The first day of Kirstin Lobato’s evidentiary hearing for two ineffective assistance of counsel claims in her habeas corpus petition began at 1:15 p.m. on Monday, Oct. 9, 2017 in the Clark County Courthouse in Las Vegas.
Ms. Lobato was convicted in 2006 of voluntary manslaughter and other charges related to Duran Bailey’s homicide in Las Vegas on July 8, 2001. She is incarcerated serving her sentence of 13 to 35 years in prison.*
She filed her habeas petition in May 2010, in the Clark County District Court.
The hearing was ordered by the Nevada Supreme Court. It is determine if Ms. Lobato’s trial lawyers provided ineffective assistance of counsel for failing to investigate and present forensic entomology and forensic pathology evidence discovered after her trial that establishes Bailey died after 8 pm on July 8. During her trial the prosecution conceded that credible alibi witnesses establish she was at her home in Panaca — 165 miles north of Las Vegas — the entire afternoon and evening of July 8. Her petition asserts the jury would not have found her guilty if it had known the evidence Mr. Bailey died at a time the State has acknowledged she was 165 miles from Las Vegas.
Ms. Lobato’s first witness was David Schieck, who was her court appointed trial lawyer. Schieck was assisted during the trial by two pro bono lawyers from San Francisco, Sara Zalkin and Shari Greenberger (now Shari White).
Schieck was questioned by attorney Barry Scheck, co-founder of the Innocents Project in New York, which is representing her pro bono.
To establish her representation was deficient, Ms. Lobato had to elicit testimony from Schick that the decision not to investigate or present the exculpatory forensic time of death evidence was not a “strategic” decision by her lawyers.
A summary of Schieck’s key testimony follows:
1. Schieck tried repeatedly to deflect responsibility for the final decision making process in the hiring of experts to Zalkin and Greenberger. However, he was the lawyer of record: they were California lawyers only allowed to practice in Nevada for the duration of Ms. Lobato’s trial.
2. He knew that Zalkin and Greenberger were both inexperienced at representing murder defendants, while at the time of Ms. Lobato’s trial he had represented over 60 people charged with murder.
3. The core of Ms. Lobato’s alibi defense was she was home in Panaca at the time of Bailey’s death in Las Vegas.
4. He knew her alibi evidence was extremely persuasive that she was in Panaca the entire afternoon and evening of July 8, 2001. (In fact, the prosecution conceded during their closing argument the evidence established she was in Panaca from 11:30 am until after Bailey’s body was found that evening.)
5. That the defense presented no evidence about Bailey’s time of death.
6. At the time of her trial he was aware that entomology evidence could be important to establish a victim’s time of death.
7. That neither he, Zalkin, nor Greenberger consulted with a forensic entomologist to obtain their evidence about Bailey’s time of death.
8 That the failure of he, Zalkin, and Greenberger to consult with a forensic entomologist was not a strategic decision.
9. That if the defense had presented the forensic time of death evidence Ms. Lobato discovered after her trial that it could have affected the jury’s verdict finding her guilty.
10. He stated: “On reflection, I absolutely should have consulted with a forensic entomologist.”
Schieck was cross-examined by Clark County Assistant District Attorney Sandra DiGiacomo. She is representing the State of Nevada during the hearing, and she was one of the two prosecutors during Ms. Lobato’s trial. DiGiacomo was unable to elicit any testimony from Schieck that undercut his key direct testimony — particularly his testimony that the failure to consult with a forensic entomologist or present the exculpatory entomology evidence during her trial was not the result of a “strategic” decision.
Ms. Lobato’s second witness was forensic pathologist Dr. Andrew Baker. Dr. Baker is the Chief Medical Examiner for Hennepin, Dakota and Scott counties, Minnesota. Minneapolis is the largest city in Hennepin County.
To establish she was harmed by her deficient representation Ms. Lobato had to elicit testimony from Dr. Baker that the forensic pathology time of death evidence conclusively establishes Bailey died after the late morning of July 8, 2001 when the prosecution has acknowledged she was in Panaca.
Dr. Baker was questioned by Innocence Project staff attorney Vanessa Potkin.
Baker testified about his post-conviction review of the medical evidence in Ms. Lobato’s case to determine Duran Bailey’s time of death. Baker was recruited as a substitute for Dr. Glen Larkin, who provided the new forensic pathology time of death evidence in Ms. Lobato’s habeas petition that Bailey died on the evening of July 8, 2001. Dr. Larkin passed away on April 22, 2013. Because of the State’s opposition to an evidentiary hearing, Dr. Larkin was not able to testify before his death. However, Dr. Baker’s conclusions mirrored Dr. Larkin’s determination about Bailey’s time of death.
A summary of Baker’s key testimony follows:
1. Based on the medical evidence about when Bailey was in full rigor mortis and when it had completely dissipated, and the extreme outside temperature in Las Vegas on July 8, he disagreed with the trial testimony of Dr. Lary Simms that Bailey could have died as early as 3:50 am on July 8, and that Bailey most likely died between 9:50 am and 3:50 am.
2. Bailey’s most likely time of death was at 7:50 p.m. — eight hours before his body was examined at the crime scene by the Coroner’s Investigator. He also opined that he could have died two hours before or after that time, but at the absolute maximum four to six hours before then — which means the earliest he died was about 2 pm.
The importance of Dr. Baker’s testimony was it established Bailey most likely died on the evening of the 8th, but at the earliest he died in mid-afternoon. The prosecution has already acknowledged that Ms. Lobato was in Panaca during that entire time period.
Baker concluded his direct testimony at about 5 p.m., so his cross-examination by DiGiacomo will begin when the hearing resumes at 11 am on Tuesday, Oct. 10.
Dr. Glenn Larkin was an unsung hero dedicated to using his medical expertise to help free innocent people. Click here to read his 2013 memoriam published in Justice Denied: Glenn Michael Larkin, M.D. (1935-2013).
Click here to read or download at no charge the PDF book “Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt – Third Edition.” The book about Ms. Lobato’s case was written by Justice Denied’s editor and publisher Hans Sherrer.
* Ms. Lobato was convicted in 2006 after a retrial. Her conviction in May 2002 of first-degree murder and other charges, and her sentence of 45 years to life in prison, was overturned by the Nevada Supreme Court in 2004.