidence Kephart concealed from her during her trial; ineffective assistance of her trial and appellate lawyers, and it documents more than 160 instances of prosecutorial misconduct by Kephart during her trial.
The foregoing starkly demonstrates that Marie Mortera had scant regard for reporting the truth in Death in the Desert. Mortera’s fabrications have earned her the distinction of standing alongside Stephen Glass who produced stories with fabrications at the New Republic, and Jayson Blair who produced stories with fabrications at The New York Times.
Both Glass and Blair were terminated for their conduct. NBC Channel 3 (KSNV-TV) assisted Mortera by choosing to broadcast a story so divorced from the truth, that not even a gossip tabloid like the National Enquirer would have published it in print.
Hans Sherrer is President of the Justice Institute based in Seattle, Washington that conducted a post-conviction investigation of Ms. Lobato’s case, and promotes awareness of wrongful convictions. Its website is, www.justicedenied.org.