The second day of Kirstin Lobato’s evidentiary hearing for two ineffective assistance of counsel claims in her habeas corpus petition began at 11:40 p.m. on Tuesday, Oct. 10, 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.
The first witness was Dr. Andrew Baker. He testified as an expert forensic pathologist for Ms. Lobato on Monday, but court ended for the day before the State could cross-examine him.
A summary of Baker’s key testimony on Monday 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 the prosecution’s medical expert, 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.
On Tuesday, Baker was cross-examined by Clark County Asst. DA Sandra DiGiacomo.
DiGiacomo was unable to elicit any testimony from Baker that undercut his key direct testimony. She actually helped Ms. Lobato’s case by asking questions that allowed Baker to provide information and opinions that strenghened his testimony on Monday about Bailey’s time of death:
1. Bailey’s time of death could have been less than eight hours before his body was examined at the crime scene, because the trash and cardboard covering his body when it was discovered would have kept his body warmer than if he wasn’t covered, and that could have accelerated his body to be rigid from full rigor mortis, which was observed at the crime scene.
2. Bailey’s time of death could have been less than eight hours before his body was examined at the crime scene, because he was moved from the crime scene to a cooler environment at the coroner’s office (and possibly put in a cooler) — which could have masked that his body completed the rigor mortis process and become flacid prior to his autopsy at noon on July 9.
3. Baker also explained why Dr. Simms’ trial testimony about Bailey’s time of death at Ms. Lobato’s trial that was favorable to the State, was inconsistent with the medical evidence.
4. DiGiacomo also created an opening for Dr. Baker to declare it was his expert opinion that to a reasonable medical and scientific certainty Bailey died eight hours before his body was examined at the crime scene, give or take a couple hours each way.
The importance of Dr. Baker’s testimony on cross-examination was it bolstered his direct testimony on Monday, by providing additional evidence Bailey’s death occurred on the evening of July 8. The prosecution has already acknowledged Ms. Lobato was in Panaca at that time.
Ms. Lobato’s first witness of the day was Dr. Jeffrey Tomberline, a forensic entomologist who is an Associate Professor and Program Director of the Forensic and Investigative Sciences Program at Texas A & M University.
To establish she was harmed by her deficient trial representation Ms. Lobato had to elicit testimony from Dr. Tomberline that the forensic entomology time of death evidence establishes Bailey died after the late morning of July 8, 2001, a time when the prosecution has acknowledged she was in Panaca.
Dr. Tomberline was questioned by Innocence Project staff attorney Adnan Sultan.
A summary of Tomberline’s key testimony follows:
1. Entomology goes back to Biblical times, and the first documented case involving forensic entomology to solve a crime was in China in the 13th century.
2. Blow flies are attracted by the odor of a dead body, and can begin laying eggs on a body within minutes of death.
3. Blow flies lay hundreds of eggs at a time in clumps typically the size of a dime, and to the naked eye the eggs look like white rice.
4. Within 12 hours of being laid blow fly eggs can hatch and become maggots.
5. Blow flies are extremely opportunistic in finding a dead body, and fly eggs and maggots have been found infesting bodies in a vault 6’ underground.
6. Blow flies can travel more than a mile to lay eggs on a dead body.
7. The optimum conditions for blow flies to lay eggs on a body is: 70° to 95° outside; no wind; no rain; and, daylight.
8. The conditions on July 8, 2001 in Las Vegas were optimal for blow fly infestation of a dead body: during daylight hours the temperature ranged from the low 80s to a maximum of 95°; and there was no wind and no rain.
9. The loose covering on Bailey’s body with trash and cardboard would enhance blow fly activity because it provided them with shade and they were protected. The could crawl to Bailey’s orfices and his open wounds to lay their eggs.
10. If Bailey had died before sunrise on July 8 and laid in the trash enclosure all day, when his body was found it not only would have been covered in fly eggs, but there would have been maggot activity.
11. There was not a single fly egg visible in any of the crime scene and autopsy photographs of Bailey’s body.
12. Based on his more than 20 years of experience, to a reasonable degree of scientific certainty Bailey died soon before his body was found, and he died after sunset at 8:01 p.m. on July 8, 2001.
Dr. Tomberline was cross-examined by ADA DiGiacomo.
DiGiacomo was unable to elicit any testimony from Tomberline that undercut his key direct testimony. She actually helped Ms. Lobato’s case by asking questions that allowed Tomberline to provide information and opinions that strenghened his testimony about Bailey’s time of death:
1. Blow flies aren’t limited to a specific area, they live throughout the world.
2. Flies thrive in cities and around people.
3. Under optimal environmental conditions during daylight blow flies will in every case involving a dead body, begin to lay eggs on the body within a period of time ranging from minutes to a couple hours.
4. He has never seen a single study that there was no fly colonization of a dead body under optimal conditions — which existed for Bailey.
The importance of Dr. Tomberline’s testimony was it established Bailey died after sunset at 8:01 p.m. on July 8. The State has already acknowledged Ms. Lobato was in Panaca during that entire time period.
Tomberline concluded his testimony at about 4 p.m. The hearing was adjourned, to resume at 1 p.m. on Wednesday, Oct. 11. The hearing is scheduled to conclude on Friday, the 12th.
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.