Thursday, March 12, 2015

Scalia’s Embarrassing Question: Innocence is not enough to get you out of prison.

The following analysis by Laura Bazelon was published in Slate on March 11, 2015.

In May, the Innocence Network will hold its annual conference at a glitzy Hilton in Orlando, Florida. Lawyers, students, and activists from all over the country who work to overturn wrongful convictions will gather to do all the regular conference-like things: attend panel discussions, listen to inspirational talks from boldface speakers, network, and socialize. There is also a part of the Innocence Network Conference that is unique and wonderful. Every year, it brings together scores of wrongfully convicted men and women, offering a variety of programs geared toward their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in the hotel’s ballroom, when each exonerated man and woman is invited up to the stage. One by one, they come forward. They are male, female, black, white, Latino, Asian, and Native American. Some are still young and strong, others walk slowly and with assistance. They hail from the Deep South, the Midwest, the Rockies, the East and West coasts, from big cities and tiny rural communities. As their names are called, so are the number of years they served behind bars: five, eight, 13, 18, 28, 34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then another. When every last exoneree has taken his or her place, scores of them are standing shoulder to shoulder, a dizzying tableau of faces and stolen lives. The weight of the collective injustice is heart-stopping. Then the music starts and the exonerees sing and dance together. The hope and joy in the room is deeply moving.

But here is a dirty little secret about the exonerated, some of whom were on death row, some just days away from execution. They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal process—what the uninitiated like to call a “technical error.” Prosecutors buried crucial evidence, witnesses lied, police coerced false confessions, defense attorneys performed so poorly that they basically failed to advocate at all. These “technical” breakdowns matter because they violate the Constitution, which guarantees all criminal defendants the right to be free from police and prosecutorial abuses, to have access to favorable evidence in the state’s possession, and to have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is extremely difficult—if not outright impossible—to win your case by advancing the simple argument that you are innocent. Sounds crazy, right? But it’s true. The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other “technical” violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

This judicial perversion started with the Supreme Court’s 1993 decision in Herrera v. Collins, a textbook example of bad facts making bad law. Leonel Torres Herrera was charged with shooting Officer David Rucker in 1981 and leaving him to die beside his patrol car in a pool of blood. Also left at the crime scene was Herrera’s Social Security card. Officer Enrique Carrisalez and his partner saw Herrera’s car speeding away and gave chase. Herrera pulled over, and when Carrisalez approached, Herrera shot him in the chest. Carrisalez died less than two weeks later.

The state tried the Carrisalez case first, and evidence introduced against Herrera was overwhelming. Carrisalez’s partner testified that Herrera was the shooter, as did the victim himself in the days before he died. The license plate of the killer’s car matched that of Herrera’s girlfriend; when Herrera was arrested, he had the car keys in his pocket. He also had a handwritten letter in which he apologized for the killings. A jury convicted Herrera of capital murder, he was sentenced to death. After the verdict, Herrera pleaded guilty to killing Rucker.

Nine years later, Herrera petitioned the Supreme Court to overturn both convictions. Because so many years had passed and because Herrera had been convicted in state court, he had to use a legal vehicle called habeas corpus, a centuries-old, last-ditch remedy that allows prisoners to argue that their imprisonment violates the federal Constitution. Because there is a strong presumption that the criminal justice system functioned correctly in the first instance, only a fraction of these claims succeed.

Herrera argued that he should be among the lucky few because newly discovered evidence proved his innocence. The evidence consisted of three sworn statements. One was written by a lawyer for Herrera’s dead brother, Raul, claiming that Raul confessed to him that he had killed Rucker and Carrisalez. The second, signed by a former cellmate of Raul’s, claimed the same thing. The third, signed by Raul’s son, claimed that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera’s innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera’s innocence claim, quite simply, was a farce. And yet it was this claim that the Supreme Court chose to review when deciding a profoundly important question: whether any inmate with newly discovered evidence of innocence could argue that his conviction had been obtained in violation of the constitutional guarantees of due process and protection against cruel and unusual punishment.

Writing for the majority, Chief Justice William Rehnquist said that Herrera’s constitutional argument had “elemental appeal” but declined to endorse it because federal courts were not supposed to “relitigate state trials.” Herrera’s true remedy, Rehnquist said, rested with the president or the governor of his state, whose power to grant clemency was the “fail safe in our criminal justice system.” Entertaining actual innocence claims brought years after the fact were simply too “disruptive” and unfair to the state, which needed to have things settled once and for all. Rehnquist mused that even if one assumed, hypothetically, that an innocence claim could be brought, the bar for the prisoner to clear “would necessarily be extraordinarily high.”

Concurring in judgment, Justices Antonin Scalia and Clarence Thomas would have gone even farther. Taking issue with the majority’s mere hypothetical entertainment of an innocence claim, Scalia wrote: “There is no basis, tradition, or even in contemporary practice for finding that in the Constitution the right to demand judicial consideration of newly discovered evidence of innocence brought forward after a conviction.” He concluded, “With any luck, we shall avoid ever having to face this embarrassing question again.”

In 1996, things got even harder for convicted prisoners. Congress passed a law declaring that federal courts could not overturn a conviction challenged in habeas corpus petition unless the state court that heard the case first was either “unreasonable” in applying a law that was clearly established by the United States Supreme Court or the state made factual findings that no reasonable person would agree with.

The profound impact of the new law, coupled with the Herrera decision, was brought into stark relief in the case of Troy Anthony Davis. Davis, a young black man, was charged with shooting and killing Mark MacPhail, a white police officer who was trying to protect a homeless man from being beaten in a parking lot in Savannah, Georgia. At Davis’ trial in 1991, seven people identified him as the killer, and two others testified that Davis confessed to them after the fact. The murder weapon was never recovered, but bullets and shell casings recovered from the scene came from a .38-caliber pistol. One of the prosecution’s witnesses was a man named Redd Coles. On cross-examination, Coles conceded that he had argued with the homeless man on the night of the crime and that he owned a .38 pistol. The jury convicted Davis in less than two hours.

Throughout the legal proceedings, Davis maintained his innocence. After his conviction, as the jurors prepared to deliberate on the appropriate punishment, Davis asked them to “spare my life,” explaining that he had been convicted for “offenses I didn’t commit.” The jury returned with a death sentence. Davis appealed all the way up to the Georgia Supreme Court. He lost. Then he began filing habeas corpus petitions, first in Georgia state court and then in federal court. He lost again.
Then, in 1996, new evidence surfaced. Of the nine crucial prosecution witnesses, seven recanted some or all of their testimony, stating that they had felt pressure to identify Davis as the shooter when he was not. Three witnesses signed sworn statements that Redd Coles had confessed that he was MacPhail’s killer. Davis went back to state court with the new evidence, but the courts refused to hear it, saying it was too late. Davis went back to the federal courts, which agreed that it was too late. Out of options, Davis appealed to the United States Supreme Court, arguing that the new evidence should be heard because he was actually innocent.

The “embarrassing question” was back. In a short order issued on Aug. 17, 2009, the Supreme Court instructed a federal trial court judge to hold a hearing so that the recanted testimony and new evidence of Coles’ confession could be aired. Scalia and Thomas issued a blistering dissent. The Supreme Court, Scalia pointed out, had sent the trial judge on a “fool’s errand” because it has “never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually innocent.’ ” It was pointless to find Davis innocent because innocence, by itself, was not a legal basis to overturn the conviction.

The trial judge held a hearing nonetheless and concluded that Davis had not shown enough evidence to cast doubt on his conviction. Davis appealed, arguing that the trial judge had shown a “clear hostility” to his case. He lost, appealed, and lost again. Meanwhile, Davis’ case had gained unprecedented international attention. More than a half-million people signed a petition asking the Georgia State Board of Pardons and Paroles to commute Davis’ death sentence. Among the signatories were Archbishop Desmond Tutu, former President Jimmy Carter, and Pope Benedict XVI. The board denied the petition, and President Obama declined to intervene in the case.

On Sept. 21, 2011, one hour before Davis was scheduled to be executed, the Supreme Court reviewed his petition. A few hours later, they denied it without comment. Davis was now officially out of mercy, out of appeals, and out of time.

Asked to speak his final words, Davis told the MacPhail family that he grieved for their loss. “But,” he said, “I am innocent.” He continued, “For those about to take my life, may God have mercy on your souls.” The official time of death was 11:08 p.m. More than 1,000 people attended the funeral.

Whether proof of innocence should be grounds for release—from decades of wrongful imprisonment and even from death—is an “embarrassing question” but not in the way that Scalia meant. It is an embarrassment—it is a scandal—that no such right exists when we know how often the system gets it wrong. Last year alone, 127 men and women were freed from prison after their convictions were overturned. Because of the way that our system is structured, most fall into the category of the “lucky” ones—lucky because cheating, lying, laziness, or negligence made their legal proceedings grossly unfair.

There are many more still to be freed. The most conservative estimate is that there are somewhere between 10,000 and 20,000 innocent people locked up in the United States today. How many more Troy Davis cases will the Supreme Court tolerate before it does what is so obviously the right thing? If the execution of an innocent person isn’t cruel and unusual punishment, what is?

Lara Bazelon is a the director for the Loyola Law School Project for the Innocent in Los Angeles and a visiting clinical professor at Loyola.

Wednesday, March 11, 2015

John Grisham: Bill would hurt ability of wrongly convicted to prove innocence in Oklahoma

The following opinion by John Grisham was published by News OK on March 6, 2015.

A bill in the Oklahoma House could seriously hinder the ability of the wrongfully convicted to prove innocence, a reality that could allow the perpetrators of crime to continue to inflict harm on Oklahomans while the wrong person is incarcerated.

House Bill 1045 by Rep. Scott Biggs, R-Chickasha, would permit inmates to file a single petition in state court challenging their conviction, and would require the petition to be filed within two years from the date of sentencing. If this bill were to become law, these arbitrary limits could result in thousands of inmates, including the innocent, being left with no legal avenue to challenge their convictions.

Oklahoma’s current post-conviction relief law is straightforward. There is no time limit for filing post-conviction relief petitions, nor is there a cap on the number that can be filed in state court. Since 1993, Oklahoma has seen 28 exonerations, among them Ron Williamson, who was wrongfully convicted of capital murder. Williamson was five days away from execution and his petition for post-conviction relief had been denied by two Oklahoma state courts. A late appeal to a federal court stopped Williamson’s execution after the court concluded that he was denied a fair trial.

As Oklahoma prosecutors prepared to retry Williamson, more than 16 years after the crime occurred, Williamson and his co-defendant, Dennis Fritz, were able to prove their innocence through DNA evidence that didn’t exist at the time of their original trials.

Williamson’s trial was replete with errors that nearly cost him his life. Post-conviction proceedings are sometimes the only opportunity courts have to correct trial-level mistakes — mistakes that only become apparent long after the original trial has come to a close. These errors — literally matters of life and death — may take much longer than two years to surface, and may take more than one petition to correct.

Williamson was one of the lucky ones; his case involved DNA evidence and was overturned in federal court. While HB 1045 would not apply to someone seeking to prove innocence through DNA evidence, DNA evidence alone often does not expose wrongful convictions. In 2014, there were 126 exonerations, a national record, but only 22 involved DNA evidence. In Oklahoma, 17 of the state’s exonerations have not involved DNA evidence.

Just as chilling is the possibility that, while an innocent person is in prison, the real perpetrator could remain free and a threat to public safety. In the 11 Oklahoma exonerations that involved DNA evidence, a real perpetrator was identified in seven of those cases. Because police were focused on the wrong person or persons, and because the wrong person was convicted of those crimes, five of these actual perpetrators were able to go on to commit five rapes and two other violent crimes.
HB 1045 would erect an unnecessary barrier to proving innocence — a feat that is already extremely difficult. It also could pose a serious threat to public safety by preventing the innocent from exposing the truly guilty. Let’s not mess with post-conviction relief in Oklahoma. There’s no need to fix something that isn’t broken.

Grisham has authored numerous works of fiction and nonfiction including “The Innocent Man,” about the convictions of Williamson and Fritz. He is a former criminal defense lawyer and a member of the Innocence Project board of directors. HB 1045 was approved by the House and sent to the Senate for consideration.

Thursday, February 05, 2015

Does Latest NC Exoneration Highlight a Troubling Trend?

The following was published and broadcast by Public News Service - NC on February 2, 2015.

ALEIGH, N.C. – The recent exoneration of Joseph Sledge in North Carolina is just one of dozens nationally in the past year, and a case that some say highlights the need for legal system reforms.

Sledge spent 38 years behind bars for murder before missing evidence led to his release.

It's a story similar to those of Henry McCollum and Leon Brown, both of whom were exonerated in September after 30 years in prison.

Vernetta Alston, an attorney who represented McCollum, calls it a troubling trend.

"In Joseph Sledge's case, we're seeing the same things that we saw in McCollum and Brown,” she points out. “Evidence was mishandled, these guys were manipulated, and snitch testimony was allowed in.

“And it's a huge problem across our system, and one that lawmakers need to think about doing something about."

McCollum was on death row when he was exonerated, and Alston says if Sledge had been there, he could have been executed by now.

She maintains many older cases should be re-examined, and that greater accountability is needed in law enforcement and crime labs.

According to a new report, 2014 saw a record 125 exonerations nationally.

Kristin Collins, associate director of communications with the Center for Death Penalty Litigation, says murder convictions should be built on fair trials and iron-clad evidence.

But she says that's often not the case, and explains that during Sledge's trial in 1978, there was overt racism and evidence was ignored.

"These cases, they're just so sloppy a lot of times, and the idea that we could execute people or keep them in prison for life – we need a better system if we're going to do that," she stresses.

The North Carolina Innocence Inquiry Commission was launched in 2006. Alston says it's been instrumental in examining post-conviction claims.

"An innocence inquiry commission just has such tremendous subpoena power, in terms of being able to get records and compel agencies to turn over evidence and records in a way that we simply can't, through the legal process," she states.

Sledge is the eighth person exonerated by the commission. Alston says there are many more cases awaiting investigation than the commission can handle. - See more at:

Wednesday, January 21, 2015

DNA evidence should be permitted

The following editorial was published by the Asbury Park Press on January 14, 2015.

The aim of the American justice system is, in essence, a search for the truth, to ensure the guilty pay for their crimes and the innocent go free.
The Monmouth County Prosecutor's Office seems to have forgotten that, and is rightly being forced in court to justify itself in the face of its refusal to test newly rediscovered DNA evidence that could exonerate a convicted man. A court hearing scheduled Monday before Superior Court Judge Ronald L. Reisner to force the county to do the testing has been postponed until February 27.
Dion Harrell, 48, of Long Branch, who was convicted in 1992 of sexually assaulting a 17-year-old girl there, has always maintained his innocence. Although he has been out of prison for about 17 years after serving four years of an eight-year sentence, he still wants to clear his name. But the Monmouth County Prosecutor's Office is blocking Harrell's attempt to have DNA from the 1988 crime analyzed to prove one way or another whether he is the man who committed the sexual assault.
The prosecutor's reason for not agreeing to have the DNA tested is based on a peculiar reading of a state law that allows for DNA testing on evidence in the cases of convicted defendants currently imprisoned who are seeking exoneration. Since Harrell is out of jail, the prosecutor says, he is out of luck.
Assistant Monmouth County Prosecutor Mary Juliano stated in court papers that the testing would prolong the final disposition of the case, writing that "The State believes the conviction is entitled to finality."
That is an outrageous statement: "The conviction is entitled to finality?" Shouldn't Harrell's desire for justice trump the prosecution's desire for the conviction to be put to bed once and for all. There is always a public interest in finding the truth.
If Harrell is innocent, that means the perpetrator of the Long Branch rape may still be at large. The conviction rested on a couple of thin reeds to begin with: the victim's eyewitness identification of him and expert testimony that he could not be excluded as the rapist because of his blood type.
Any reasonable person would have to agree that Harrell has yet to get free from the shadow his possibly wrong conviction has cast over his life. His address is readily displayed on the Internet on the state's sex offender registry, which has led to trouble finding housing and employment.
According to the New York-based Innocence Project, which provides free representation to convicts seeking to prove their innocence and is working on behalf of Harrell, there have been 325 exonerations nationwide as a result of DNA testing. There have been eight exonerations in New Jersey.
With its ongoing battle to refuse to test the DNA, the Monmouth Prosecutor's Office is thwarting justice in two ways. It isn't allowing Harrell to clear his name and it could be allowing the true perpetrator to escape justice. It's a double black eye for the office.

Saturday, December 20, 2014

A Man Wrongfully Incarcerated Becomes a Prison Reformer

by Jeffrey Deskovic, published by on December 19, 2014

After spending 16 years wrongfully incarcerated, Jeffrey Deskovic could have re-entered society bitter and downtrodden. Instead, he began to exhaustively work to help others in his situation.

I spent 16 years, from ages 17 to 32, in prison in New York for being wrongfully convicted of murder and rape. This was prior to being proven innocent via DNA testing eight years ago, which identified the actual perpetrator, who was subsequently convicted. Thanks to a full scholarship from Mercy College, I completed a B.A., later obtaining a Masters Degree from the John Jay College of Criminal Justice. I am also the director of The Jeffrey Deskovic Foundation for Justice, which I founded to fight wrongful convictions.

My views on prison reform are shaped by personal experience, formal education, and informal studying. There are three important reasons why we should care about prison reform, rather than thinking “who cares what happens to prisoners, they committed crimes.” If we subject incarcerated people to bad prison conditions, we are deterring rehabilitation. People are sent to prison as punishment, not for punishment. As a society, we lose our humanity, and our moral standing in the world-at-large, if we treat incarcerated people badly.

Here are ten ideas on prison reform:

Separate youth from adults.
At 17 years of age and weighing approximately 150 pounds, I was sent to a men’s maximum security facility that was filled with fully developed adults, many of whom were guilty of having committed serious violent crimes. To say that I was vulnerable was an understatement, and over the years I was repeatedly physically—though thank God not sexually-assaulted. Youth convicted of crimes should be housed in Division For Youth Facilities until 21, even if they have been charged as an adult, then transferred to a facility set aside for incarcerated people 21-25, before co-mingling them with the general population. To facilitate visitation, recognized as an important factor in formerly incarcerated people transitioning to a crime free life, there should be one such designated facility near the city, and one in upstate New York. Currently, visitors often must travel 5-8 hours each way to facilities far away: so time consuming and costly a proposition that they often don’t bother.

Separate violent offenders from non-violent offenders.
Incarcerated people convicted of non-violent offenses should not be housed with those convicted of violent crimes. Additionally, regardless of the charges, those whose actions demonstrate that they choose to conduct themselves violently while incarcerated should be separated from those that don’t. I sometimes found myself, and others I knew who eschewed violence, forced to physically defend ourselves.

Segregate vulnerable populations.
Incarcerated people convicted of sex-offenses, or with mental health issues, or otherwise deemed by security to be vulnerable to abuse, should be separated from the general population.

Eliminate visitation deterrents.
Staff often are verbally abusive during visitor processing. Once admitted to the visiting room, visitors often are made to wait for up to two and half hours before the incarcerated person shows up. Incarcerated people should be informed immediately that they have a visit.

Aggressively stop staff verbal abuse.
Some of the correction officers verbally abused the incarcerated, while their co-workers and supervisors not only looked the other way, but often laughed and even sometime participated.

Upgrade medical care.
The medical staff’s answer to nearly everything was issuing Tylenol and telling incarcerated people to come back the next day. It often took a month or longer to see a doctor. Some of the nurses and doctors had bad attitudes. Staff sometimes were more interested in saving the state money than the care of their patients: once a doctor refused to sign off, for financial reasons, on a trip to an outside doctor to treat a badly injured pinky because I “still had partial movement”. I now have a permanent disability, unless I want to have it broken and reset. In some states, medical staff have been discovered not to have received an accredited education; a review of qualifications is in order.

Improve meal quality.
Meals sometimes were not fully cooked, or burned, while at other times were very greasy. Staff simply did not care. Portion control was an issue: Sunday “dinner” was often 2 pieces of baloney, an old hot dog bun, a bag of potato chips that was mostly air, ¼ of a slice of canned peaches, and a bowl of soup. Some soup consisted of leftover ingredients previously served out two or three times and had merely been mixed with plain water; hence most would not eat it.

Bring back college.
The recidivism rate was extremely low for incarcerated people who received a college education. Why? Education equips incarcerated people for gainful employment and expands their horizons. It is better to spend money for college education on the front end, estimated at costing $5000 more per incarcerated person per year, than to spend $60,000 for reincarceration, with the numbers provided from Gov. Cuomo. The formerly incarcerated would be paying taxes rather than draining them, and we could prevent future crime victims. Rhetoric aside, college education is a serious crime prevention initiative.

Update vocational curriculum and insist that instructors instruct.
Many instructors were simply there for a paycheck and did not actively teach. They had no oversight. Additionally, the curriculum was obsolete.

Provide religion based meal options.
In Elmira and nearly all prisons in New York with the exception of Green Haven, Jewish incarcerated people were not given hot meals: everything was cold cuts, tuna fish, fresh vegetables and fruits. An exception was Hanukah, where warm meals were prepared and served after the general population. Why couldn’t similar arrangements be made all the time? Muslims too should be provided with food within their dietary restrictions—it would not involve additional cost, it just means that a decrease of one type of food supply and an increase in another.

It may be hard for one person to push for these reforms. But standing together gives activists a powerful and influential voice. Please stand together with the Deskovic Foundation for Justice this Holiday season and help us fight for criminal justice reform.

Monday, November 17, 2014

Lawyer lied during Kirstin Lobato’s Nevada Supreme Court arguments

by Special to the Las Vegas Tribune November 13, 2014

A minimum-wage convenience store clerk who lies under oath in court can be convicted of perjury and sentenced to prison. In contrast, a highly paid lawyer can fearlessly lie his or her head off when publicly appearing before the Nevada Supreme Court.

We know that because of what occurred during oral arguments before the full Nevada Supreme Court on September 9, 2014 concerning Kirstin Blaise Lobato’s habeas corpus appeal. The attorney representing the
State of Nevada — Clark County Assistant District Attorney Steven S. Owens — repeatedly lied about issues related to Ms. Lobato’s case.

The Supreme Court’s response has been deafening silence. Owens’ dishonest assertions include:

1) Owens lied twice that Ms. Lobato made a “confession” related to Duran Bailey’s homicide in Las Vegas on July 8, 2001. (Oral Arguments [OA] at 9, 13. See note at end.) The truth is that during Ms. Lobato’s trial the State didn’t assert in its opening statement, closing argument, or present trial testimony she made a “confession” to Bailey’s homicide. It exists only in Owens’ imagination.

2) Owens lied, “She was convicted by her own words at the trial, and her own words belie the argument that she is actually innocent.” (OA at 7-8.) The truth is there is nothing incriminating regarding Bailey’s homicide in her police Statement or comments attributed to her — none of which even include the date, location, or manner of Bailey’s death from a head injury. Furthermore, Ms. Lobato’s habeas petition details her conviction was due to Metro Det. Thomas Thowsen’s extensive false testimony regarding her Statement and comments, and his alleged investigations; and more than 275 unrebutted instances of prejudicial prosecutor misconduct during her trial — none of which were objected to by her lawyer.

3) Owens lied, “Shortly thereafter [Bailey’s homicide], Kirstin Lobato in Panaca, Nevada, started talking about a severed penis.” (OA at 7)
The truth is Ms. Lobato mentioned in her Statement that prior to June 20, 2001 she had a conversation with a woman about the Las Vegas rape attempt she fended off with her pocket knife. Also, her habeas
petition includes unrebutted new evidence by nine alibi witnesses who were informed by her beginning in May 2001 that she used her pocket knife to fend off a would-be rapist in Las Vegas.

4) Owens lied that Ms. Lobato’s vague comment referring to a conversation with her father is evidence of a guilty mind to Bailey’s homicide. (OA at 8) The truth is her comment refers to a conversation with her father in June 2001 — weeks prior to Bailey’s homicide.

5) Owens lied, “But nothing at the crime scene is going to help them because the jury already knew that evidence there pointed away from Kirstin.” (OA at 13) The truth is Ms. Lobato’s unrebutted new exculpatory crime scene evidence establishes among other things that Bailey’s killer made all the shoeprints imprinted in blood and they don’t match Ms. Lobato; Bailey’s cutting and stab wounds were not inflicted by her pocket knife; and Bailey was alive when his rectum injury occurred, proving she was convicted of a non-existent violation of NRS 201.450. Furthermore, two jurors determined after reviewing all the new evidence that “it could have possibly resulted in either a hung jury or Ms. Lobato’s acquittal.”

6) Owens lied Bailey’s time of death isn’t “critical.” (OA at 10) The truth is the State’s theory of Ms. Lobato’s guilt depended on convincing the jury Bailey died before 7 a.m.

7) Owens lied the jury “rejected” Ms. Lobato’s alibi evidence she was in Panaca the evening of July 8. (OA at 10) The truth is the State conceded during its closing argument it is factually true she was in Panaca from at least “11:30 a.m. through the night.”
8) Owens lied in his assertions Ms. Lobato’s unrebutted new expert forensic evidence Bailey died after 8 p.m. isn’t important. (OA at 10)  The truth is the State conceded at trial she was in Panaca 165 miles from Las Vegas at that time, so it is impossible she committed his homicide.

9) Owens lied, “We have here a couple statutory remedies that Ms. Lobato could avail herself of. … and the other is a motion for DNA testing…” (OA at 12) The truth is Ms. Lobato’s petition for post-conviction DNA testing of crime scene evidence — including semen recovered from Bailey’s rectum — was vigorously opposed by the Clark County D.A. and denied by Judge Valorie Vega. The Nevada Supreme Court dismissed her appeal, “Because the order is not appealable.”

The foregoing is only a partial litany of Owens’ gross dishonesty throughout his argument. It was a continuation of Owens’ dishonesty related to Ms. Lobato’s case. His false public statements to KLAS-TV (Las Vegas), the Associated Press, and the Las Vegas Review-Journal, and in documents filed in the Nevada Supreme Court, are detailed in a letter sent to Clark County District Attorney Steven Wolfson dated July 3, 2012. That letter states: “Mr. Owens’ pervasive dishonesty is a gravely serious matter.” (p. 11) (The letter is online at, Wolfson’s inaction is evidence he expects less honesty from his deputies than responsible parents expect from their four-year-old child.

The Supreme Court has the authority to hold Owens in contempt of court for his dishonest and deceptive conduct and impose sanctions, and to refer him to the State Bar of Nevada for investigation. Owens’ unrestrained dishonesty that denied Ms. Lobato her right to a fair hearing is “good cause” for the Court to exercise its authority to sua sponte strike his arguments from consideration of her appeal.
The Nevada Supreme Court should hold Steven S. Owens accountable for his contemptible conduct and take the most extreme actions possible to protect Ms. Lobato’s rights, and the integrity of the Court and its deliberation process.
* * *
Hans Sherrer is President of the Justice Institute based in Seattle, Washington, that promotes awareness of wrongful conviction and conducted a post-conviction investigation of Ms. Lobato’s case. Its website is,

Friday, November 14, 2014

I Feared I’d Die in Prison for Maintaining My Innocence

The following article by Fernando Bermudez was published by the New York Times on November 13, 2014.

Fernando Bermudez spent 18 years prison after being convicted of murder in 1991, before being found innocent. Married with three children, he earned a bachelor's degree in behavioral science and is considering going to law school. As a speaker, he has given more than 250 talks in the United States and overseas.

Imagine yourself happy, on the verge of a career, promotion or meaningful relationship, then suddenly trapped in prison, fighting for freedom and your sanity over a crime you did not commit.
In 1991 I never imagined this would happen to me when I was arrested, convicted and incarcerated for murder. My wrongful conviction stole over 18 years of happiness for my family and I until Justice John Cataldo of State Supreme Court in Manhattan dismissed the charges and declared me actually innocent in 2009. He ruled that the police and prosecutors had used perjured testimony and illegal identification.

I wrestled with many fears during my incarceration, surrounded by violence. But my greatest fear was that I could die in prison maintaining my innocence. Year after year, I witnessed the parole board deny release to inmates who maintained their innocence, like one friend who died in prison after being denied parole every two years. Others used drugs to numb the painful reality of being trapped while innocent.

If I had stayed in prison, I would have been eligible for an appearance before the board this year. How would I have passed through the eye of that legal needle? I often thought. Exonerating evidence had long been accumulating since 1992. As an innocent man I would have poured my heart out to them with the truth that I was willing to die for. Daily, I was mentally and physically tortured with thoughts that a parole board would consider me in denial and reject my freedom.

Luckily , after years of fighting, with the help of pro bono lawyers, I won my case, which prosecutors never appealed. But the horrible, looming dilemma I faced still pains me.