Leonard Peltier Statement February 6-2018 – 43 years innocent in prison – Donate and sign!

Logo of Free Leonard Peltier Defense Committee

Free Leonard Peltier Defense Committee

Free Leonard Peltier Defense Committee
Greetings Family, Friends and Supporters

I am overwhelmed that today Feb 6th is the start of my 43rd year in prison. I have had such high hopes over the years that I might be getting out and returning to my family in North Dakota. And yet here I am in 2018 still struggling for my FREEDOM at 73.

I don’t want to sound ungrateful to all my supporters who have stood by me through all these years. I dearly love and respect you and thank you for the love & respect you have given me.

But the truth is I am tired and often my ailments cause me pain with little relief for days at a time. I just had heart surgery and I have other medical issues that need to be addressed: my aortic aneurysm, that could burst at any time, my prostate and arthritis in my hip and knees. I do not think I have another ten years, and what I do have I would like to spend with my family. Nothing would bring me more happiness than being able to hug my children, grandchildren, and great-grandchildren.

I did not come to prison to become a political prisoner. I’ve been part of Native resistance since I was nine years of age. My sister, cousin and I were kidnapped and taken to boarding school. This incident and how it affected my cousin Pauline, had an enormous effect on me. This same feeling haunts me as I reflect upon my past 42 years of false imprisonment. This false imprisonment has the same feeling as when I heard the false affidavit the FBI manufactured about Myrtle Poor Bear being at Oglala on the day of the fire-fight. A fabricated document used to extradite me illegally from Canada in 1976.

I know you know that the FBI files are full of information that proves my innocence. Yet many of those files are still withheld from my legal team. During my appeal before the 8th Circuit, the former Prosecuting Attorney, Lynn Crooks, said to Judge Heaney. “Your honor, we do not know who killed those agents. Further, we don’t know what participation if any, Mr. Peltier had in it”. That statement exonerates me, and I should have been released. But here I sit, 43 years later still struggling for my Freedom.

I have pleaded my innocence for so long now, in so many courts of law, in so many public statements issued through the International Leonard Peltier Defense Committee, that I will not argue it here. But I will say again I DID NOT KILL THOSE AGENTS!

Right now I need my supporters here in the US and throughout the world helping me. We need donations large or small to help pay my legal team to do the research that will get me back into court or get me moved closer to home or a compassionate released based on my poor health and age.
Please help me to go home, help me win my freedom!

There is a new petition my Canadian brothers and sisters are circulating internationally that will be attached to my letter. Please sign it and download it so you can take it to your work, school or place of worship. Get as many signatures as you can, a MILLION would be great!

I have been a warrior since age nine. At 73 I remain a warrior. I have been here too long. The beginning of my 43rd year plus over 20 years of good time credit, that makes 60+ years behind bars.

I need your help. I need your help today! A day in prison for me is a lifetime for those outside because I am isolated from the world.

I remain strong only because of your support, through prayers, activism and your donations that keep my legal hope alive.

In the Spirit of Crazy Horse

Leonard Peltier

If you would like a paper petition please mail: contact@whoisleonardpeltier.info

Please Donatehttps://www.whoisleonardpeltier.info/donate-now/#overlay-10582

Please Signhttps://www.gopetition.com/petitions/international-demand-for-the-immediate-freedom-of-indigenous-political-prisoner-leonard-peltier-89637-132-wrongfully-imprisoned-42-yrs3.html

A Message from Bomani Shakur (Keith LaMar) from Ohio’s death row about injustice, racism, and getting on with life

5 September 2015

Hello everybody:

Well, I finally received and read the court’s decision. What can I say? It’s so blatantly bogus that it’s almost impossible to form words to describe how I feel. It’s tragic. I mean, I’ve read the State’s theory quite a few times over the years, and I’ve refuted it every step of the way. But to now have it stand as the final word on the matter is a real slap in the face (to say the least). This system is such a joke, and these people, with their fancy titles and fancy robes, are nothing but a bunch of racist idiots with power—a power that they don’t deserve. And I’m expected to continue this charade by filing this or that motion, writing to this or that person, as if appealing to these people’s supposed conscience really means something beyond reducing me to a sniveling fool. I’m done with that. I’m done pleading and begging for my body, as if “my life” is something that they can truly take. My life is the sum total of all the thoughts and feelings that reside inside my mind, and they can never touch that.

We’ve given these people (?) way too much power over us, entrusted them with too much that is too precious, only to have them use, abuse and confuse us over and over again.

Why? Why do we continue to believe in this dream, this lie that we live in a post-racial society that recognizes only human beings? When will we ever wake up and see that all they have ever done is hide what’s real by revealing what’s false? I mean, contradiction after contradiction, and we swallow it all. Why? And this is how we’re expected to live our whole lives: watching little boys get gunned down at the playground for playing with toy guns—and no one is held accountable. How is that justice? A man standing on the sidewalk selling cigarettes (in the richest country in the world, no less) is murdered in broad daylight, on video, for everyone to see—and still no one is held accountable. And I’m supposed to be shocked and surprised that I lost my appeal?

Let’s get real. They’ve been killing niggers for centuries around here—hanging ‘em, burying ‘em, tar and feathering ‘em. . .  And ain’t I just a nigger, a THING? No? Well, tell that to the Supreme Court who, in 1875, declared that Dred Scott could not sue for his freedom because HE WAS NOT A PERSON, BUT PROPERTY. Better yet, tell it to Eric Garner’s family who, instead of receiving justice for their loss, were given a bag full of money to bury their grief, as if he was some kind of farm animal.

Make no mistake: when it comes to the so-called “justice system” in this country, we’re still stuck in the 1800s; the only thing that has changed is the vantage point from which we view what we choose to see. So look closely, adjust your scope, and you’ll see the tree and the rope. They’re still hanging niggers in America!

Over 100 of you showed up at my oral arguments last December and saw with your own eyes how ridiculous this whole thing is; the State couldn’t defend what they did. Many of you left with an optimistic feeling, believing that there was no way such a mockery could be rewarded with a victory. I feel your pain. It’s the same pain I felt after the blindfold was ripped from my eyes twenty years ago when a man, testifying at my trial, got on the stand and claimed to have had microscopic microchips embedded in his brain. There’s no way a jury is going to find me guilty of this, I told myself. But find me guilty they did—and then they sentenced me to death! Believe me, I know what it means to be disillusioned. Indeed, for the past twenty years, I’ve watched the so-called “wheel of justice” roll over my rights while my alleged attorneys have done nothing but sit back and collect a fee to auction off my life. Trust me, this whole process has been nothing but a sham.

Case in point: Three weeks after oral arguments were heard in my case, the Sixth Circuit Court of Appeals ruled on another case in which the principal issue, once again, revolved around the withholding of exculpatory (favorable) evidence. In this case, a Mr. Darryl Gumm admitted to the kidnapping, attempted rape, and murder of a ten-year-old boy. However, since the State neglected to divulge to Mr. Gumm’s attorneys that other suspects—two of whom reportedly confessed to the murder—were initially pursued, Mr. Gumm was granted relief. He was also granted relief on the grounds of prosecutorial misconduct, after the prosecutor improperly elicited testimony from Mr. Gumm’s ex-roommate who testified that he (Mr. Gumm) “fucked a horse” that belonged to the roommate’s family.

Now, I think we can all agree that there’s nothing more deplorable than the rape and murder of a 10-year-old child (to say nothing of the horse!)—and yet, in reviewing his claims, the Sixth Circuit, notwithstanding Mr. Gumm’s confession, was correct in granting him relief since the State violated his Constitutional rights by not turning over evidence that contradicted their theory of events. This is the exact same thing the prosecution did in my case (and worse), and I, likewise, should have received relief. In fact, not only did Mr. Gumm and I have the same issue, but we had the same attorney, the same federal judge, and appealed to the same court (I wish I was making this stuff up).

On his initial appeal to the Ohio Supreme Court, Mr. Gumm’s convictions were upheld (as were mine), after which an appeal was filed in federal court. Here, Mr. Gumm was appointed an attorney named Kate McGarry (as was I), who diligently pursued his claims, even after his sentence was reduced to life imprisonment with the possibility of parole. Chief Magistrate Michael Mertz  (same judge as I) presided over the case and recommended that Mr. Gumm receive relief. The State appealed to the Sixth Circuit, who ultimately upheld the District Court’s decision to grant relief to Mr. Gumm.

I present this case and its particulars, not to judge or castigate Mr. Gumm (obviously, he’s a very sick man), but to illustrate the arbitrary and capricious (and racist!) way in which “justice” is meted out in this country, and why the death penalty cannot be administered fairly.

Unlike Mr. Gumm, I never confessed to any crime; indeed, when the State offered me a deal, I rejected it outright and demanded a trial. I said it then, and I say it now: I didn’t kill anybody during the riot. But instead of turning over evidence that would help prove my innocence, the State played a game of mix and match, mixing random witness names with random excerpts of statements, and then told me to figure it out on my own. They never attempted to treat me fairly.

In 2007, when I was called back for an evidentiary hearing, I was allowed, through my attorneys, to put Lead Prosecutor Mark Piepmeier on the stand. He was the one who had fashioned the guidelines by which exculpatory evidence was turned over. Therefore, getting him on the stand was pivotal in proving that I was deprived of my right to due process. Under examination, he admitted that he had devised a Brady scheme that was decidedly narrow; to wit, in order for a statement to be viewed as favorable to my defense the witness had to “specifically exclude” me as a suspect.

In other words, if a witness came forward and claimed to have seen one of the murders, his statement was not viewed as exculpatory unless he specifically stated, “By the way, Keith LaMar wasn’t there.” This is crazy. Why would anybody, testifying to what they saw, think it necessary to specifically exclude me if they didn’t see me? And if they didn’t see me, how could they automatically assume I was a suspect? It didn’t make sense—unless, of course, the whole purpose behind narrowing the qualifications was to stifle and hinder the defense.

Because of what Piepmeier revealed on the stand at my evidentiary hearing, attorneys representing other prisoners who were sentenced to death after the riot (S.A. Hasan and George Skatzes) were able to convince the court to put their clients’ cases on hold while they combed the prosecutor’s files to determine for themselves what exactly was wrongfully withheld—and whether or not it was exculpatory.

It was the only fair and reasonable solution to circumvent the preposterous provisions that were established by the State (note: this all happened in 2011, over four years ago, and their cases are still on hold!). But when I asked my attorney, Kate McGarry, to file the necessary motions that would put my case on hold and allow me to go back and review the files, she refused (after initially giving me her word that she would). Why?

To put it plainly: racism. Kate McGarry is a racist. That’s the real reason why she didn’t diligently pursue my claims, and why I lost my appeal. I mean, how else to explain it? A white man admits to the kidnapping, attempted rape, and murder of a ten-year-old boy, and she goes above and beyond to protect his rights. Meanwhile, I’m swinging in the wind, strung up in a tree of lies.

About being a racist, I’m sure Kate would vehemently deny such an accusation. But racists very seldom acknowledge that they are racist. Once, while engaged in casual conversation, Kate broached the subject of Trayvon Martin’s death, wanting to know what I thought about it. I told her point-blank that it was racist bullshit.

“How can you justify killing a teenage boy who’s walking home drinking pop, eating Skittles?” I asked. She went on to explain George Zimmerman’s side, as if there was a plausible excuse for why he did what he did. That was the first time I saw it.

On another occasion, I asked Kate about a Senate bill that was being proposed in Arizona, having to do with improperly stopping suspected illegal immigrants. I wanted to know if she was in favor of something that would effectively violate the rights of large groups of Mexicans. She said something to the effect that, “those people enjoy our freedoms, but they don’t want to pay taxes. . .” She went on to tell me about a time when she was having one of her houses built and suspected that there were a few “undocumented workers” on the site.

“Did you go out and stop production? “ I asked.

“Oh, no, I didn’t do that,” she replied, without the slightest sense of hypocrisy in being willing to benefit from their cheap labor while at the same time denying them the right to live as human beings.

Imagine what it felt like coming to the realization that I was being represented by a racist. And before I’m accused of singling Kate out, let me be clear: this whole process was steeped in racism, from the strategic selection of the all-white jury to the hand-picked racist judge that presided over my trial. And that’s the true truth.

So, here I am, standing on the other side of a very long and treacherous journey. What now? In thinking about what to do with what remains of my time, I think it’s important to turn my attention to the movement to abolish the death penalty. Indeed, if we are ever going to move beyond the 1800s, we have to end this barbaric practice of State-sanctioned murder.

There will be a 7-day Walk to Stop Executions (October 4-10) from the Death House in Lucasville to the State House in Columbus to show opposition to capital punishment, and I want to encourage all of you who are able to come out and show your support. We have to stop this thing, and only we—standing together!—can do it. So please show your support. You can find more information at: http://walkagainstthedeathpenalty.footprintsforpeace.net.

In addition to that, I intend to increase my efforts to reach out to at-risk youth. I’ve had several opportunities to phone in to juvenile detention centers and talk with groups of young men who’re at the beginning of this road, and it’s been a very meaningful exchange. I want to double my efforts there and get them some books that’ll teach them about what it means to be alive. A very good book called “Between the World and Me” (Ta-Nehisi Coates) just came out, and I want to get as many copies as possible into juvenile detention centers.  It’s a powerful piece, written to the author’s 15-year-old son about the perils of inhabiting a black body in a racist country.

To raise money to purchase the books, I’m putting up for auction one of the paintings I recently finished, a piece I’m calling “Chillin’ on Green Court,” a reference to the projects where I spent most of my formative years.  It took me 117 hours to complete, and I’m hoping you all will support me in my desire to get some books in to these young people. They need our help. The auction can be found online at Ebay through September 25th at: http://csr.ebay.com/sell/success.jsf?itemid=121760895747&mode=AddItem&draftId=483016342002

I also intend to resume writing my own manuscript. While awaiting the decision, I found it hard to concentrate on writing, which is why I took up painting. Now that the federal court has said what it has to say, I need to get back to my life. I refuse to allow these people, and this situation, to distract me from my purpose. They put me in this madness to make an example out of me, to show other rebellious souls what they’ll do to them if they resist. They tried to break me, to strip me of my strength and rob me of my smile, all so that they could parade me around as a warning to others. But, look! I’m still standing! I’m still smiling! I’m still fighting!

It ain’t over,

Signature of Bomani Shakur (Keith LaMar) Keith LaMar (Bomani Shakur) summer 2015 KeithLamar's mile 2015 KeithLamar with friends 2015   Bomani Shakur

New Film Sheds Light on Lucasville Prison Uprising Cases:

Please Donate towards the Brandon Hein Project for Arts in Prison, and Help Reduce Recidivism through Arts!

Please view this YouTube about Brandon Hein, a prisoner sentenced to life in California for a murder he did not commit. Brandon has used art as a creative outlet in prison and is looking to help others do the same.
We are trying to help spread the word by creating a documentary film. Here is a link to the Kickstarter Campaign.
Please do whatever you can, donate, share, spread the word, to help get this important film made about Brandon Hein and his artwork, and donations will also go towards the anti-recidivism-projects.

Jason Robb allowed to question prosecutors on possible location of case files that defendents have never seen

Ohio prison riot killer can quiz prosecutors
Published 11:35 a.m., Tuesday, September 13, 2011
Houston Chronicle

COLUMBUS, Ohio (AP) — A federal judge is allowing an Ohio inmate sentenced to die for killings during the 1993 Lucasville prison riots to question prosecutors about the possible location of case files.

Jason Robb received the death penalty for killing a guard and a fellow prisoner during the riots that also killed eight other inmates.

U.S. District Court Judge Algenon Marbley ruled Monday that the 44-year-old Robb can ask two prosecutors from the case about any files they maintained, if they still exist and if so where they are.

The state had argued there was no reason for the questioning because Robb and his attorneys had received all documents related to his case.

Marbley ruled that Robb’s request was specific and limited enough to be reasonable.

Key Evidence Found in Reggie Clemons Case

Mar 11th, 2010

Last year, Chris Hill, formerly of our Capital Punishment Project, blogged about the case of Reggie Clemons. Chris called the case a horrifying confluence of “police brutality, prosecutorial misconduct, witnesses with motivations to give false testimony, dreadful defense lawyering and blatant racism.” But Clemons, one of four men convicted of murder in the 1991 deaths of two sisters, and who has been on Missouri’s death row for 19 years, may have caught a break.

On Monday, Stephen Hawke of Missouri Attorney General Chris Koster’s office sent a letter (PDF) to circuit Judge Michael Manners, the “special master” who is reviewing the case after Clemons’ June 2009 execution was stayed by the 8th Circuit Court of Appeals. The letter informs Judge Manners of “previously undisclosed evidence” in the case. That evidence, a rape kit and three lab reports, could possibly support Clemons’ innocence claims. Clemons’ defense attorney, Jeanene Moenckmeier, told the St. Louis Disptach that she “didn’t recall a rape kit.”

Koster’s office has requested a hearing “to be scheduled to determine an appropriate protocol for the testing and dissemination of the test results of the biological evidence in question.” Stay tuned.

Posted by Suzanne Ito, ACLU

Link to Article Here

Washoe County Judge Ordered District Attorney to Turn Over Nolan Klein’s Entire File

Washoe County Judge Ordered District Attorney to Turn Over Nolan Klein’s Entire File.

Emailed to us on June 13, 2009, and also published at: Make the Walls Transparent:

If there is anyone who knows of an incarcerated person or has previously been incarcerated that has left our prison system who has ALWAYS MAINTAINED THEIR INNOCENCE and was prosecuted by former Washoe County Assistant District Attorney/Federal Prosecutor Ronald Rachow please contact me.

In a recent development a Washoe County judge has ordered the District Attorney to turn over Nolan Klein’s entire file. This week documents came to light and it was discovered that former ADA Ron Rachow withheld evidence despite a court order to turn over the evidence nearly 21 years ago. This would be in violation of Brady v. Maryland.

There is no doubt that this evidence would have exonerated Nolan Klein had it been turned over during the Discovery Process and it was not.

Nolan has just been informed of this new discovery by his attorney’s and myself. Nolan is in the process of receiving such documents for his viewing because of what has happened it now opens up the door for him at getting his conviction overturned.

If there is anyone who has information about inmates who have been prosecuted by Ron Rachow and again, have always maintained their innocence and have never waivered from that fact, please have them or their loved ones contact me at the following address below.

Hopefully, this new development may be able to help those who have been wrongfully convicted.

Thank You,

Tonja Brown
Carson City, NV

Nevada Supreme Court Justices Fabricated And Falsified Evidence In Kirstin Blaise Lobato’s Case

Nevada Supreme Court Justices Fabricated And Falsified Evidence In Kirstin Blaise Lobato’s Case

From: Make the Walls Transparent On June 4, 2009

Wishing Petitioners To Death is a 2006 Cornell Law Review article by law professor Shari Lynn Johnson that documents how federal appeals court judges falsified the facts in several capital cases to justify upholding the defendant’s conviction and death sentence. Professor Johnson knows the facts in the cases she writes about because she was a lawyer for those defendants. Law professor Anthony D’Amato similarly described in a 1990 Cardozo Law Review article, The Ultimate Injustice: When a Court Misstates the Facts, that federal appeals court judges fabricated the facts they relied on to justify denying the habeas corpus petition of Dr. John Branion. Professor D’Amato knows the facts of the case because he represented Dr. Branion. The biography Cardozo (1990) by Richard A. Posner describes that U.S. Supreme Court Justice Benjamin Cardozo “defended the right of a judge to deliberately misstate facts.” 1 Although it is a long-standing practice, there is a low-level of public awareness that judges alter or conjure out of thin air key “facts” to justify their ruling in a case.

Relying on what they described as an “admission” by 18-year-old Kirstin Blaise Lobato, on February 5, 2009 three Nevada Supreme Court justices unanimously affirmed her October 2006 conviction for voluntary manslaughter in the death of 44-year-old homeless Duran Bailey near the Las Vegas strip on July 8, 2001. The justice’s opinion states, “based on Lobato’s admission, there was substantial evidence that she committed the murder.” 2 (See, Lobato vs. Nevada, No. 49087 (NV Supreme Ct, 02-05-2009), Order of Affirmance, 4)

I am aware of the facts of Ms. Lobato’s case. I have written several lengthy articles for Justice:Denied magazine and a book about it – Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt (2008). Yet, I am clueless as to what “admission” of guilt the justices are referring to in their opinion. Particularly an “admission” that is so compelling that by itself and to the exclusion of all other evidence constitutes sufficient evidence of her guilt to justify upholding her convictions and sentence.

The Clark County Medical Examiner determined from Mr. Bailey’s autopsy on July 9, 2001 that his cause of death was: “Blunt head trauma. Significant contributing conditions include multiple stab and incised wounds.” One of the incised wounds was a severed carotid artery. Ms. Lobato’s statement when interrogated on July 20, 2001 by two two LVMPD homicide detectives is a matter of public.

Did Ms. Lobato “admit” to bludgeoning Mr. Bailey’s head?
Did she “admit” to stabbing him multiple times?
Did she “admit” to inflicting “incised wounds” that included severing the carotid artery in his neck?
Did she “admit” to any involvement in his death?
Did she “admit” to being present when he was assaulted?
Did she “admit” to being present when he died?
Did she “admit” to having any knowledge of his death?
Did she “admit” to knowing him or ever having met him?
Did she “admit” to knowing anyone who knew him?
Did she “admit” to knowing any details of the location where he was killed?
Did she “admit” to ever having been to the location where he was killed?

The public record in Ms. Lobato’s case is irrefutably crystal clear about one thing: she has not made any “admission” to having any involvement whatsoever in Mr. Bailey’s death.

The lack of an “admission” of guilt by Ms. Lobato is consistent with the crime scene DNA evidence that excludes her but implicates one or more men as Mr. Bailey’s assailant; it is consistent with the crime scene fingerprints that exclude her; it is consistent with the bloody shoeprints leading away from Mr. Bailey’s body that are 2-1/2 sizes larger than her shoe size; it is consistent with the tire tracks at the crime scene that don’t match her car tires; and it is consistent with the confirmation by scientific tests that none of Mr. Bailey’s blood was on any personal item of hers or in her car. Ms. Lobato’s lack of an incriminating “admission” linking her to Mr. Bailey’s death, and the lack of any incriminating physical or forensic evidence is also consistent with the fact that there is no eyewitness or documentary evidence (gas station receipt, surveillance video, etc.) that she was in Las Vegas at any time on the day of Mr. Bailey’s death. Contrasted with that lack of incriminating evidence are the eleven eyewitnesses who saw her at her parent’s home in Panaca 170 miles north of Las Vegas from very early in the morning on the day of Mr. Bailey’s death until after his body was found that night. Telephone records also verify Ms. Lobato was in Panaca from that morning until after his body was found.

There is perfect 100% consistency between the absence of an “admission” by Ms. Lobato to any involvement in Mr. Bailey’s death, the physical and forensic evidence excluding her from involvement in the crime, and the eyewitness and telephone record evidence establishing she was 170 miles from Las Vegas on the day of his death.

The Justices Fabricated Ms. Lobato’s Non-existent “Admission”

It is known from public information that in their February 5 opinion the three justices fabricated the evidence of what is in fact a non-existent “admission” by Ms. Lobato to causing Mr. Bailey’s death. Furthermore, the justices relied on that fabricated material “fact” as their justification to rule that “based on Lobato’s admission, there was substantial evidence that she committed the murder.” The three justices who signed the decision in Ms. Lobato’s case are Chief Justice James W. Hardesty, Justice Ron D Parraguirre and Justice Michael L. Douglas.

Affirming Ms. Lobato’s voluntary manslaughter conviction was a predicate for the three justices to uphold her companion conviction of “sexual penetration of a dead body.” The basis of that charge – which is also known as the “necrophilia law” – was an injury to Mr. Bailey’s anus the medical examiner determined was inflicted after Mr. Bailey’s death. Taking into consideration that Ms. Lobato made no admission to being within 170 miles of Las Vegas at the time of Mr. Bailey’s death – the following questions are presented to further clarify what Ms. Lobato did not make an “admission” to in her statement.

Did Ms. Lobato “admit” to sexually penetrating Mr. Bailey’s anus or otherwise injuring his body after his death?
Did she “admit” to inflicting any injury to his anus while he was alive?
Did she “admit” – since he was found face-up – to turning his body over after he was dead?

There is no physical, forensic or eyewitness evidence supporting Ms. Lobato’s involvement in the alleged sexual penetration of Mr. Bailey’s dead body, and the public record is clear that she has made no “admission” to doing so. The justices, however, upheld her conviction of sexually penetrating Mr. Bailey’s dead body by relying on her phantom “admission” to causing Mr. Bailey’s death that they conjured to justify affirming her voluntary manslaughter conviction.

The prosecution’s theory of Ms. Lobato’s prosecution is that she alone killed Mr. Bailey, and after doing so she alone committed the separate act of sexually penetrating his corpse. Yet the actual record of facts and evidence in her case supports that she was 170 miles north of Las Vegas, and therefore could not have been at the crime scene or had anything to do with Mr. Bailey’s death, and afterwards his body’s alleged sexual penetration. 3

The Justices Falsified The Presumptive Test Results On Ms. Lobato’s Car

The three justices did not stop, however, with fabricating a non-existent “admission” by Ms. Lobato to committing crimes against Mr. Bailey. They also falsified the evidence of a key fact in another issue they addressed in their affirmation of her convictions. Luminol and phenolphthalein are imprecise and indiscriminate presumptive “screening” tests conducted to detect the possible presence of blood. The tests are so non-specific and non-selective that they can produce a positive reaction to an iron bearing substance, normal cleaning agents, vegetable matter, even pollen and horseradish, and they cannot distinguish between animal and human blood. Consequently, if a positive presumptive result is obtained a scientifically precise test must be conducted to confirm if the substance is in fact human blood, one of the other many common substances that can cause a positive luminol and phenolphthalein result, or if the test returned a false positive.

The following is an example to illustrate the relationship and difference between a presumptive screening test and a precise confirmatory test. Imagine that a photograph taken at a particular location on a particular day shows a person at a distance that to an observer looks like it possibly could be Joe. That is the equivalent of a presumptive test. To determine if the person in the photo is Joe the observer has the picture enlarged to show facial details, which unmistakably reveals the person is not Joe. That is the equivalent of a negative confirmatory test. Joe was not in the picture, and so the picture has zero value in proving Joe was at that location on that day. Anyone subsequently shown the original photo by the observer and told that the indistinguishable person might be Joe would be misled, because it had been conclusively proven the person in the photo was not Joe.

After Ms. Lobato’s car was impounded no blood was visibly apparent in it. Luminol and phenolphthalein tests were conducted that registered positives for the possible presence of blood in several spots. The scientific confirmatory tests were negative. No blood was found in Ms. Lobato’s car. That fact is a matter of public record in Ms. Lobato’s case.

Kirstin Blaise Lobato Book

Ms. Lobato’s lawyers made a pre-trial motion to exclude testimony about the presumptive luminol and phenolphthalein tests that detected several possible blood spots that the subsequent confirmatory tests proved were not blood. Ms. Lobato’s lawyers argued she would be prejudiced by the jury being misled and confused by testimony about the presumptive tests that had no probative value because there was in fact no blood found in Ms. Lobato’s car. Trial Judge Valerie Vega decided against Ms. Lobato and ruled the jury could hear testimony about the presumptive tests.

During Ms. Lobato’s trial the prosecution ensured the jury was exposed to much more testimony concerning the presumptive tests conducted because of the possibility there might be blood in her car, than about the subsequent confirmatory tests that proved there was no blood. The prosecutors relied on Judge Vega’s ruling to bombard the jurors with testimony about the possible meaning of the presumptive tests – even though the confirmatory tests established it is a scientific fact as certain as 2+2=4 that there was no blood in Ms. Lobato’s car.

Ms. Lobato argued in her appeal to the Nevada Supreme Court that her right to a fair trial was prejudiced by Judge Vega’s ruling and the subsequent extensive testimony about the presumptive tests. In disposing with that claim the three justices stated in their February 5 opinion, “Lobato argues that the district court abused its discretion when it permitted the State to introduce evidence of positive luminol and phenolphthalein tests for blood when the subsequent confirmatory tests were negative. We disagree.” (p. 2. The justice’s made a similar statement on page 3.) However, the justices falsified the key material fact they relied on as the basis for their ruling: contrary to the justice’s statement there were no “positive luminol and phenolphthalein tests for blood.” There were positive presumptive test results for several spots that subsequent confirmatory tests proved were not blood. It is a scientific fact the positive presumptive tests were not for blood: they either detected one of the many substances other than blood that can produce a positive result, or they registered a false positive.

The Justices Relied On Evidence They Fabricated And Falsified To Deny Ms. Lobato A New Trial

It is known that appeals court judges can and do alter the evidence in a case by fabricating and/or falsifying facts set forth in their opinion to justify arriving at their legal decision. That is what happened in the February 5, 2009 opinion jointly signed by the three Nevada Supreme Court justices in Kirstin Blaise Lobato’s case, and for which they bear equal responsibility.

C.J. Hardesty and Justices Parraguirre and Douglas did not decide Ms. Lobato’s appeal on the record of her case – but instead they fabricated a non-existent “admission” of guilt and falsified a key material fact to obscure the absence of any blood evidence in her car. The justices not only relied on their fabricated and falsified evidence as if it constituted real evidence, but their opinion makes it plain that if they had not done so they would have reversed Ms. Lobato’s conviction on multiple grounds and ordered a new trial.

The action of the three justices can be described as possibly criminal conduct. A police officer can face criminal prosecution for planting false incriminating evidence against a person and filing a false report based on that fake evidence. The three justices “planted” false evidence against Ms. Lobato in their opinion that they filed with the Clerk of the Nevada Supreme Court. Should they be held to a lower standard of honesty, integrity and respect for the public’s trust than a police officer? Furthermore, their opinion can possibly be considered as evinvseal2-transdence the justices had a meeting of the mind in the execution of a criminal conspiracy under Nevada and federal law. 4

The gravity of the justice’s action is compounded because they relieved the Clark County District Attorney’s Office of the need to actually introduce evidence during Ms. Lobato’s trial that the justice’s considered sufficient to justify affirming Ms. Lobato’s conviction.

The evidence and facts in Ms. Lobato’s case support that she had no involvement in Mr. Bailey’s death or anything that happened afterwards to his body. The $64 question is what influence on the three Supreme Court justices could be so powerful as to cause them to not just ignore the evidence and legal arguments favoring Ms. Lobato’s actual innocence, but to fabricate and falsify material “facts” in order to justify their legal rationale for affirming her convictions and denying her a new trial?

The three justices “wished” Ms. Lobato guilty by fabricating and falsifying evidence in their opinion to make it appear to be true. Their creative evidence massaging ensured the continuing imprisonment of a woman who is demonstrably actually innocent.

About the author:Hans Sherrer is the editor and publisher of Justice:Denied – the magazine for the wrongly convicted, and the author of Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt (2008).

1 Richard A. Posner, Cardozo: A Study in Reputation, University of Chicago Press, 43. Another book, The World of Benjamin Cardozo, relates that before he became a U.S. Supreme Court justice, Benjamin Cardozo is known to have falsified facts in at least two opinions while he was a New York Court of Appeals judge to justify arriving at his desired outcome. Richard Polenberg, The World of Benjamin Cardozo, Harvard University Press, 1997. See the sections “Mary E. Schloendorff and the New York Hospital” at 108-114; and, “Hamburger v. Cornell, 1925” at 114-119.

2 The justice’s made their statement about Ms. Lobato’s admission in the portion of their ruling that determined hearsay statements by LVMPD homicide detective Thomas Thowsen were harmless error, because “based on Lobato’s admission, there was substantial evidence that she committed the murder.” (4)

3 The charge of “sexual penetration” of Mr. Bailey’s dead body was based on the prosecution’s assumption that Mr. Bailey’s anal area injuries were caused by penetration of his anus by a knife after he was dead. That assumption is disputable for two reasons. The first reason is Dr. Michael Laufer testified as an expert for the defense that he had seen many anal area injuries similar to those suffered by Mr. Bailey that were caused by the crease of a person’s jeans jammed into their anus when the person was kicked hard. Dr. Laufer conclusion was supported by his testimony that the cutting and slicing wounds to Mr. Bailey’s torso and neck were caused by scissors, and not a knife as the prosecution asserted, and which they also asserted was used to inflict the post-mortem wound to his anus. The second reason is the “sexual penetration” charge is also known as the necrophilia law, and the legislative record of when the law was enacted clearly shows that the legislature intended for the law to only apply to a sexual act on a dead body that would constitute sexual assault on a live person. Even if a knife had been used to penetrate Mr. Bailey’s anus, that would not constitute sexual assault if committed on a live person, and so it did not qualify as a violation of the necrophilia law. See, Hans Sherrer, Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt, The Justice Institute, 2008, 21-23.

4 There is legal support to consider that Chief Justice James W. Hardesty, Justice Ron D Parraguirre and Justice Michael L. Douglas engaged in an unlawful conspiracy under at least two provisions of Nevada’s conspiracy law by their fabrication and falsification of the facts they relied on to affirm Ms. Lobato’s convictions and deny her a new trial. Nevada Revised Statutes 199.480 3(c) states:
3. Whenever two or more persons conspire:
(c) Falsely to institute or maintain any action or proceeding;
each person is guilty of a gross misdemeanor.
and, NRS 199.480 3(f) states:
3. Whenever two or more persons conspire:
(f) To commit any act injurious to the public health, public morals, trade or commerce, or for the perversion or corruption of public justice or the due administration of the law;
each person is guilty of a gross misdemeanor.

Additionally, the three justices may have criminal liability under the federal civil rights laws for deprivation of Ms. Lobato’s civil rights.

By Hans Sherrer

For Justice: Denied Magazine

(June 1, 2009)