The Justice Institute Files Motion For Reconsideration Of The Nevada Supreme Court’s Denial Of An Amicus Brief

The Justice Institute has filed a motion for the Nevada Supreme Court to reconsider its refusal to allow an amicus curiae brief to be filed in support of Kirstin Blasie’s Lobato’s habeas corpus appeal now pending before that court. (Click here to read the motion.)

The Justice Institute is the parent organization of Justice Denied, and two other organizations, Proving Innocence and the Worldwide Women’s Criminal Justice Network, have joined in support of the amicus brief.

Ms. Lobato was convicted in October 2006 of charges related to the murder of 44-year-old homeless man Duran Bailey in a trash area outside a Las Vegas bank on July 8, 2001. After her conviction was affirmed by the Nevada Supreme Court in October 2009 she filed a habeas corpus petition in May 2010.

It is black letter law under the Fifth Amendment to the U.S. Constitution that a conviction must be overturned if the prosecution failed to introduce evidence sufficient to prove every essential element of an accused person’s charged crimes beyond a reasonable doubt. (See Jackson v. Virginia, 443 US 307 ( 1979)). It is also required under the Sixth Amendment that a conviction must be overturned if a defendant’s trial or appellate lawyer(s) provided representation that fell below professional norms and there is a reasonable probability it changed the outcome. (See Strickland v. Washington, 466 U.S. 668 (1984)).

Four essential elements the prosecution had to present evidence proving were that Ms. Lobato was in Las Vegas on July 8, 2001; that she was at the scene of the crime at the time of Mr. Bailey’s murder; that she murdered Mr. Bailey; and, that she inflicted a wound to Mr. Bailey’s rectum after his death.

The Justice Institute’s amicus brief focuses on the failure of Ms. Lobato’s lawyers to submit jury instructions, make motions to her judge, or argue to the jury that she was required to be acquitted because the prosecution failed to introduce evidence proving any of those four essential elements beyond a reasonable doubt. The brief also argues Ms. Lobato’s appeal lawyers failed to adequately raise the issue that the prosecution failed to introduce evidence sufficient to prove those four essential elements.

The State opposed the filing of the amicus brief and the Nevada Supreme Court denied the Justice Institute’s motion for the Court Clerk to file it. On May 16, 2012 the Justice Institute filed a Motion For Reconsideration that detailed the Court’s denial has no legal basis because it ignored the only two factors relevant to approving the filing of an amicus brief in Nevada: that it is filed by a party that has an “interest” in the case, and that the brief is “desireable” to assist the court in understanding the issues in the brief. Neither the State in its opposition nor the Court in its denial disputes that the Justice Institute, Proving Innocence and the WWCJN have an “interest” in Ms. Lobato’s appeal. Likewise, neither the State in its opposition nor the Court disputed that the Justice Institute, Proving Innocence and the WWCJN exceed the threshhold for determining a brief is “desireable.” Click here to read the Motion for Reconsideration, that beginning on page 16 has the amicus brief attached as Exhibit 1.