The third day of Kirstin Lobato’s evidentiary hearing for two ineffective assistance of counsel claims in her habeas corpus petition began at 1:20 p.m. on Wednesday, Oct. 11, 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 p.m. 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 only witness of Wednesday was Dr. Robert Kimsey, a forensic entomologist and an assistant Professor of Entomology at the University of California Davis.
To establish she was harmed by her deficient trial representation Ms. Lobato had to elicit testimony from Dr. Kimsey that forensic entomology evidence establishes Bailey died after the late morning of July 8, 2001, a time when the prosecution has acknowledged she was in Panaca.
Dr. Kimsey was questioned by Innocence Project staff attorney Jane Pucher.
A summary of Kimsey’s key testimony follows:
1. Kimsey earned his bachelor degree in entomology in 1977, and later earned his doctorate in entomology.
2. His research is focused on the behavior of blow flies, and he has an enormous database of his blow fly research.
3. He has consulted on a number of cases in which it is positively known that blow fly eggs were laid in a person’s orifices (eyes, ears, nose, mouth) within several hours of their death during daylight.
4. Blow flies are fast and genetically designed to quickly find carrion to lay their eggs.
5. The optimum temperature for blow flies to lay eggs on a carrion (human or other animal) is 80° to 95° during daylight.
6. Blow flies are diurnal and begin their activity in the early morning after sunrise, and cease their activity as sunset nears.
7. Blow flies can lay eggs in a deceased person’s eyes, ears, mouth, nose, genital area, and any open wounds.
8. Kimsey has conducted research with pig carcases that were infested with blow fly eggs within minutes of being put outside in 95° weather.
9. A South African study showed that blow flies can travel up to 40 miles to lay eggs on a dead animal.
10. Bailey’s pulverized face, and the open wounds on his neck, chest, and genital area, and the blood soaking his body, made him a prime target for blow flies to lay their eggs.
11. The loose trash and cardboard on Duran Bailey’s body would not in any way have inhibited blow flies from laying their eggs.
12. Blow flies lay clumps of 150-300 eggs that are visible to the naked eye, and usually multiple blow flies will lay eggs on a human body or animal.
13. It can be expected there will not be any blow fly activity at civil sunset. (On July 8, 2001 that was 8:01 in Las Vegas.)
14. “Blow fly activity is non-existent at nautical sunset.” (Nautical sunset is typically called “night fall,” and is the time when the center of the sun is between 6° and 12° below the horizon.)
15. Nautical sunset was at 9:07 p.m. on July 8, 2001 in Las Vegas.
16. The environmental conditions on July 8 in Las Vegas were optimal for blow flies to lay eggs on a dead body, with the temperature during the day ranging from the low 80s to a high of 95°.
17. On Bailey’s body there were, “No blow fly eggs. No insect activity whatsoever.”
18. “It just isn’t possible” that Bailey died during the day without blow fly eggs being present.
19. “To a reasonable medical and scientific certainty Bailey died shortly before or after nautical sunset.” (Nautical sunset was at 9:07 p.m.)
During his direct examination Judge Miley asked Dr. Kimsey how long it takes for a blow fly to lay its eggs. He answered, “Three to five minutes.”
Dr. Kimsey was cross-examined by ADA DiGiacomo.
DiGiacomo was unable to elicit any testimony from Kimsey that undercut his key direct testimony. She actually helped Ms. Lobato’s case by asking questions that allowed Kimsey to provide information and opinions that strengthened his testimony about Bailey’s time of death:
1. During his examination of high resolution photos of Bailey body at the crime scene and during his autopsy, he specifically looked for any type of insect activity, and he found no insect activity whatsoever.
2. If there is a difference between his opinion that Bailey died just before or after nautical sunset, and a forensic pathologist’s opinion that Bailey died during daylight, an explanation could be that Bailey’s body was refrigerated and placed at the crime scene after dark. However, Kimsey opined that didn’t appear to be the case with Bailey. (The prosecution has never suggested that Bailey died anywhere other than the trash enclosure where his body was found, and that had a couple quarts of blood strewn about. His death was reported to emergency 911 at 10:36 p.m. on July 8, 2001.)
3. His opinion wouldn’t have been different if he had testified during Ms. Lobato’s trial in 2006 from what it is today, that the absence of blow fly eggs on Bailey’s body establishes he didn’t die during daylight.
4. “It is a basic principle that blow flies will always lay eggs on a deceased person during the day.”
On re-direct examination by Ms. Pucher, Dr. Kimsey testified:
1. His opinion today that Bailey died shortly before or after nautical sunset would have been the same if he had been given the opportunity to testify during Ms. Lobato’s trial in 2006.
The importance of Dr. Kimsey’s testimony was it established Bailey died just before or after nautical sunset at 9:07 p.m. on July 8. The State has already acknowledged Ms. Lobato was in Panaca during that time period.
Kimsey concluded his testimony at about 3:30 p.m. The hearing was adjourned, to resume at 9:30 a.m. on Thursday, Oct. 12. 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.