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The Hope Diamond Of Wrongful Convictions: The Kirstin Lobato Case

As I have mentioned before, when I am not consuming tranquilizers or anti-depressants in reaction to the latest stock market news, I have developed an interest in the criminal process. As a semi-retired lawyer, I have tried to pitch in here and there whenever I think that the process has gone off the tracks and railroaded an innocent defendant.

Reading lots of files and decisions, I have some good news. We are not North Korea! While the system makes mistakes, many of these are in fairly debatable situations or are rectified on appeal. Unfortunately, our criminal justice system has become gargantuan (and expensive- more on that in a future post)- 2.3 million inmates behind bars as I write this - and it is inevitable that, even if only relatively small percentage of such a big number are innocent, the number of innocents is still very large. But many of the cases are close, complex, arguable and, while there should not have been a conviction, it is also not completely clear that the individual who was convicted is actually innocent.

Every so often(actually more often than I am comfortable with), however, the legal system serves up a fat pitch, a gopher ball, a hanging curve ball which is every pitcher's nightmare - an easy case, a no-brainer. There is an expression in law - "hard cases make bad law" - as courts wrestle with the law and twist it to deal with a difficult set of facts. Well, there are also easy cases. Kirstin "Blaise" Lobato's is one of those easy cases and the rationale for her continued incarceration is stranger than the parting of the Red Sea.

Blaise was subject to a rape attempt in late May 2001 and defended herself by slashing the attacker's penis with a knife. She told lots of friends and acquaintances about the incident throughout June and then was picked up by the police in late July and accused of murdering Duran Bailey on July 8. The only "evidence" was her statement describing the May incident which the police characterized as "minimizing" the July 8 homicide. Never mind that her story involved an incident several miles away and several weeks before the July 8 incident. Never mind that there was no evidence of her at the July 8 crime scene. Never mind that she was 170 miles from the scene of the crime on July 8 so that she could not possibly have committed it. And never mind that she told everyone who would listen about the May incident over and over again in June before the July 8 incident even occurred. The police heard two words "knife" and "penis" and that was enough. So Blaise Lobato, who is less likely to have committed this crime than I am, was convicted.

It takes a lot of breathtakingly incompetent lawyering, judging, expert testimony and police work to produce a conviction in a case like this but the "justice" system in Nevada was up to the task. The big question the case left me with is "why did they convict her of killing Duran Bailey?" If they were going to convict her of a crime completely unrelated to her story why not convict her of killing Jon Benet Ramsey? Or Jimmy Hoffa? Or John F. Kennedy? Or Abraham Lincoln? Or - better yet - all of them? Her story could be interpreted as a "minimization" of a historic crime spree and Nevada could be credited with "solving" some really big cases.

The case is pending on appeal of her Habeas petition before the Nevada Supreme Court which is showing some signs of giving it serious consideration. I have my fingers crossed but I do not have my hopes up. On the other hand, there is something inside me that tells me that, sooner or later - hopefully sooner, an injustice that is this obvious will not go uncorrected.

Why do I put this on Seeking Alpha? Because the same lawyers, judges, courts, and journalists which dealt with this case deal with contracts, patents, property rights, takings, and all sorts of legal issues which impact investments. Because as investors all we really have is little pieces of paper which give us a "bundle of legal rights" and these rights must rely on our buddies who produced the Lobato verdict for interpretation and enforcement. And because a legal system which can convict Blaise Lobato of murdering Duran Bailey can do ANYTHING. Which makes those little pieces of paper worthless. Which is what they are in a country without a "predictable" and functioning legal system - or in a country which investors suspect does not have such a system(anybody look at the price action on Chinese stocks over the past year or so?). So investors are stuck with one more headache - has the legal system gone totally bonkers? We will soon get guidance from the Nevada Supreme Court.