Justice Delayed Is Justice Denied

ON SEPTEMBER 9 it will have been one year since the Nevada Supreme Court heard oral arguments in the case of Kirstin Blaise Lobato, currently in prison for the brutal murder of a homeless man in Las Vegas in 2001. The man, 44-year-old Duran Bailey, died a gruesome death: His throat was slashed, his teeth knocked out, and, disturbingly, his penis had been amputated. His body was left behind a dumpster.

Lobato, who was 18 at the time, was convicted despite having an alibi — she was at home in the rural town of Panaca, nearly three hours northeast of the city, as witnesses would attest at her trial. The only evidence against Lobato was a rumor that she had allegedly told a former teacher that she had “cut off” a man’s penis down in Vegas. Lobato insists that didn’t happen; instead, she said she had used a knife to defend herself when an unknown man tried to sexually assault her in Vegas weeks earlier and clear across town from where Bailey would eventually be found. When she fled from her attacker, she said, the man was very much alive. No physical evidence implicated Lobato. Yet she was sentenced to up to 35 years in prison.

Indeed, in all the years I’ve been a criminal justice reporter I’ve never before — or since — seen a more disturbing case, or more troubling conviction. In March The Intercept published a lengthy report on my reinvestigation of Lobato’s case, revealing how shoddy police work — including several compelling leads that police detectives never bothered to pursue — and an overzealous prosecution railroaded Lobato, who had only just graduated high school. Now 32, and backed by several dedicated advocates (including a former FBI agent), Lobato has vociferously maintained her innocence.

Lobato’s case was actually filed with the state’s highest court in August 2011, and three years passed before the court heard oral arguments — meaning it has now been four years that the court has had the case on its docket without deciding whether Lobato should be granted relief. Among the specific issues the court is weighing are whether a district court judge erred by denying Lobato an opportunity to prove that prosecutors improperly withheld evidence from her defenders, that her lawyers were ineffective, and that she is indeed innocent. And there is absolutely no timeline by which the court must rule — a decision is as likely to come tomorrow as it is in another four years.

For Lobato, the uncertainty is excruciating. She tries to stay busy “and keep my mind occupied,” she wrote in an August letter. “It’s difficult to not be anxious and discouraged the longer I wait for a decision on my appeal.”

FOR PRISONERS AND THEIR FAMILIES — as well as victims of crime — waiting on the courts is undoubtedly difficult, like an endless dance on the knife edge. But for those challenging wrongful convictions, there is a double standard that is especially impossible to ignore. While parties on either side of a conviction face myriad rules and strict filing deadlines as a case moves through the appeals process, virtually no such rules or deadlines apply to appellate courts.

In more than 15 years covering criminal justice, I can’t count the number of times I’ve written that a particular case is “pending” before an appellate court, then had a reader ask, “So, when will the court rule?” My only answer: “Your guess is as good as mine.” In Texas, I’ve seen appeals languish for years — literally — after they’ve been extensively briefed, argued, and submitted. That’s because, in the majority of state court systems, including in Nevada, there are absolutely no formal deadlines — or “case-processing time-standards” in the parlance of the National Center for State Courts (NCSC) — for appellate jurists.

This isn’t necessarily a bad thing, if you assume that whatever amount of time a court takes is time necessary to scrutinize facts, arguments, and the law, then deliberate thoughtfully and reach a just conclusion. In high-stakes, complex criminal cases — death penalty litigation, for example — it is especially important for courts to take their time to do things right.

But the reality is that many appeals are not so complex or weighty. Many are maddeningly straightforward. Consider one case currently pending before Texas’ Third Court of Appeals, an intermediate appellate court based in Austin. In a mere 20-page brief, veteran local defense attorney Keith Hampton raises a single issue regarding a photograph of a pickup truck. The question for the court is painfully simple, he says: Is this a picture of what the state says it is a picture of? The case has been pending for 18 months.

Of course, not everyone in Texas has to wait for justice, and certainly not while sitting in jail or prison, as most defendants do. Former Gov. Rick Perry was indicted last year on two felony counts — coercion of a public servant and abuse of official capacity — related to an alleged retaliatory veto that stripped millions in funding from an elected district attorney who Perry wanted out of office. In February 2015, Perry filed a more than 100-page appeal, asking the Third Court to dismiss the charges against him. It took the court just five months to grant Perry relief by tossing one of the charges.

The NCSC counts at least 18 states that do have rules about appellate case processing, although many consider abiding by them “voluntary.” And even in states with at least nominal guidelines, it’s not at all clear that they have done anything to reduce what can feel like an interminable lag time. Take Ohio’s time standards, originally adopted in 1971, and officially “mandatory,” according to the NCSC. According to local public defender Jeffrey Gamso, the state’s rules are toothless. While he says Ohio’s high court issues timely rulings in cases once oral arguments have been held — within six months or so — the amount of time it can take to reach that oral argument is long and wildly variable — from three to five years after briefs have been submitted.

Gamso is currently representing a death row client whose initial briefings were complete in 2013. He estimates he should be in court to argue the case by 2018. While he has been feeling optimistic that the date could come sooner, “there’s no way to know,” he says. “All I know is that they haven’t scheduled it. But does that do anybody any good, really? I’m not chomping at the bit to get down there and argue that case. But as a matter of principle, to run a good system, no, that’s not the way it’s supposed to be.”

THE LATE, LEGENDARY Columbia Law School professor Maurice Rosenberg, who had a passion for improving the mechanizations of the justice system, once said, “Slow justice is bad, but speedy injustice is not an admissible substitute.” In other words, it’s unclear whether the imposition of stringent deadlines for higher courts is the right answer to the long wait for justice. Indeed, it could actually create new problems. There is an inherent tension between efficiency and careful, deliberative consideration.

Florida provides a cautionary example. There, case-processing time standards dictate that the state Supreme Court and District Courts of Appeal must render decisions within 180 days of oral argument or written submission of a case. The result has been notable swiftness — but that doesn’t necessarily mean the quality of justice has improved. Howard Blumberg, who worked for nearly 35 years in the Miami-Dade County public defenders office, says that the efficiency he experienced in the Third District Court of Appeals where he routinely practiced is “kind of a double-edged sword in criminal cases. In my opinion, it hasn’t worked that well.”

It sounds good on paper: Oral arguments are scheduled roughly five to six weeks from when the last brief is filed in a case, he explains. After oral argument, the court typically churns out a decision within a month. The problem is that this narrow window leaves little time for jurists to deliberate and craft thoughtful written opinions. Instead, they routinely draft so-called “per curium” decisions — opinions “by the court” as a whole. These opinions are not precedent-setting and thus are not allowed to be cited as such in any future appeals. Because in Florida a litigant needs a full written opinion in order to bring a case to the Supreme Court, this effectively blocks that avenue of appeal. More generally, even when written rulings are not precedent-setting, they can be useful in clarifying existing law and guiding lower courts and the attorneys working within them. So while Florida’s Third District appeals court has been “very conscientious, very efficient” about disposing of cases, Blumberg said, it’s been “totally useless” as far as its ability to fulfill these other important roles. “It’s a machine,” he said.

What’s more, Blumberg adds, crime has decreased in Florida — and the court’s criminal caseload has also decreased. So it’s not that the court couldn’t write more opinions. It’s that judges simply are not taking the time to do so. Sometimes that’s very frustrating; Blumberg says he has seen judges appear to understand the serious issues or novel arguments at play while hearing oral arguments, only to then receive a cursory per curium result. “A lot of it is just inexplicable,” he said.

BACK IN NEVADA, the problem is perhaps the opposite. Until voters approved the creation of an intermediate appellate court in 2014, it was left to the state’s Supreme Court to handle every legal matter coming from each of the state’s local courts — everything from appeals of traffic cases to appeals of death penalty cases. (There are just nine other states that have no permanent intermediate appellate court.)

But as Nevada’s population has grown over the last decade, so has the workload of the high court. According to the 2014 annual report on Nevada courts, the state’s seven high court justices were assigned to handle 354 cases each; a total of nearly 2,500 appeals were filed last year — a rate of some 89 per 100,000 population. This far surpasses even California, the nation’s most populous state, where the rate of appeals filed was just 20 per 100,000 in 2014. At the end of last year, the Nevada Supreme Court had a backlog of nearly 2,000 undisposed cases.

Lobato’s case is among them.

Veteran Nevada criminal attorney Dominic Gentile said he’s not entirely surprised that the court has not yet issued a ruling in Lobato’s case (in which he is not involved). In his experience, it can take up to 18 months to get a ruling after oral argument. That may be a long time, he said, but speeding things up wouldn’t necessarily be an improvement. “In all candor, in my opinion, it’s far better … for the criminal justice system as a whole, for the court to be methodical.”

Still, Gentile notes, the effect of such delays on individual defendants is troubling. “In the situation of Ms. Lobato, she’s in custody, so that definitely has an impact — justice delayed is justice denied,” he said. Indeed, Lobato had hoped to go to college, to fall in love, to get married, and to have children. “She especially wants to be a mom,” says her friend and fiercest advocate, Michelle Ravell. Instead Lobato has spent the majority of her adult life behind bars. Although Lobato still dreams of a full life outside of prison, the last 14 years have taken their toll, Ravell says. “In her mind [these desires] feel more like wishful thinking,” she said. “I don’t know if these are dreams that she feels she can achieve.”

Photo: “Creative Commons of Supreme Court of Nevada” by Ken Lund, used under CC BY 2.0/cropped from the original.