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Report About Interviews Of Jurors For Kirstin Blaise Lobato’s 2006 Trial

By Hans Sherrer1

February 4, 2011

In December 2010 every juror for Kirstin Blaise Lobato’s 2006 trial who could be located was contacted by Justice Denied as part of its ongoing investigation into her case. In addition to being asked general questions about their impressions of Ms. Lobato’s trial, the jurors were asked if they were willing to review a summary of new evidence in Ms. Lobato’s case and evaluate if it likely would have affected the jury’s deliberations and verdict.2 As of the writing of this two of Ms. Lobato’s jurors who agreed to do so have provided signed documents stating, “I believe that if the jury in 2006 had known Ms. Lobato’s new evidence it could have influenced the jury’s deliberations, and it could have resulted in either a hung jury or Ms. Lobato’s acquittal.” And, “I believe it is in the interest of justice that Ms. Lobato be granted a new trial.”

A key finding of those interviews was the effect on the juror’s perception of the issues in Ms. Lobato’s case caused by the superior skill and commitment to win of her prosecutors – Clark County Assistant District Attorneys William Kephart and Sandra DiGiacomo – compared with Ms. Lobato’s lawyers. The following observations are a composite of the information gleaned from the juror interviews.

1. Ms. Lobato’s lawyers failed to bolster the credibility of non-relative witnesses who provided testimony favorable to her by establishing through testimony and then emphasizing to the jury in closing arguments that those witnesses were not close friends, but acquaintances or buddies living in Las Vegas and Panaca who did not stay in contact with her after her arrest.

Consequently, the jury was left with the false impression that Ms. Lobato’s non-relative witnesses who lived in Las Vegas or Panaca in May, June and July 2001 were close friends who had a motive to lie to assist her when in fact they were acquaintances whose only interest was to testify truthfully.

2. Ms. Lobato’s lawyers failed to bolster the credibility of three alibi witnesses who were relatives and testified to seeing her at her parents’ house in Panaca on July 8, 2001 between about 1am and 7:15 am, by establishing through testimony and then emphasizing to the jury in closing arguments that two of those alibi witnesses had not been called to testify at any prior proceeding, but if they had been called they would have testified about seeing her during the early morning of July 8, and that when the third, Becky Lobato, testified during a prior proceeding she had not been asked if she saw Blaise on the morning of July 8.

Consequently, the jury was left with the false impression that Ms. Lobato’s three alibi witnesses who were relatives were not truthful when they testified to seeing and talking with her at her parents’ house between about 1am and 7:15 am on July 8, 2001, because the prosecution argued during closing and rebuttal arguments their testimony was “new” – when in fact Ms. Lobato’s trial in 2006 was the first opportunity they had been given to testify about their personal knowledge that she was at her parents’ house that morning.

3. Ms. Lobato’s lawyers failed to use available information to undermine the testimony of Clark County Medical Examiner Lary Simms, LVMPD Detective Thomas Thowsen, and Lincoln County Juvenile Probation Officer Laura Johnson, by cross-examining them to bring to the jury’s attention inconsistencies in their direct testimony and when it was inconsistent with their testimony in prior proceedings. In contrast, ADA’s William Kephart and Sandra DiGiacomo thoroughly examined witnesses subpoenaed by the prosecution who were acquaintances of Ms. Lobato’s to expose to the jury inconsistencies in their testimony favorable to her or that it was inconsistent with their testimony in prior proceedings. An example of this is Dixie Tienken who was subpoenaed by the prosecution and declared a hostile witness by Judge Valorie Vega at DiGiacomo’s request. Kephart and DiGiacomo were equally thorough in cross-examining witnesses subpoenaed by the defense to bring to the jury’s attention inconsistencies in their testimony favorable to Ms. Lobato or that it was inconsistent with their testimony in prior proceedings. Examples of this are the cross-examination of Becky Lobato and Heather McBride.

Consequently, the failure of Ms. Lobato’s lawyers to use available information during cross-examination to impeach the credibility of the prosecution’s key witnesses Thowsen, Simms and Johnson left the jurors with the false impression that their testimony favorable to the prosecution was truthful while the witnesses acquainted with Ms. Lobato who provided testimony favorable to her were deceptive or untruthful.

4. Ms. Lobato’s lawyers failed to bring to the jury’s attention during closing arguments that there was no evidence she used any methamphetamine anywhere at any time during the month of July 2001 – which includes the weekend of Duran Bailey’s murder on Sunday July 8, 2001.

Consequently, the jury was left with the false impression created by the prosecution’s closing and rebuttal arguments unsupported by any evidence introduced during the trial, that Ms. Lobato used a large quantity of methamphetamine the weekend of Bailey’s murder on July 8, 2001.

5. Ms. Lobato’s lawyer failed to bring to the jury’s attention during closing arguments that the only evidence introduced during the trial was she had used methamphetamine at times in May and June 2001.

Consequently, the jury was left with two false impressions created by the prosecution’s closing and rebuttal arguments unsupported by any evidence introduced during the trial: First that in the spring of 2001 Ms. Lobato was a methamphetamine “addict” when in fact she was only a sometime user; and second, that because she sometimes used methamphetamine in May and June 2001, it meant she used it in July 2001, and specifically on July 8 – the day of Mr. Bailey’s murder.

6. Ms. Lobato’s lawyer failed to bring to the jury’s attention during closing arguments that the only evidence introduced during the trial was Mr. Bailey used crack cocaine, and there was no testimony he had used, traded, sold, or even possessed any methamphetamine at any time in the months of May, June and July 2001. (Crack cocaine is not only what Bailey used but it is what Diann Parker testified he gave her in exchange for sex on several occasions.)

Consequently, the jury was left with the false impression created by the prosecution’s closing and rebuttal arguments unsupported by any evidence introduced during the trial that a methamphetamine user would have tracked Mr. Bailey down prior to dawn on July 8, 2001, to obtain methamphetamine from him – when the evidence is he had none.

7. Ms. Lobato’s lawyer failed to bring to the jury’s attention during closing arguments that there was no evidence introduced during the trial that she had ever used any crack cocaine at any time in her life.

Consequently, the jury was left with the false impression created by the prosecution’s closing and rebuttal arguments unsupported by any evidence introduced during the trial that it was a reasonable possibility Ms. Lobato would have tracked Mr. Bailey down prior to dawn on July 8, 2001 to obtain methamphetamine from him – when the only evidence introduced during the trial was Mr. Bailey used, possessed and occasionally traded crack cocaine with one person (Diann Parker).

8. Ms. Lobato’s lawyer failed to bring to the jury’s attention during closing arguments that because she used methamphetamine and did not use crack cocaine, while Bailey used crack cocaine and did not use methamphetamine, there was no reason for her and Bailey to have every crossed paths and there is no evidence they ever did so.

Consequently, the jury was left with the false impression created by the prosecution’s closing and rebuttal arguments unsupported by any evidence introduced during the trial that it is a reasonable possibility that a methamphetamine user would have tracked Bailey down prior to dawn on July 8, 2001 to obtain methamphetamine from him – when the evidence is he had none.

9. Lobato’s lawyer failed to bring to the jury’s attention during closing arguments that no crack cocaine or methamphetamine or traces of any drugs of any kind was found at the scene of Bailey’s murder. Likewise, no drug paraphernalia or containers were found nor was any evidence found that anyone had used crack cocaine or methamphetamine in the trash enclosure where Mr. Bailey was murdered.

Consequently, the jury was left with the false impressions created by the prosecution’s closing and rebuttal arguments unsupported by any evidence introduced during the trial that a quantity of methamphetamine was used in the trash enclosure immediately prior to Bailey’s murder.

The juror interviews make it clear that her conviction is attributable to the success of prosecutors Kephart and DiGiacomo to manipulate the juror’s perception and evaluation of numerous exculpatory facts that her lawyers failed to bring to the juror’s attention, the failure of her lawyers to elicit testimony of witnesses subpoenaed by both the defense and prosecution who provided testimony favorable to Ms. Lobato that would have strengthened their credibility, and the failure of her lawyers to elicit testimony on cross-examination of prosecution witnesses who provided testimony unfavorable to her that would have undermined their credibility.

Endnotes:

1 Hans Sherrer is editor and publisher of Justice Denied – the magazine for the wrongly convicted.

2 “New Evidence Kirstin Blaise Lobato Is Innocent Of Any Involvement In The Death Of Duran Bailey In Las Vegas, Nevada On July 8, 2001,” Prepared by Hans Sherrer/Justice Denied, December 12, 2010.