Jan 14

NV Supreme Court Rules Denial Of Post-conviction DNA Testing Can’t Be Appealed

The Nevada Supreme Court ruled on January 12, 2012 that a district court’s denial of post-conviction DNA testing cannot be appealed.

In 2009 Nevada amended its post-conviction DNA testing law NRS §176.0918 to include persons who were not sentenced to death.

Kirstin Blaise Lobato at the Florence McClure Women's Correctional Center.

Kirstin Blaise Lobato at the Florence McClure Women's Correctional Center.

Kirstin Blaise Lobato was convicted in October 2006 of charges related to the July 2001 murder of a homeless man in Las Vegas. The State didn’t introduce any physical, forensic, eyewitness, informant or confession evidence linking Ms. Lobato to the crime, and her alibi defense supported by telephone records and a dozen witnesses is that on the entire day of the murder she was 170 miles from Las Vegas at her home in Panaca, Nevada. Ms. Lobato was 18 in 2001, and her conviction was based on the prosecution’s contention that in spite of the lack of evidence it is possible she committed the crime. A book about her case is subtitled, Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt. She was sentenced to 13-to-35 years in prison.

After Ms. Lobato’s convictions were affirmed on direct appeal she filed a state habeas corpus petition in May 2010 that is pending.

All DNA tests of crime scene evidence conducted prior to Ms. Lobato’s conviction excluded her from the crime. However, after her conviction three DNA testing techniques were developed that were unavailable at the time of her conviction. One of those is touch DNA testing that has the ability to determine the DNA profile of a person who “touched” something and left identifiable skin cells, oils or perspiration. Touch DNA testing was used to discover new evidence that exonerated Timothy Masters of a 1987 murder, and it cleared John and Patsy Ramsey of involvement in the 1996 murder of their daughter JonBenet. A second development were refinements in the ability of a DNA test to detect a DNA profile from degraded, impure or minute evidence. The third development is the ability of a DNA test to identify the individual DNA profiles from evidence that contains mixed DNA of two males.

Those new testing techniques are all relevant to the testing of evidence recovered from the crime scene in Ms. Lobato’s case. If performed they could be expected to result in additional exculpatory evidence and the DNA profile of the killer, that could then be uploaded to the Nevada and FBI’s DNA databases to search for a match.

In February 2011 Ms. Lobato filed a Petition Requesting Post-Conviction DNA Testing Pursuant To NRS §176.0918. Ms. Lobato was the first person in Nevada known to have filed a post-conviction DNA testing petition under NRS §176.0918.

Under the statute a DNA testing petition must be assigned to the district court (trial) judge if possible, so her petition was assigned to her trial judge, Valorie Vega. The State opposed the petition, and during a hearing on June 7, 2011 Judge Vega denied the petition. Her written Order denying the petition was filed on July 27 and Ms. Lobato filed a Motion For Reconsideration. That motion was denied on September 1, 2011 and Ms. Lobato filed a Notice of Appeal that same day.

Nevada has a single-tier appeals system, and on October 3, 2011 the Nevada Supreme Court issued an Order To Show Cause why Ms. Lobato’s appeal should not be dismissed for lack of jurisdiction. The Order stated two reasons the Court was considering dismissal: First, the notice of appeal was filed 34 days after the petition had been denied, and by statute there is only 30 days to appeal a “final order.” The second reason was that NRS §176.0918 doesn’t provide for the appeal of a denial of a DNA testing petition.

After briefing on the Order To Show Cause by Ms. Lobato and the State, on January 12, 2012 the Nevada Supreme Court issued its Order Dismissing Appeal. The Court ruled that in Nevada the appeal of an Order is only conferred by statute, and since NRS §176.0918 doesn’t include a provision to appeal the denial of a DNA testing petition, Ms. Lobato’s appeal must be dismissed. Based on the Court’s rationale a district court judge’s denial of post-conviction DNA testing is non-appealable in Nevada.

The Nevada Supreme Court also ruled that even if the statute provided for an appeal, Ms. Lobato’s appeal would be dismissed as untimely because it was filed after the 30-day deadline for filing a notice of appeal. The Court ignored that the reason Ms. Lobato’s appeal was filed 34 days after Judge Vega’s Order was filed, was because she was waiting for Judge Vega to make a ruling on her Motion For Reconsideration — and she filed her notice of appeal the same day that Motion was denied.

Click here to read the Nevada Supreme Court’s January 12, 2012 ruling in Kirstin Blaise Lobato v The State of Nevada, No. 59147 (Nev. 1-12-12).

The Free Kirstin Blaise Lobato website is at, http://www.justice4kirstin.com.

For information about the book Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt by Hans Sherrer (Rev. Ed. 2010), click here.

Click her to read a Justice Denied article about Ms. Lobato’s case after her 2006 conviction.

By Hans Sherrer
Justice Denied

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