Jul 08

Kirstin Lobato Has New Evidence Scientifically Proving It Is Physically Impossible She Committed Her Convicted Crimes … Will It Matter To The Nevada Supreme Court?

By Hans Sherrer*
July 8, 2013
(Endnotes are in brackets [ ])

 

Duran Bailey was a homeless man whose body was found around 10 p.m. on July 8, 2001 behind a dumpster in the exterior trash enclosure for a bank near the Las Vegas Strip.[1] It was determined from Mr. Bailey’s autopsy that he died as a result of “Blunt Head Trauma.”[2]

Kirstin Blaise Lobato was convicted on October 6, 2006 of voluntary manslaughter and other charges related to Mr. Bailey’s homicide.[3] She was sentenced to 13 to 35 years in prison.

Kirstin Blaise Lobato before she was arrested for first-degree murder.

Kirstin Blaise Lobato before she was arrested for first-degree murder.

An undisputed fact during Ms. Lobato’s trial, and which the prosecution directly acknowledged during their closing argument, is that on July 8, 2001 she was at her home in Panaca, Nevada 165 miles north of Las Vegas from at least 11:30 a.m., and probably from 10 a.m., until after Mr. Bailey’s body was found around 10 p.m. that night.[4] Testimony by a Nevada Department of Transportation supervisor established the driving time from Las Vegas to Panaca is about three hours when driving over 70 mph on the open highway.[5] Based on the prosecution’s factual concession of when Ms. Lobato was in Panaca, she couldn’t have been in Las Vegas earlier than 8:30 a.m. (11:30 minus 3 hours), and probably no earlier than 7 a.m. (10 a.m. minus 3 hours) Consequently, it is physically impossible Ms. Lobato could have committed Mr. Bailey’s homicide if he died after 8:30 a.m. on July 8, and there is a reasonable doubt she could have done so if he died between 8:30 a.m. and 7 a.m.[6]

To establish Mr. Bailey died before 7 a.m. the prosecution introduced the testimony of Clark County Medical Examiner Dr. Lary Simms that in his opinion there is a 5% “probability” Mr. Bailey died between 3:50 a.m. and 9:50 a.m. or between 3:50 p.m. and 7:50 p.m. on July 8, and a 95% probability he died between 9:50 a.m. and 3:50 p.m.[7]

A bell curve is a visualization of an event’s mathematical probability. Dr. Simms testified on cross-examination the range of his estimate of Mr. Bailey’s time of death could be plotted as a bell curve.[8] During closing arguments Ms. Lobato’s lawyer argued that based on Dr. Simms testimony Bailey’s death most likely occurred in the middle range of the bell curve – which was 12:50 p.m. on July 8.[9] He showed the jury a hand drawn bell curve and explained, “As you get out toward the edges it flattens out.”[10]

Given the uncontested evidence of when Ms. Lobato was not in Las Vegas, the jury relied on Dr. Simms’ testimony it was possible Mr. Bailey died before 7 a.m. to convict her.[11]

The probability of Mr. Bailey’s death at any given time or range of times on a bell curve can be mathematically calculated. Thus Ms. Lobato’s lawyer was on the right track by arguing to the jury a bell curve of Dr. Simms’ testimony supported there was a very small probability Mr. Bailey died in the early morning of July 8. However, her lawyers didn’t present expert testimony that based on Dr. Simms’ opinion of Mr. Bailey’s time of death there is only a 1 in 14,444 chance he died between 3:50 a.m. and 7:00 a.m.[12] That is only 0.000069% – which is grossly insufficient to overcome any defendant’s presumption of innocence – yet Ms. Lobato’s jury didn’t know that critical evidence Dr. Simms’ testimony didn’t reliably support her conviction.[13]

Ms. Lobato’s lawyer also failed to argue the key point to the jury that Dr. Simms acknowledged the weakness of his testimony Mr. Bailey’s could have died before 9:50 a.m. when during cross-examination he answered “Obviously” to the question, “Certainly if someone was in Panaca between 9:50 and 3:50 they wouldn’t have been able to commit this homicide?”[14]

After Lobato’s convictions were affirmed on appeal in 2009, a post-conviction investigation of her case was undertaken to discover new evidence.[15] Part of that investigation involved more precisely ascertaining Mr. Bailey’s time of death, about which Ms. Lobato’s lawyers presented no evidence at trial.

The science of forensic entomology dates back more than 1,000 years. The circumstances under which flies lay eggs and the development of those eggs is known to such a scientific certainty that it is relied on to convict people as documented in A Fly for the Prosecution: How Insect Evidence Helps Solve Crimes (Harvard University Press, 2000) by forensic entomologist Dr. M. Lee Goff. It is known that “Blow flies are attracted to human remains, and any other carrion or meat product, in order to lay their eggs. Eggs are laid within minutes of the remains being located by blow flies, meaning that they are laid within a very short time after death, usually minutes. Insects are attracted to wounds [because] maggots which hatch from these eggs in a few hours need to feed on a liquid protein source. Therefore, a bloody wound is extremely attractive to female blow flies and they would be expected to lay large numbers of egg masses on the body. Insect activity can be limited by a number of parameters. Blow flies are diurnal animals, meaning they are only active during daylight hours.”[16]

Three forensic entomologists, Dr. Gail S. Anderson, Dr. Linda-Lou O’Connor, and Dr. M. Lee Goff (author of A Fly for the Prosecution) were provided with the autopsy report and coroner’s crime scene report, weather data, testimony relevant to Duran Bailey’s death, and crime scene and autopsy photographs. After independently reviewing the evidence the three forensic entomologists arrived at the same expert conclusion that there was an absence of insect eggs anywhere on Mr. Bailey’s body, and thus to a reasonable scientific certainty he died after sunset at 8:01 p.m. – and Dr. Anderson and Dr. Goff opined that he most probably died after full dark at 9:08 p.m.[17] As stated above an undisputed fact during Ms. Lobato’s trial is she was at her home in Panaca 165 miles from Las Vegas at 8:01 p.m., and she was there from at least 11:30 a.m. until after Mr. Bailey’s body was found “around 10 p.m.”[18] Thus, based on the new scientific forensic entomology evidence it is a physical impossibility Ms. Lobato could have committed Mr. Bailey’s homicide.

The same information was provided to forensic pathologist Dr. Glenn M. Larkin that was provided to the forensic entomologists. Dr. Larkin had 46 years experience and was a leading forensic pathologist on the subject of determining time of death.[19] Dr. Larkin determined, “It is my opinion to a reasonable medical and scientific certainty that Bailey was killed in the evening, a few hours at most before he was discovered, more likely than not within two hours before discovery, perhaps at dusk. The lack of blow fly infestation suggests an even shorter time between [when] Bailey died and was discovered.”[20] Dr. Larkin relied in part on published rigor mortis research by more than 20 medical experts that supported his conclusion Mr. Bailey died after 8 p.m. (I.e., he died within two hours of his body’s discovery around 10 p.m.), and none of that research supports Dr. Simms’ testimony Mr. Bailey could have died before 9:50 a.m. on July 8.[21] Thus, based on the new forensic pathology evidence it is a physical impossibility Ms. Lobato could have committed Mr. Bailey’s homicide.

A number of cockroaches were in a beer can found within arms reach of Mr. Bailey’s body.[22] The three forensic entomologists who opined about Mr. Bailey’s time of death, plus a fourth, Dr. Jason H. Byrd, and Dr. Larkin, all noted in their reports there were no insect and/or rodent bites on Mr. Bailey’s body.[23] Cockroaches and rodents such as rats feed on human flesh.[24] Unlike flies, cockroaches are nocturnal, so if Mr. Bailey’s body with its numerous inviting bloody and open wounds had lain in the dark trash enclosure for any length of time prior to discovery it would have been descended on for feasting by cockroaches and rodents. Consequently, the near pristine undisturbed condition of Mr. Bailey’s body supports he likely died within minutes of his body’s discovery – and renders Dr. Simms’ testimony as ridiculous that he could have lain in the trash enclosure where he was killed for up to 18 hours. Dr. Anderson specifically opined: “I do not believe that it is possible that the remains were present during the entire daylight hours of 8 July 2001.”[25]

Duran Bailey mugshot on 10-18-1999 when he was arrested for assaulting his girlfriend in Las Vegas  (LVMPD)

Duran Bailey mugshot on 10-18-1999 when he was arrested for assaulting his girlfriend in Las Vegas (LVMPD)

The conclusion about Mr. Bailey’s time of death based on the findings of the forensic entomologists and Dr. Larkin regarding the absence of any insect eggs and insect or rodent bites, is consistent with Dr. Simms’ Autopsy Report and Clark County Coroner’s Investigator Shelley Pierce-Stauffer’s crime scene report that didn’t mention the presence of any insect eggs anywhere on Mr. Bailey’s body, or that he had a single insect or rodent bite.[26] Dr. Simms did not consider the complete absence of insect eggs or insect or rodent bites when he testified about Mr. Bailey’s time of death, even though under the circumstances of when and where his body was found considering their presence or absence is necessary to reliably determine his time of death.

In May 2010 Ms. Lobato filed a petition for a writ of habeas corpus in the Clark County, Nevada District Court that included a request for a new trial based on the new evidence Mr. Bailey died in Las Vegas at a time the State has conceded she was in Panaca.[27]

The State’s responses to Ms. Lobato’s petition in the District Court and her appeal in the Nevada Supreme Court did not address or deny the scientific basis of the new forensic entomology evidence relied on by Drs. Anderson, Goff, and O’Connor to determine Bailey’s time of death after 8:01 p.m. on July 8. Neither did the State’s responses deny the scientific basis upon which forensic pathologist Dr. Larkin determined Bailey’s time of death was after 8 p.m. Instead, the State relied on the defense the doctors examined crime scene and autopsy photos of Mr. Bailey’s body, while Dr. Simms had personally seen it. Dr. Anderson’s response to the State’s defense exposed it has no scientific merit or rational basis, and explained that examining photographs can be superior to a visual examination:

The State comments twice that the photographs were examined years after they were taken. This has no relevance whatsoever. The photographs are as clear a representation of the image photographed today as they were years ago. The photographs are well taken and in excellent condition. Their age is of no consequence. In fact, as they can now be examined in electronic format, this allows the observer to increase the size of the image at will, almost as if one were using a microscope.[28] (emphasis added to original)

Ms. Lobato’s new forensic entomology and forensic pathology evidence that her jury did not know about and which she didn’t obtain until after her convictions were affirmed, establishes without refutation by the State that to a reasonable scientific and medical certainty Mr. Bailey died after 8 p.m. on July 8, 2001, and that he could not have lain in the trash enclosure where his body was found during daylight hours. Consequently, it is physically impossible she could have committed Mr. Bailey’s homicide, because an undisputed fact of her case is she was in Panaca 165 miles from Las Vegas from at least late-morning until after Mr. Bailey’s body was found around 10 p.m.

The new evidence Mr. Bailey died in Las Vegas when it is known Ms. Lobato was in Panaca, is consistent with the absence of “any physical, forensic, medical, eyewitness, surveillance, documentary, or confession evidence” she was in Las Vegas on July 8, 2001 and Bailey’s assailant.[29]

A key question that remains to be answered is if the new scientific evidence of Kirstin Lobato’s actual innocence and that she is imprisoned for a crime it is physically impossible she could have committed, will matter to the Nevada Supreme Court, which is now considering her appeal of the denial of her habeas corpus petition by her trial judge. [30]

*Hans Sherrer is editor and publisher of Justice Denied – the magazine for the wrongly convicted. He can be emailed at contact@justicedenied.org.
Endnotes:


[1] Mr. Bailey’s body was found “around 10 p.m.” by dumpster diver Richard Shott. (See, Richard Shott’s testimony, State v. Lobato, No. C-177394, Eighth Judicial District Court, Clark County, Nevada, Trans. IV-54 (09-14-2006))

[2] Clark County, Nevada Medical Examiner Lary Simms performed Duran Bailey’s autopsy on July 9, 2001 and determined: “Bailey died as a result of BLUNT HEAD TRAUMA.” (Autopsy Report of Duran[d] Bailey, Case No. 01-04231, Clark County Coroner’s Office, July 9, 2001.) He also determined, “Significant contributing conditions include multiple stab and incised wounds.”

[3] In September 2004 the Nevada Supreme Court vacated Ms. Lobato’s May 2002 convictions of first degree murder and other related charges and ordered a new trial. See, Lobato v. State, 96 P.3d 765 (Nev. 09/03/2004).

[4] Clark County Deputy District Attorney Sandra DiGiacomo stated during the prosecution’s closing argument Kirstin Lobato was in Panaca from at least ““11:30 a.m. through that night,” and that a telephone call from the Lobato home in Panaca to the cell phone of Ms. Lobato’s step-mother at “10 a.m.” when she was at work was probably made by Ms. Lobato in Panaca. (State v. Lobato, No. C-177394, Eighth Judicial District Court, Clark County, Nevada, Trans. XIX-130 (10-5-06))

[5] Testimony of Phillip Boucher, State v. Lobato, No. C-177394, Eighth Judicial District Court, Clark County, Nevada, Trans. XV-44, 47, 9-29-2006

[6] Three defense witnesses provided unrebutted testimony Ms. Lobato was in Panaca from midnight until after 7 a.m., but this article is based on the State’s concession of the factual evidence she was in Panaca from at least 11:30 a.m. and probably 10 a.m. on July 8, 2001.

[7] Dr. Simms testified that to a reasonable medical certainty Duran Bailey died between 9:50 a.m. and 3:50 p.m. on July 8, 2001. See, cross-examination of Dr. Simms, State v Lobato, No C177394, Trans. VIII-25, 9-20-2006. Dr. Simms later testified there is a 95% probability Mr. Bailed died between 9:50 a.m. and 3:50 p.m., and a 5% probability he died “outside those limits” between 3:50 a.m. and 7:50 p.m. See, re-cross examination of Dr. Simms, State v. Lobato, No. C-177394, Eighth Judicial District Court, Clark County, Nevada, Trans. VIII-79, 9-20-2006.

[8] Re-cross examination of Dr. Simms by defense lawyer David Schieck. State v. Lobato, No. C-177394, Eighth Judicial District Court, Clark County, Nevada, Trans. VIII-79, 9-20-2006.

[9] 12:50 p.m. is mid-range between 9:50 a.m. and 3:50 p.m.

[10] Closing argument of defense lawyer David Schieck. State v. Lobato, No. C-177394, Eighth Judicial District Court, Clark County, Nevada, Trans. XIX-174, 10-5-2006.

[11] The irony of the jury’s conviction is Dr. Simms specifically testified on cross-examination “Obviously”, in response to the question: “Certainly, if someone was in Panaca between 9:50 a.m. and 3:50 p.m. they wouldn’t have been able to commit this homicide?” State v Lobato, No C177394, Eighth Judicial District Court, Clark County, Nevada, Trans. VIII-25-26, 9-20-2006. As stated above, the prosecution conceded during closing arguments the evidence introduced during Ms. Lobato trial established she was in Panaca at 11:30 a.m., and probably at 10 a.m., so Dr. Simms’ testimony supported her acquittal. However, during his closing argument Ms. Lobato’s lawyer didn’t mention Dr. Simms’ exculpatory testimony.

[12] The bell curve analysis of Dr. Simms’ testimony is explained on pages 85-89 of Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility of Guilt Replaces Proof Beyond a Reasonable Doubt – Second Edition, by Hans Sherrer (The Justice Institute, 2010). The mathematical calculations of the bell curve probabilities are explained the book’s endnote 293, and the text and other endnotes.

[13] For an analysis of how insufficient Dr. Simms’ testimony was, see pages 86-93 in Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility of Guilt Replaces Proof Beyond a Reasonable Doubt – Second Edition, by Hans Sherrer (The Justice Institute, 2010).

[14] The exchange on cross-examination was:

Q. (By defense counsel David Schieck) So the 12 to 18 hour time period gives us some time between 9:30 a.m. and 3:50 p.m. on July 8, 2001?
A. (By Dr. Simms) As a reasonable conclusion, yes.
Q. To a reasonable medical certainty?
A. Yes.
Q. Are you familiar with Panaca, Nevada? Panaca, Nevada, do you know where that’s at?
A. No, I don’t.
Q. You don’t know how far it is from Las Vegas?
A. No.
Q. Certainly if someone was in Panaca between 9:50 and 3:50 they wouldn’t have been able to commit this homicide?
A. Obviously.
State v Lobato, No C177394, Eighth Judicial District Court, Clark County, Nevada, Trans. VIII-25-26, 9-20-2006.

[15] The investigation was conducted by Justice Denied, and its webpage with detailed information about Ms. Lobato’s case is, www.justicedenied.org/kbl.htm. Justice Denied is a trade name of the Justice Institute, an IRS approved 501(c)(3) non-profit charitable organization that is involved in various activities related to wrongful convictions and alleged wrongful convictions, including the investigation of cases of persons claiming actual innocence.

[16] From page 3 of “Report of Dr. Gail S. Anderson,” 17 December 2009, The State of Nevada vs. Kirstin Blaise Lobato, No. C177394, Eighth Judicial District Court, Clark County, Nevada. (Bold in original) Filed as Exhibit 1 to the “Petition For Writ Of Habeas Corpus, Kirstin Blaise Lobato vs. Warden of FMWCC and The State of Nevada,” No. C177394, Eighth Judicial District Court, Clark County, Nevada.

[17] “Report of Dr. Gail S. Anderson,” Id. at 4-5; “Forensic Entomology Investigation Report (of Dr. Linda-Lou O’Connor),” February 11, 2010, The State of Nevada vs. Kirstin Blaise Lobato, Eighth Judicial District Court, Clark County, Nevada, No. C177394. Filed as Exhibit 2 to the “Petition For Writ Of Habeas Corpus, Kirstin Blaise Lobato vs. Warden of FMWCC and The State of Nevada,” No. C177394, Eighth Judicial District Court, Clark County, Nevada; and, Report of Dr. M. Lee Goff, March 12, 2010, The State of Nevada vs. Kirstin Blaise Lobato, Eighth Judicial District Court, Clark County, Nevada, No. C177394. Filed as Exhibit 3 to the “Petition For Writ Of Habeas Corpus, Kirstin Blaise Lobato vs. Warden of FMWCC and The State of Nevada,” No. C177394, Eighth Judicial District Court, Clark County, Nevada.

[18] One of many witnesses who testified to seeing Ms. Lobato at her home in Panaca on the afternoon and evening of July 8 was prosecution witness Chris Carrington, who testified he saw Ms. Lobato at her house that evening until he left between 10:30 and 11 p.m. – which was after Bailey’s body was discovered “around 10 p.m.”

[19] Dr. Larkin authored the chapter “Time of Death” in The Forensic Sciences (1997), edited by Dr. Cyril H. Wecht.

[20] Page 8 of “Affidavit of Glenn M. Larkin, M.D.,” January 5, 2010, The State of Nevada vs. Kirstin Blaise Lobato, Eighth Judicial District Court, Clark County, Nevada, No. C177394. Filed as Exhibit 4 to the Petition For Writ Of Habeas Corpus, Kirstin Blaise Lobato vs. Warden of FMWCC and The State of Nevada, No. C177394, Eighth Judicial District Court, Clark County, Nevada.

[21] “Dr. Simms testified on direct examination “at about 24 hours your body is stiff.” (Trans. VII-144, 09-19-2006) Dr. Simms’ testimony exceeded by six hours the maximum of 18 hours it takes for a body to become “stiff” reported by any of these twenty published experts, and exceeded by 20 hours the four-hour minimum time it takes. The Response does not deny or address the rigor mortis research by the twenty medical experts cited in Dr. Larkin’s Affidavit. ((Lobato Habeas Petition Exhibit 4, at 12-13.). See also, “Petitioner Lobato’s Answer To The State’s Response To The Petition For Writ Of Habeas Corpus,” Kirstin Blaise Lobato vs. Warden of FMWCC and The State of Nevada, No. C177394, Eighth Judicial District Court, Clark County, Nevada, at p. 17.

[22] LVMPD Crime Scene Analyst Louise Renhard mentions in her crime scene notes, “Beer can partially filled – cockroach infested.” (Louise Renhard crime scene notes of Duran Bailey murder.); and during Ms. Lobato’s first trial she testified on May 13, 2002: “I do remember a beer can.” …“No, it was – had like, I believe, 15 or 18 cockroaches in it.” (State v Lobato, No C177394, Eighth Judicial District Court, Clark County, Nevada, Trans. IV-95 (05-13-02))

[23] Dr. Byrd noted he didn’t detect any fly eggs or cockroach bites on Bailey’s body. “Report of Dr. Jason H. Byrd,” February 1, 2010. The State of Nevada vs. Kirstin Blaise Lobato, Eighth Judicial District Court, Clark County, Nevada, No. C177394. Filed as Exhibit 2 to “Petitioner Lobato’s Answer To The State’s Response To The Petition For Writ Of Habeas Corpus,” Kirstin Blaise Lobato vs. Warden of FMWCC and The State of Nevada, No. C177394, Eighth Judicial District Court, Clark County, Nevada.

[24] “Report of Dr. Gail S. Anderson,” Id. at 4-5.

[25] Id. at 5.

[26] Coroner’s Investigator Shelley Pierce-Stauffer examined Mr. Bailey’s body at the crime scene, and declared him dead at 3:50 a.m. on July 9, 2001.

[27] Ms. Lobato’s 770-page habeas corpus petition is available for reading, downloading or printing at, http://justicedenied.org/lobato_habeas.pdf

[28] Dr. Gail M. Anderson’s Response, 7 September 2010, 2-3; Filed as Exhibit 1 to “Petitioner Lobato’s Answer To The State’s Response To The Petition For Writ Of Habeas Corpus,” Kirstin Blaise Lobato vs. Warden of FMWCC and The State of Nevada, No. C177394, Eighth Judicial District Court, Clark County, Nevada.

[29] Appellant’s Reply Brief, Kirstin Blaise Lobato vs.The State of Nevada, No. 58913, Nevada Supreme Court, at 51. See also, “Appellant’s Opening Brief,” Kirstin Blaise Lobato vs.The State of Nevada, No. 58913, Nevada Supreme Court, at 24, 28, 89, 102, 124, 127-28, which are statements of the absence of evidence Ms. Lobato was in Las Vegas (Clark County) on July 8, 2001, that the State didn’t rebut in its Answering Brief filed in the Nevada Supreme Court on July 5, 2012.

[30] Ms. Lobato’s appeal is Nevada Supreme Court case number 58913. Her habeas corpus petition was denied by Clark County District Court Judge Valorie Vega on June 16, 2011.

 

By Hans Sherrer

Justice Denied

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