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Post by mikemarshall on Aug 7, 2016 14:12:00 GMT
The frame-up of Kirstin Lobato begins
Detectives Thowsen and LaRochelle began by 'conflating' the 'evidence' from various sources and trying to present it, by the use of selecting those parts that fitted in with their theory that Lobato was guilty, as if it all referred to the same event, the murder of Duran Bailey.
They treated her statement 'I didn't think anybody would miss somebody like that' as a 'confession' to Bailey's murder when in fact Lobato was referring to her attack in Las Vegas six weeks earlier.
They treated her admission that she had used a knife to stab at or slice at the penis of her attacker as a clear confession to mutilating Bailey's penis.
They treated her failure to report her attack to police as clear 'evidence' of her guilt.
They treated her assertion that her attacker was still alive when she left as being a blatant lie to cover her tracks.
They treated her admission that she was high on amphetamines at the time of her attack as being an admission that she was high on speed when she murdered Bailey.
They claimed that her admission that she was high on drugs at the time of her attack provided a motive for her to kill Bailey when she offered him sex for drugs and things somehow got out of hand. This 'theory,' spun out of whole cloth as it was, not only had no evidence in its favour but was purely hypothetical and lacked any plausibility, as we shall see. The whole idea that Lobato killed Bailey in 'a drug deal gone wrong' was simply an invented scenario to try and make a totally incredible case seem more plausible.
They ignored the fact that blood and urine samples taken from Lobato at the time of Bailey's death showed no presence of drugs, amphetamines or otherwise.
They ignored the fact that multiple witnesses testified to the presence of Lobato in Panaca at the date and time in question which of course made it physically impossible for her to have committed the crime.
They ignored the fact that phone records also showed that Lobato was in Panaca at the time of the killing and so could not possibly have been in Las Vegas to murder Bailey.
They seized on Lobato's admission during her interview that she had a baseball bat in her car not only as an explanation of how she was able to overcome a man like Bailey but also as an explanation for his head injuries. The detectives began to weave a theory that she had hit Bailey over or around the head with her baseball bat before beating and stabbing him and mutilating his penis.
That theory was shot to pieces when forensic analysis of Lobato's bat showed no evidence of blood, hair or any other bodily tissues from Bailey or anyone else. Lobato clearly could not have used her bat to hit Bailey but in spite of the fact that the detectives knew that to be the case they allowed the theory that it was used to be put forward by the prosecution in a court of law knowing that it was completely false.
They rejected the testimony of Lobato and numerous other witnesses that Lobato was not in Las Vegas on 8 July but insisted that she was there between 5 and 13th July. In spite of the fact that eyewitness testimony refutes that, that phone records refute that, the detectives and prosecution continued to maintain this entirely false claim, knowing that if they did not it would be almost impossible to persuade a jury to convict her. So, faced with these inconvenient facts, they simply lied.
They ignored the fact that both Lobato and her mother - one of the many witnesses testifying to her presence in Panaca at the time and date in question - passed a lie detector test.
They ignored the fact that Bailey had not been hit with a baseball bat but had, according to the expert analyis of forensic and medical experts, been punched and kicked. Lobato's hands were uninjured, with no signs of cuts, bruising, broken nails, or any other signs that would certainly have been present after such a vicious assault. They ignored the fact that the use of a baseball bat to hit Bailey was absolutely ruled out by forensic analysis and that 'the beating was more likely due to a pounding or punching type motion.'
They ignored the fact that Bailey was stabbed while he was lying down and displayed no signs of bleeding injuries while he was standing. This was established unequivocally by forensic analysis so, as Lobato's attacker was stabbed or sliced at when she was on the ground and he was standing, again that ruled her out as a suspect.
They ignored the fact that not a single item of DNA evidence collected from the crime scene matched Lobato's in any detail. Lobato's DNA simply was not there.
Frankly, from this point onwards the 'investigation' ceased to be an exercise in sloppiness, incompetence and laziness and became a conscious and deliberate attempt to frame an innocent woman for a crime which the detectives and prosecution already knew that she could not possibly have committed.
Any pretence at justice or proper investigation went out of the window and the whole case became simply an exercise in securing a conviction no matter how dishonest the means used to acquire one.
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The trial of Kirstin Lobato
Lobato's trial began 10 months after the death of Duran Bailey. The conduct of the trial by the prosecution was disgraceful and the conduct of the trial judge was, to put it mildly, deeply biased against the defendant.
As we shall see, the way in which the trial was conducted became a deliberate exercise in seeing to it that Lobato was convicted regardless of the evidence.
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The Trial of Kirstin Lobato:
Kirstin Lobato's trial began on 8 May 2002 with District Court Judge Valorie Vega presiding. The jurors (along with the public and the media) were NOT told a critical fact that might have affected their verdict. This fact was the prosecution offered Lobato a plea bargain whereby if she pled guilty to manslaughter she would receive a three-year prison sentence. She rejected the deal, saying indignantly that she was innocent and would not enter a false plea of guilty to a crime that she had not committed.
Turning down the plea bargain meant that Lobato now faced a MINIMUM sentence of 40 years in prison if she was found guilty. You would imagine that this would have led not only to strenuous attempts by the defence to have the case thrown out but to the judge adopting a very different attitude towards the conduct of the trial from the one which she in fact did adopt. She was not only not sympathetic towards the defendant; she demonstrated consistent bias and hostility towards her and a marked tendency to overrule defence objections and to sustain prosecution ones. This bias proved particularly toxic in terms of what Vega allowed to be entered into evidence and excluded from it.
At the trial the prosecution made much of Lobato's admission that she had fought off a would-be rapist by using a knife to stab or slice at his genital area. They added that her failure to report the assault implied a strong probability of her guilt and added that, even though Lobato claimed her attack had taken place six weeks earlier, it was simply too much of a coincidence that a knife should be used to attack a man's genital area in two separate incidents in the same city six weeks apart.
When faced with witnesses testifying that Lobato had told them about her attack some considerable time before the murder of Bailey, the prosecution adopted a variety of rebuttal strategies. One was simply to assert that they were mistaken about the date when Lobato had told them her story; another was to imply that they were lying to protect her; and the third, perhaps the most ridiculous of all the prosecution fantasies, was to suggest that Lobato had made up a story about an assault six weeks earlier in order to give her an alibi for the actual murder on 8 July.
They simply ignored the fact that when taken to the scene of Bailey's death, Lobato showed NO familiarity with that part of Las Vegas; that she had given DETAILED descriptions of where her attempted rape took place and had freely recognized and identified certain buildings and other aspects of the scene; and instead asserted that Lobato was lying about the details and had deliberately tried to pretend that an earlier assault had taken place at a different location.
The prosecution also claimed that Lobato had been high on amphetamines at the time she killed Bailey, citing Lobato's own admission during her interview by the police that she had been drugged up on them at the time she fought off her assailant in a different part of Las Vegas six weeks earlier but claiming that she had deliberately falsified the time and place of the assault as a cover for her murder of Bailey.
The prosecution claimed that Lobato was high on drugs when she murdered Bailey even though both medical evidence and the testimony of eyewitnesses showed that for a while prior to 8 July she had actually been 'clean' of drugs.
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The double false confession strategy
Their two 'star witnesses' were both highly suspect. One was Johnson, who had already made false and defamatory statements about Lobato on two previous occasions, her second 'account' being more inlammatory and untrue than the first. The other was an extremely dubious woman by the name of Korinda Martin.
Martin was a jailhouse informant, what is known in slang as a 'snout,' a 'lag' or a 'snitch.' She claimed that when both she and Lobato were interned at the Clark County Detention Center, three days after her arrest, Lobato told her on 23 July that she had murdered Bailey. According to Martin, Lobato had 'taken pride' in giving the women 'graphic descriptions of how she killed and mutilated him.'
Martin's account of what she claimed Lobato told her is highly colourful and fascinating for its total inaccuracy about the details of the crime. All the genuine facts she gave were published in the Las Vegas Review-Journal article on 25 July, two days after she claimed to have met Lobato.
"She was boasting about it," Martin claimed.
She mentioned one alleged conversation with Lobato in which she claimed that Lobato had said "Yeah, I did an overkill, but he deserved it."
Martin claimed that Lobato made that particular comment after prosecutors had filed an additional charge against her - not simply or murder but of 'sexual penetration of a dead human body.'
Martin also said that in 'other conversations' Lobato had admitting cutting off Bailey's penis and stabbing him in the anus. In yet another conversation - Martin certainly seemed to paint Lobato as talkative and loud-mouthed and quite happy to make all kinds of bizarre and inflammatory boasts irrespective of the long prison sentence she was facing - she claimed that Lobato had told her that she was going to avoid being convicted for murder by making a false claim that Bailey had tried to rape her.
At that point, Martin claimed, she felt a sense of public duty and contacted the authorities because, in her own words, "I didn't feel that was right.
She also claimed that Lobato knew Bailey, had deliberately approached him on West Flamingo Road because she wanted amphetamines.
"She referred to him as Darrin," Martin claimed.
This particular new 'information' was only presented at the trial and Lobato's defence counsel immediately challenged her about it.
"You've never mentioned 'Darrin' before today, have you?" Martin was asked during the defence counsel's cross-examination of her.
"When I was being interviewed? No," the witness replied.
Martin also denied that she had read about the case from accounts in the news (in spite of the fact that its details were contained in the local paper which was freely available to inmates and widely read by them) and made the additional claim that Lobato had removed all items about the case in the newpaper before the other inmates had a chance to read them.
The rest of her account is wildly untrue, including in particular the claim that Lobato boasted that she had 'amputated' Bailey's penis and pushed it 'down his throat.' In fact, his penis was thrown away and found lying underneath some rubbish near his body. Martin also claimed to have kept a 'log' of Lobato's boasts which she completely failed to produce in court, probably for the very good reason that it never existed.
Not a single other prisoner at Clark County testified to hearing Lobato ever make these load and boastful claims, in spite of the fact that Martin claimed that she had boasted about her deed in front of a considerable number of other inmates.
In the absence of any hard evidence against Lobato, the prosecution had to rely heavily on the 'double false confession' strategy. They not only presented Lobato's response during the initial interview that she 'didn't think anybody would miss somebody like that' as a confession to Bailey's murder but regarded Martin's 'testimony' about Lobato's alleged 'boasts' to her in Clark County about killing Bailey as a second 'confession.'
The strong probability is that Martin was either put up to making her testimony by the prosecution or else decided to make up the story in an attempt to obtain a reduced sentence. At the time Lobato was detained in Clark County, Martin was also there awaiting sentence. She was a nursing assistant who had robbed one of her patients. In an attempt to obtain release, she forged a number of letter to a former inmate called Brenda Self, asking Self to mail them on to the sentencing judge. The letters were written as if they had been written by Self, who was now in a wheelchair, and asked that Martin should be given a light sentence and be released to care for her. These letters were sent to Self in an envelope with the Clark County address and Martin's prisoner ID number.
These letters, in spite of the objections of the prosecution, were made available to the defence team. Immediately one of Lobato's lawyers not only asked the prosecution if they had made a deal with Martin in return for her testimony (which they denied of course; how truthfully is open to question) but also asked Martin if she had written the letters purporting to be from Self. Unfortunately the defence lawyer's question to Martin, though her answer was given under oath, was (at the ruling of the trial judge) asked out of hearing of the jury. He showed her the letters and she claimed not to recognize them and denied having sent them. Later, following Lobato's conviction and sentencing, a Las Vegas police document examiner looked at the letters and established conclusively that they were written by Martin.
The defence wanted to have these letters admitted as evidence and testimony about them made available to the jury. In spite of their obvious relevance to Martin's credibility and truthfulness, the prosecution requested that not only should they be excluded as evidence but that testimony concerning them should be barred from the jury. Their argument was that the letters were 'extrinsic,' and had no direct bearing on the question of Lobato's guilt or innocence. The trial judge, Valorie Vega, with the habitual bias she displayed against Lobato throughout the trial (and indeed subsequently) accepted the prosecution argument and barred them. The jury remained completely unaware of the existence of these letters or of their direct bearing on the truthfulness and credibility of Martin as a witness.
Later, when the fact that Martin had perjured herself was made known to Clark County prosecutors, they simply ignored the evidence and refused to prosecute her for perjury. The only logical explanation for their behaviour is surely that they had known all along that she was lying; that they had encouraged her to lie about Lobato to secure a conviction; and they feared that if the truth was known it would expose them as having been involved in a corrupt bargain to obtain a false conviction of a woman whom they knew perfectly well was innocent.
Martin also lied on oath to the jury during the trial, claiming to be a nurse when in fact she had never been more than a nursing assistant and even that certification had lapsed. The reality is that when Lobato was on trial, Martin did not possess any nursing-related qualifications or credentials and she simply lied under oath. Naturally she was not prosecuted for perjury.
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The character assassination of Kirstin Lobato
It's fairly obvious that Lobato was not a model citizen. She certainly had been a heavy user of amphetamines, had admitted being heavily under their influence at the time of her assault in May, had been an 'exotic dancer' (though she claimed to have done that on only two occasions) and had been sexually promiscuous with both men and women,
According to other claims, she had occasionally traded sex for drugs, occasionally worked as a stripper and had acted as an 'enforcer' for drug dealers, beating up 'customers' who owed them money.
The prosecution presented an even more colourful picture, claiming that she was a person with low morals, a criminal, a heavy drug user who (even though there was no evidence for this claim and it was indignantly denied by Lobato herself) traded drugs for sex.
The prosecution lawyers argued that Lobato offered Bailey sex for drugs, he then failed to keep his side of the bargain so Lobato killed him. Apart from the fact that there was no evidence for this purely speculative hypothesis, Bailey had semen in his anus which hardly equates to his having had sex with Lobato and, in addition, there was no evidence from his DNA that he had engaged in sexual activity on 8 July, with Lobato or anyone else. So, purely on the basis of speculation, a picture of Lobato as a crazed, promiscuous druggie willing to exchange sex for drugs and then killing Bailey in a frenzy when he failed to deliver, was presented to the jury and, astonishingly, believed by them.
Even if all the other assertions about her were true - beside the murder accusation of course- (and Lobato only admitted to being an amphetamine user and having twice worked as an 'exotic dancer) it is a long way from that type of behaviour to the commission of cold-blooded murder. Bailey's death may have happened anyway from his head injury but the frenzied attack upon him was calculated and required considerable time to carry out, as did the attempt to conceal his death afterwards.
And of course even the most unpleasant characters are still entitled to the presumption of innocence which clearly did not happen in Lobato's case.
Even the area where she lived - Panaca in Lincoln County - was held against her. It was an area with a bad reputation and several members of the jury sent Judge Vega notes stating that they were afraid of Lobato's family, who were sitting in the courtroom for their daughter's trial, BECAUSE they lived in Panaca and Lincoln County and their presence 'frightened' them.
This 'fear' clearly influenced the jury into believing that Lobato was a character who was entirely capable of committing an act of violent murder.
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Speculation compounded with lies
The prosecution plumbed the depths of desperation even more deeply, not only resorting to speculative fantasies without a shred of evidence in their favour but actually telling downright lies to try to secure a conviction.
The prosecution case was that Lobato had stabbed Bailey and that he had then fallen to the ground, after which she had hit him repeatedly with the baseball bat that she admitted keeping in her car for protection.
This claim was not simply speculative but entirely false. It was directly contradicted by the autopsy report and by the testimony of forensic experts.
Clark County Chief Medical Examiner Simms testified that Bailey's injuries (33 in total) included 'multiple fractures on both upper and lower jaws,' 'six teeth knocked out' and 'skull fractures.' He also testified that Bailey's injuries were inconsistent with those that would have been inflicted by a baseball bat. In his own words, Bailey 'didn't have any skull fractures that were depressed like, you know, a bat would depress somebody.'
In fact, Simms testified under cross-examination that Bailey's skull fractures and the bleeding that resulted from them were more plausibly explained by the impact of his head striking the concrete ground where his body was later found.
Thomas Wahl, a technician at the Las Vegas crime lab also testified in relation to Lobato's baseball bat that “There was no blood, hairs or tissue recovered from the aluminum baseball bat or detected on that item.”
Even if Lobato had washed Bailey's blood off the bat, modern crime techniques would have been able to have detected at least trace residue and its presence. So the evidence of both Simms and Wahl directly excluded Lobato's baseball bat as a possible weapon.
The defence lawyers also called in forensic scientist George Schiro, associated with the Louisiana State Police Crime Laboratory and who in 2004 became the Chair of the National Association of Forensic DNA Analysts and Administrators. Schiro had worked almost exclusively with the police and Lobato's case was only the fourth in which he had agreed to testify as an expert witness for a defendant, compared with appearing for the prosecution in over 100 cases.
Schiro wrote in his report that “When a person is bleeding and repeatedly beaten with a long object, such as a baseball bat or tire iron, or is repeatedly stabbed using an arcing motion, then cast-off blood spatters corresponding to the arc of the swing are produced ...The confined space of the crime scene enclosures and the lack of cast-off indicate that a baseball bat was not used to beat Mr. Bailey. The beating was more likely due to a pounding or punching type motion.”
In other words, Bailey was not struck with a bat or any other object, but almost certainly by someone's fist. The viciousness of the beating inflicted on Bailey would certainly have led to damage on the assailant's hands with clearly visible wounds or bruises. No such signs of bruises or wounds were found on Lobato's hands.
The analysis of the ‘blood splatter patterns’ by Schiro also excluded Lobato as a possible suspect. Schiro declared: “The photographs demonstrate numerous blood spatter patterns. There is no documentation of blood spatter above a height of 12 inches on any of the surrounding crime scene surfaces. This indicates that Mr. Bailey received his beating injuries while lying on the ground. The photographs of his pants also do not indicate the presence of any vertically dripped blood. This indicates that he did not receive any bleeding injuries while in a standing position.”
This clearly shows that Bailey was stabbed while he was lying down rather than, as the prosecution claimed, that Lobato stabbed him while he was standing up. Lobato actually said in her statement that she 'was laying down' and stabbed upwards at her assailant as he stood above her with his trousers down. If he had bled from such a wound, the blood would have dripped down on to his trousers but, as Schiro discovered, there was no “presence of any vertically dripped blood.” The analysis of the 'blood splatter' pattern shows clearly that the incident Lobato described is an entirely different one from the incident during the course of which Bailey died. .
The evidence is clear; Bailey's skull fracture happened when his head struck concrete, probably after being punched or pushed by a physically strong person. Lobato's bat was not used to hit Bailey or anyone else. Schiro's analysis showed not only that Bailey had not been hit with a bat but also that his injuries were inflicted while he was being beaten and stabbed while lying in a prone position.
Although the testimony of Simms and Wahl was allowed, the prosecution objected to the evidence of Schiro, claiming that they had not received sufficient notification of his testimony from Lobato's lawyers. The real reason of course was that even to the fairly hostile jury it would have demonstrated beyond any reasonable doubt that whoever may have killed Bailey, it was not and could not have been Lobato.
Judge Vega, with her consistent bias against Lobato, refused to allow the jury to hear the testimony of Schiro, which would have excluded Lobato as a possible perpetrator.
Yet again the truth was excluded from the trial while lies, innuendo and speculation were the hallmark of the prosecution case.
The frame-up was gathering pace and now attained an even more bizarre level of duplicity.
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More lies - and the deliberate exclusion of alibi evidence
The prosecution, knowing that there was no evidence against Lobato that linked her to the death of Bailey, forensic or otherwise, simply grew increasingly desperate.
They knew that in order to make even a remotely plausible case for her having killed Bailey they needed to establish her presence in Las Vegas on a speed-fuelled binge for the three days before Bailey's murder.
The prosecution declared, without the slightests shred of evidence, eye-witness testimony or any other kind of supporting proof, that she was in Las Vegas and high on drugs from at least 5 July to 13 July when her father picked her up and took her back home to Panaca.
Lobato admitted during her interview on 20 July that she had been on a non-stop drug binge for a week before and a week after the attempted rape in May. Bailey was of course not murdered till 8 July which meant that if she had been referring to an attack by Bailey, which she was clearly not. then between 1 and 15 July she would have been high on drugs and being in Las Vegas at the time of his death, between 4.30 a.m. to 12.30 p.m.
The truth is that she was not in Las Vegas during that period; she had moved back to her parent's home in Panaca on 2 July, and numerous people testified to her presence in Panaca between 2 and 9 July, including early and late morning, afternoon and evening of 8 July.
Nor did any of these eye-witnesses report her as being high, which is consistent with the blood and urine samples from the relevant period, taken on 5, 6 and 7 July.
The fact that Lobato was not high on drugs at the time of Bailey's death; that multiple witnesses testified that she was not in Las Vegas at the time; the fact that phone records prove that she was not in Las Vegas at the time; all these facts should have immediately shown to the judge and jury that the prosecution was simply wrong and that it was actually physically impossible for Lobato to have committed Bailey's murder.
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Exclusionary evidence:
Lobato's mother was asked about her daughter's presence in Panaca between 3 and 9 July and specifically testified that she saw her asleep at 5.45 a.m. on 8 July. This information was submitted to a lie detector test which her mother passed.
Lobato herself also claimed to have been in Panaca between 2 and 9 July and took three separate lie detector tests, all of which she passed. The tests included questions about her whereabouts on 8 July, the day of Bailey's murder 170 miles away, and of course she passed.
The judge refused to allow either Lobato or her mother to testify about the results of the polygraph tests.
Yet again Judge Vega ruled as inadmissible any evidence that pointed to Lobato's innocence and only allowed evidence that supported her guilt.
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The police commit outright perjury
Having played Lobato's taped statement to the court, and stressing that he regarded it as being a confession, Thowsen then resorted to outright perjury. He claimed that when he arrested Lobato she had made a number of incriminating statements to her parents, and in particular used the words 'Mom, I did it. I have to do what I have to do.'
In the first place these words do not appear on her taped statement; more fundamentally, when Thowsen and LaRochelled arrested Lobato her parents were not present at the time and her sister Ashley and Kirstin Lobato herself were the only people in the home.
In other words, it was physically impossible either for Lobato to have made those statements or for Thowsen to have heard her making them to her parents as they were not even in the home at the time.
Thowsen was, clearly, deliberately lying and making up entirely fictitious statements about Lobato knowing that it would be impossible to disprove his damning words.
So, in addition to the already dubious 'double confession,' Thowsen now threw an entirely fictitious 'triple confession' into the mix. Any lie would do if it got a conviction.
Thowsen also testified that Lobato had 'confessed' to cutting off a man's penis in Las Vegas. He also claimed that at the time Lobato was off her head on an amphetamine drug.
Now Thowsen knew perfectly well that she was not; the medical evidence from the blood and urine samples from the relevant period demonstrated that beyond doubt.
So, to bolster his weak case, Thowsen simply committed perjury under oath. He also claimed that Lobato had danced topless at two Las Vegas clubs to make money for drugs; in fact, the time she admitted to doing that was two months earlier and the evidence of numerous witnesses proved that she was not in Las Vegas at the time of Bailey's death but at home in Panaca.
As Thowsen already knew this from the detectives' interviews with various witnesses, once again he committed deliberate perjury.
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Slanting the evidence in court:
One of the prosecution's key tactics was to make the jury so horrified and disgusted by the violence of the attack on Bailey that it would cloud their judgement and make them willing to convict Lobato in spite of the absence of hard evidence against her and the clear impossibility of her having committed the crime at all.
They made much of the findings of Medical Examiner Lary Simms, who testified that the attack on Bailey was horrifically brutal and had 'blatant sexual overtones.' He said that Bailey had been stabbed in the testicles while he was still alive and that at the time this wound was inflicted he almost certainly had his trousers down around his knees.
Bailey had also had his upper and lower jaw broken, six of his teeth knocked out and his headc crushed. He had also been stabbed in the chin, neck and forehead. After his death his penis had been sliced off and he had been stabbed in the rectum.
'There was a gaping large wound to the scrotum,' Simms testified. 'The penis was amputated at the base.'
The prosecution case was that Lobato had told several people that she had cut off a man's penis in Las Vegas after he tried to have sex with her. They also claimed that she admitted keeping a baseball bat in her car and that during her interview she admitted that she might have hit her assailant with it but she couldn't remember because she was high on amphetamines at the time of the assault.
As the attack to which Lobato referred took place two months before Bailey's death, and as she was not even in Las Vegas at the time of his killing, and as it was clearly established by Schiro, the defence forensic expert, that a baseball bat was not used to beat Bailey, the prosecution's case was extremely weak.
Frankly, it was not simply dubious to suggest that Lobato 'might' have used her baseball bat to hit Bailey; forensic tests conducted a week after her arrest showed that her bat had not been used to hit anyone and in addition, the forensic tests on Bailey's body conducted by Simms showed equally clearly that his injuries did not result from being hit with a bat but were almost certainly the result of being punched and kicked.
Since the prosecution knew both that Lobato had not hit Bailey with her baseball bat and that Bailey's injuries were not the result of being hit by one, they simply suggested that she might have used it to hit him. Speculation about the possibility of guilt was used by the prosecution rather than any attempt to demonstrate guilt through hard evidence which of course was completely lacking. They deliberately presented a speculation that they knew was false in order to bolster their weak case.
Simms' testimony did not back up the prosecution theory (which even they knew to be false) and although he admitted that it was not impossible that a baseball bat had been used to hit Bailey he believed that it was almost certain that it had not been used. He added that the type of mutilation Bailey had suffered was almost invariably associated with male perpetrators and other than Lorena Bobbitt he could think of no case where a woman had mutilated a man's penis in the way that had been done to Bailey.
In spite of the fact that Simms made it clear that he did not regard Lobato as a likely killer, let alone a 'prime suspect,' the prosecution slanted the parts of his evidence that it liked - such as the fact that Bailey might have been hit with a baseball bat and that Lobato might have cut off his penis (and indeed had claimed to several people that she had cut off a man's penis when he attacked her) to make it appear that their 'case' was stronger than it was. Guilt by innuendo was used throughout the trial, along with increasingly fantastic speculative theories about what 'might' have happened.
Clark County prosecutor William Kephart gave the outline of his 'theory' for Lobato's motive during a court recess. He said that "I believe the motive had sexual connotations," Kephart said. "It was a drug-induced angry state (directed) at someone who wanted more than she was willing to give."
This, of course, is part of the prosecution claim that Lobato wanted drugs from Bailey and that she prepared for oral sex with him in exchange but that somehow 'it went wrong' and she ended up killing him in a drug-fuelled rage. Not only is this pure speculation; it is contradicted by a number of obvious facts.
Lobato had easy access to drugs from regular suppliers in Panaca and did not need to approach a homeless man like Bailey on the off-chance that he might be able to supply her with them. Bailey dealt in cocaine while Lobate used amphetamines so he would not have been able to provide her with her drug of choice. There is no evidence that Lobato was kneeling down when she stabbed or sliced at the penis of the man who attacked her two months earlier and who was not Bailey; her own statement says explicitly that she was lying on the ground with him standing above her.
Yet more 'slanting' of the evidence took place during the trial but this shows the general trend. I will come back later to some of the other sleights-of-hand pulled by the prosecution.
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Bailey's mutilation and prosecution strategy:
In the first place the prosecutors wanted the jury exposed to as much of the photographic evidence of the horrific injuries Bailey suffered in order to prejudice the jurors against Lobato because of the vicious nature of his assault.
The prosecution portrayed a scenario in which Lobato was kneeling on the ground and was either about to give Bailey oral sex in return for drugs or was offering to do so. They claim that Bailey wanted 'more' and that Lobato, unwilling to 'give' more to him, attacked his penis with a knife before inflicting the other injuries upon him and, ultimately, killing him and then inflicting further mutilations upon his dead body.
Lobato claimed that she had been pushed to the ground by her assailant who was standing over her and that she stabbed or slashed upwards at him. As he staggered and bled slightly, she ran to her car and escaped.
Now I've taken the trouble to ask a woman who in her teenage years used knives a lot in gang activity. On more than one occasion she used her knife to defend herself against attempted rape. She tells me that it would be very difficult to stab, let alone slash at, a man's penis from a kneeling position while if you were lying down the natural and instinctive movement would be to stab upwards. She also adds that the penis is quite a difficult target to hit with a knife and that, standing or lying down, the logical point of attack with a knife would be the stomach. That is much easier to reach, likely to cause an instant incapacitation of the attacker and so she believes that Lobato probably aimed at the stomach rather than the groin area.
She adds that it would be quite difficult to grab at a penis with one hand from a prone position and slash at it with the other hand, and almost impossible to do so from a kneeling position. The strong probability, she feels, is that Lobato was in a prone position on the ground and slashed upwards with her knife, almost certainly aiming at the attacker's stomach (though possibly making contact with his groin area since in a situation that like accuracy is difficult).
She also points out that Lobato took her butterfly knife out of her jeans pocket which, if she was kneeling down, would be much harder to do than if she was lying down or standing up. In her opinion, it is virtually impossible for a woman in a kneeling position to get out a knife from her jeans pocket, grab the attacker's penis with one hand and then slash at it with the other hand.
The prosecution's 'reconstruction' of the scenario is of course entirely speculative. So of course is the one that I have suggested. Mine is however at least based on first-hand experience from a woman who had occasion as a teenager to use a knife to defend herself, both in standing and in prone positions. Theirs is simply an incredibly unlikely conjecture.
It is certain that Lobato gave different accounts of what had happened during the course of her attack to the various people she described it to and it is equally certain that none of them resemble the prosecution scenario.
In all versions of her attack she has been pushed to the ground by her attacker and stabs or slashes upwards. In some of the versions she stabs his testicles, in others she stabs his penis, in others she slashes at his penis, in others she grabs his penis with her left hand and slashes at it with her right, and in others she stabs at his stomach.
All these scenarios are more plausible than the prosecution's claim that Lobato was kneeling on the ground and used her knife to slash upwards at the attacker.
It is also crucial that no fewer than five people were told about the May attack by Lobato during the month of June, before Bailey's death on 8 July.
The prosecution, knowing that this testimony made their claim that Lobato had committed Bailey's murder on 8 July extremely dubious, used two different strategies to undermine it.
One was to suggest or at least imply that the witnesses were either lying about the time when Lobato had told them of her attack or to claim that their memory was at fault.
Another was to suggest that Lobato had deliberately invented the whole story of the earlier attack in May in order to give her an alibi for the attack on 8 July.
The first claim was never very credible and it did not seem to cut much ice with the jury. On the other hand, the suggestion that Lobato had made up the whole attack and that it was simply a cover story for the later attack on Bailey did seem to be one that the jurors, for whatever reason, appeared able to swallow.
If we look at the prosecution suggestion logically it would mean that a month before she killed Bailey in Las Vegas, Lobato had already planned to murder him. That 'false alibi' would mean that she was guilty of a totally premeditated act of murder and that she intended to kill him - and, presumably, batter and mutilate him as well - all along.
Because the jury believed the prosecution's claim - for which, like almost everything in their case, there was not the slightest evidence - they found Lobato guilty of murder. This particular piece of speculation on their part largely made the difference between them convicting her of manslaughter and finding her guilty of murder.
Yet it was pure conjecture on the prosecution's part and utterly implausible. Even if Lobato had been present in Las Vegas at the time of Bailey's death; even if the forensic evidence did not conclusively rule her out as a suspect; even if she had launched an amphetamine-fuelled attack on Bailey, it did not happen and could not have happened in the way the prosecution tried to pretend, and on the basis of which an innocent woman was unjustly convicted of murder.
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Witness testimony:
All the witnesses who were cross-examined about Lobato's statements concerning her allegedly cutting off a man's penis in the course of defending herself against an assault gave different versions of what they said she had told them.
Dixie Tienken was particularly resistant to the prosecution attempts to steamroller her and was treated by the prosecution as a 'hostile witness.' She declared outside the court that she believed firmly in Lobato's innocence, saying, "I don't think she did it. I don't think she killed anyone."
Paul Brown, a resident of Panaca, said that he 'overheard' Lobato tellng his girlfriend Michelle Austria about an incident in Las Vegas the previous summer where 'she was attacked by a man and she defended herself with a knife," Brown said. "She reached down and cut off his penis.'
Brown added that he never took much notice of what Lobato said because she tended to exaggerate.
"I've heard a lot of stories so I sort of let it slide," said Brown.
His girlfriend, Michelle Austria, who had actually conversed with Lobato on the issue, was much firmer in her rejection of the prosecution claims. She said that Lobato had admitted defending herself with a knife during an attempted sexual assault upon her but that she had made absolutely NO mention of cutting off a man's penis.
Johnson, of course, who had already given her third-hand double hearsay testimony of what she claimed Tienken had told her that Lobato had said to her, as well as adding the entirely false claim that Lobato had been on probation and she had been her supervising officer, also claimed that Lobato had 'hidden out' and had hidden and spray painted her car.
Tienken and other witnesses contradicted Johnson on those points but sadly the jury seemed to believe Johnson's entirely mendacious account of Lobato's activities. This is particularly surprising as she actually had no direct knowledge of any of the things she claimed Lobato had done.All she had was a version of what she claimed Tienken had told her that Lobato had said to her (and Tienken disputed Johnson's version of their conversation).
Judge Vega, with the bias against the defendant that she showed throughout the trial, ruled as inadmissible almost all alibi and forensic testimony that excluded Lobato from having committed Bailey's killing.
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The trial closes:
Let's begin by reviewing the prosecution 'case' against Lobato.
Did they present any eye-witness testimony against her? No.
Did they present any forensic testimony against her? No.
Did they present even any circumstantial evidence against her? No.
So what evidence did they present in their summation to the jury?
To begin with, they presented Lobato's admission that she was attacked by a black man in Las Vegas and slashed at his penis and thought she might have cut it off as a confession to his murder.
They also presented Martin's completely unsubstantiated and highly dubious account of Lobato's 'confession' to her in jail as being evidence of her 'confession' to Bailey's murder and mutilation.
They presented Johnson's third-hand double hearsay claims about Lobato having 'confessed' to cutting off a man's penis, to having been on probation and with Johnson as her probation officer, to hiding out and spraypainting her car - the last three claims being false and the first a wildly different version from the one Lobato told Tienken, Johnson's source - as being an admission of guilt and 'proof' of a criminal mind.
They also presented Thowsen's totally false and perjured claim that Lobato had 'confessed' during her interview with him while the tape was switched off and in the presence of her parents by saying 'Mom, I did it' as a 'confession' even though her parents had not been present during her interview and the mere fact that the tape was switched off renders Thowsen's conduct totally unprofessional and suspicious.
They also offered a series of speculations about what might have happened.
They said that Lobato might have been in Vegas offering oral sex for drugs and then, for whatever reason, attacked him and killed him instead.
They said that the witnesses who testified she was in Panaca at the time were either mistaken or lying.
They said that Lobato might have cut off Bailey's penis with her butterfly knife.
They said that Lobato might have hit Bailey with her baseball bat (in spite of the fact that Bailey's injuries were not the result of being hit with a baseball bat and that forensic evidence conclusively ruled out the use of Lobato's bat as any kind of weapon).
They said that Lobato's account of her earlier assault in May in Las Vegas was a deliberate attempt to create a false alibi for herself for Bailey's murder.
They said that Lobato was high on amphetamines at the time of Bailey's death in spite of the fact that forensic evidence showed conclusively that she was not.
They presented a picture of Lobato as a drug-crazed slut with a violent streak and who was entirely capable of carrying out a cold-blooded murder.
They concluded by repeating their assertion that Lobato's admission during her interrogation by Thowsen and LaRochelled that she had stabbed at a black man's groin area to repel a sexual assault was a 'confession' to having murdered Bailey.
The defence team was, frankly, not very good at their job, particularly Kohn.
They stressed that during the police interview with Lobato they did not mention the date of the victim's assault; they made the assumption that she was talking to them about them when she was talking about her earlier assault; that there were no matching details between what Lobato told them and the scene of Bailey's homicide; that there was no forensic evidence that linked Lobato to the crime; that eyewitnesses testified both that she had told them about the assault in Las Vegas before the death of Bailey; and that eyewitnesses had testified that she was in Panaca at the time of his death.
With a biased judge, Valorie Vega, a former prosecutor herself who had worked with the prosecutors before and who had shown consistent bias against Lobato throughout the trial, Lobato's chances of acquittal, in spite of the overwhelming evidence that it was impossible for her to have committed the crime, were slim, particularly with her inept defence team.
The jury retired to consider their verdict.
The jury verdict
Kirstin Lobato was charged with first degree murder, sexual mutilation of a dead body and carrying an offensive weapon.
Judge Vega told the jury they had the options of finding the defendant guilty of first degree murder, second degree murder, manslaughter, sexual mutilation of a dead body and carrying an offensive weapon or of finding her not guilty on all counts.
The definition of first degree murder in the state of Nevada is as follows:
A deliberate act of killing requiring premeditation and intent or 'felony murder,' where the defendant did not intend to kill the victim but death is the result in the perpetration of rape, burglary, arson, kidnapping, robbery, child abuse, elder abuse or sexual abuse of a child.
Now though the presence of semen in Bailey's rectum shows clearly that he was anally raped, it also entirely rules out Lobato as having been responsible for that. As Bailey was an adult and Lobato was not engaged in rape, burglary, arson, kidnapping or robbery, none of the 'felony murder' aspects of the 'first degree murder' law could possibly apply. The only basis on which the jury could have found Lobato guilty of first degree murder is if they considered that she deliberately killed Bailey with premeditation and intent.
Second-degree murder:
This is defined as 'unintentional homicide' where the defendant behaved recklessly and the death of the victim was a probable result of their actions. There may have been no intention to kill but the defendant's actions were highly likely to result in a fatality.
Manslaughter:
Manslaughter is defined as killing without malice or premeditation and is divided into 'voluntary' and 'involuntary' manslaughter. Voluntary manslaughter means killing in a rage or in the heat of passion. For that crime the maximum sentence is ten years in prison.
Involuntary manslaughter is defined as unintentional killing while breaking the law, for instance, driving recklessly, and the maximum sentence for that crime is four years in prison.
Deadly weapon:
If the killer used a 'deadly weapon' such as a knife, gun, baseball bat or similar to carry out the killing, that is regarded as an 'aggravating circumstance' and the law imposes a 'deadly weapon enhancement' on top of any other sentence that may be handed down. The penalties for 'deadly weapon enhancement' range from a minimum of 1 year to a maximum of 20 years.
The jury found Lobato guilty of first degree murder and of sexual mutilation of a dead body.
I'll briefly recap all the reasons why the jury verdict was totally irrational.
1. Since none of the other factors constituting first degree murder under Nevada law applied, the jury can only have found her guilty on the basis that they believed, not simply that she killed Bailey (which is dubious in itself given the utter lack of evidence) but that she did so with premeditation, with intent and with malice aforethought.
Even the prosecution, for all their character assassination of Lobato, for all their dubious speculations about how they imagine she might have behaved and why she might in their opinion have committed the killing, were never able to demonstrate any evidence of premeditation, malice aforethought or intent on her part.
Considering that they were surprised when she pleaded not guilty in court - they had been expecting her to enter a plea of self-defence to the crime - the strong probability is that they had expected at best a second-degree murder conviction or, more probably, a manslaughter one.
They were probably as surprised as Lobato when the jury convicted her of first-degree murder.
2. Even though the prosecution persistently claimed that Lobato was in Las Vegas at the time and date of Bailey's death they were unable to produce a single eye-witness to support that claim. By contrast, Lobato could produce eyewitnesses who had seen her in Panaca at the date and time of Bailey's death. The prosecution's only response to that was to say that all of them were either mistaken or lying.
She was also able to produce phone records showing conversations between her and her boyfriend and others on the day and at the time in question. The prosecution, clearly desperate, simply asserted that the calls were not between Lobato and her boyfriend but were between him and Lobato's parents and that the boyfriend and parents were simply lying to protect her.
The prosecution's case, dubious and dishonest to begin with, soared into the realms of conspiracy theory with a large number of people all seemingly engaged in a conspiracy to protect Lobato and cover up her murderous behaviour.
There was no forensic evidence linking Lobato with the crime; a considerable amount showing that she could not have carried out the killing; and all the prosecution had to offer was speculation that she might have hit Bailey with her baseball bat and that she might have killed him with her butterfly knife.
Beyond that they had the third-hand double hearsay testimony of Johnson about her account of what she said Tienken had told her that Lobato had said to her - a version of the conversation that Tienken denied; the alleged 'confession' of Lobato to Martin in the detention center; the perjured testimony of Thowsen about an alleged 'confession' by Lobato to him with the tape recorder off in front of her parents at a time when Thowsen knew that her parents were not even present.
So, on the basis of hearsay, speculation and perjury, an innocent woman was wrongly convicted of first-degree murder.
The jury ought, rationally, to have acquitted her on all charges (except possessing a deadly weapon).
Even a verdict of second-degree murder or manslaughter would have been easier to understand.
But how and why the jury felt that Lobato, even discounting the clear proof that she was not guilty of any of the charges against her. had acted with premeditation, intent and malice aforethought is one of life's many mysteries.
Clearly the bravura theatrics of the prosecutors and the ineptitude of the defence lawyers played a part; clearly the bias of the judge and her deliberate exclusion of testimony that would have shown beyond any reasonable doubt that the defendant was innocent; the fact that Lobato was a drug-user, sexually promiscuous and came from an area of Nevada that, on the admission of several of the jurors, made them nervous.
But even Judge Vega, who showed consistent bias against Lobato throughout the trial, reminded them in her summing up not to be swayed by prejudice.
One can only assume that they disregarded her instructions.
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Sentencing:
On any rational assessment, there was insufficient evidence for the jury to have entered a conviction against Lobato. The prosecution had failed to prove guilt beyond a reasonable doubt; and their 'evidence' included hearsay (which should have been inadmissible), perjury, speculation and dubious 'confessions.' They had no forensic evidence; eyewitness testimony and phone records showed that Lobato was not even in Las Vegas on the date and time in question.
The charges against her should never even have proceeded to court. Judge Vega could have dismissed the charges as soon as they came before her court. She could also have instructed the jury to find Lobato not guilty on the first-degree murder count (which, on any rational assessment, she clearly was) and only allowed them the choices of second-degree murder and manslaughter if they wished to find her guilty.
But Vega did neither of those things; her entire conduct throughout the trial was biased in the extreme. She was herself a former prosecutor who had worked with the prosecution team in the past and who consistently favoured them over the defence.
The same bias against Lobato was demontrated in her sentencing.
She could, following the jury's verdict of first-degree murder, have imposed one of the following penalties.
Death - if she felt the aggravating circumstances outweighed the mitigating ones
Life without parole
Life with the possibility of parole after 20 years
50 years with the possibility of parole after 20 years
In fact the judge handed down none of those possible penalties. Instead she sentenced Lobato to a minimum of 20 years in prison for first-degree murder, a 5-year sentence (to be served concurrently) for sexual mutilation of a dead body, and a 20-year sentence to be served consecutively , based on her opinion that as Bailey was stabbed with a knife the 'deadly weapon enhancement' applied so Vega sentenced Lobato to a minimum of 40 years before she could become eligible for parole at the age of 59.
You could argue that not sentencing her to LWOP or 50 years with possible parole after 20 was 'merciful' but 40 years was not simply unjustified in view of her obvious innocence but was grossly disproportionate in terms of the options available to the judge.
It was open to Vega to give Lobato the minimum sentence under Nevada law for 'deadly weapon enhancement,' which would have been 1 additional year on her sentence. She could also have given a lesser sentence than the maximum of 20 years for that particular offence. She could also have made the sentence for 'deadly weapon enhancement' concurrent with the 20 years for murder - as she did with the 'sexual mutilation of a dead body' charge - rather than consecutive. That would have meant that Lobato would have received a 20 year sentence with the possibility of an early parole.
Considering that Lobato's guilt was dubious at best - on appeal, her conviction for murder was overturned and reduced to one of 'voluntary manslaughter' - Vega's harsh sentence was even more irrational, unfair and indefensible than most.
It is also worth considering that, at the very least, if Bailey's killing had taken place while Lobato was defending herself against an attempt at rape, the self-defence argument would have applied and in addition, the 'mitigating circumstances' should also have been taken into account. The judge could and should have imposed a lesser penalty on Lobato even if she genuinely believed her to be guilty of killing Bailey.
Once again Judge Vega seemed more interested in imposing a harsh punishment on a vulnerable teenage girl than in any kind of punishment that bore the slightest resemblance to justice.
The law and justice are, at best, poles apart from one another and frequently directly opposed.
The case of Kirstin Lobato saw a combination of incompetence, fraud, perjury and bias lead to the imprisonment of an innocent woman for a crime which it was impossible for her to have committed.
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biglinmarshall.proboards.com/thread/7917/bits-pieces-magazine-issue-2024
Nov 4, 2024 17:39:29 GMT
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biglinmarshall.proboards.com/thread/7917/bits-pieces-magazine-issue-2024
Nov 4, 2024 17:39:29 GMT
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yay! 
thanks
Nov 2, 2024 17:09:05 GMT
thanks
Nov 2, 2024 17:09:05 GMT
Oct 23, 2024 18:34:05 GMT