Oct 12

Kirstin Lobato’s Evidentiary Hearing — Fourth Day Report

The fourth day of Kirstin Lobato’s evidentiary hearing for two ineffective assistance of counsel claims in her habeas corpus petition began at 9:45 p.m. on Thursday, Oct. 12, 2017 in the Clark County Courthouse in Las Vegas.

Kirstin Blaise Lobato after her release on bail in Dec. 2005 awaiting her retrial.

Kirstin Blaise Lobato after her release on bail in Dec. 2005 awaiting her retrial.

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 Thursday was Dr. Gail Anderson, a forensic entomologist and Associate Director of the School of Criminology at Simon Frasier University in Burnaby, Canada. (Burnaby is a suburb of Vancouver.)

To establish she was harmed by her deficient trial representation Ms. Lobato had to elicit testimony from Dr. Anderson 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. Anderson was questioned by Innocence Project staff attorney Jane Pucher.

A summary of Anderson’s key testimony follows:

1. Dr. Anderson has taught at Simon Frasier University since 1992, and she is a past president of the North American Forensic Entomology Association.

2. Among her activities she teaches law enforcement officers how to properly collect insect evidence, and she has consulted in hundreds of cases.

3. Ms. Lobato’s case is only the second time she has testified for a defendant.

4. Blow flies are attracted immediately after death by the smell of a dead body (or other animal).

5. The taste receptors of blow flies are in their feet, so after landing on a body they will walk to find the best place to lay their eggs.

6. Blow flies are cold blooded so they don’t fly below 55°, and the optimum temperature for them to fly is 80° to mid-90s.

7. Blow flies are diurnal and stop flying and laying eggs by sunset.

8. Studies before 2006 showed blow flies don’t lay eggs after sunset.

9. The prime egg laying location on a body is open wounds, and also a deceased person’s orifices.

10. A study in British Columbia conducted in temperatures in the 70s to 80s found blow flies laid eggs in minutes on a pig who was shot by police officers.

11. Dr. Anderson conducted a training exercise in 2010 near Laughlin, Nevada in October 2010. Laughlin is about 95 miles southeast of Las Vegas, and it has a similar climate. Seven carcases that had been frozen were defrosted and put outside. The daylight temperature ranged from 59 to 73. Within minutes blow fly eggs were observed to have laid eggs where a cougar had been shot in the head, and all the carcases had blow fly eggs in a short period of time.

12. Blow fly eggs are laid in clumps of a couple hundred at a time, and it rare to see a single egg on a body. Even a single egg can be identified with the naked eye.

13. Blow flies are known to access a dead body inside a plastic bag sealed with a band, and they are known to access a dead body inside a sleeping bag sealed with duct tape.

14. Blow flies favor urban environments because the garbage generated by people is a “terrific source of food for blow flies”, and provides a place to lay their eggs. In the wild blow flies have to find a dead animal to lay their eggs.

15. All her work performed in Ms. Lobato’s case has been done pro bono.

16. The time of year, optimal temperature during the day from the low 80s to a high in the mid-90s, easy access to Bailey’s body, and his odor of death, open wounds, and significant blood loss would attracted blow flies to lay eggs if he had died during daylight.

17. If Bailey died during the day he would have had blow fly activity on his body.

18. “The only explanation for the absence of blow fly eggs on Bailey’s body is he died after sunset.”

19. Dr. Anderson answered a question from Ms. Pucher by testifying: “No. It isn’t possible Bailey died in the early morning.”

20. She opined: “To a reasonable scientific certainty Bailey died after sunset.”

21. Her opinion would have been the same if she had been given the opportunity to testify in 2006 during Ms. Lobato’s trial.

Dr. Anderson was cross-examined by ADA DiGiacomo.

1. Anderson was shown a photo of the backside of Bailey’s right leg that would have been touch the ground. The photo showed a thin line that was white and DiGiacomo asked Dr. Anderson if it could be blow fly eggs. She said she couldn’t positively rule out they weren’t blow fly eggs, but it was highly unlikely because there was no open wound or blood where the white line was, while his readily accessible face, chest and genital areas provided inviting areas for the laying of eggs.

2. Pigs are used for research because they are the animal closest to humans: they are relatively hairless; they can be of similar weight, and their skin is so similar that it can be used for skin grafts.

3. Blow flies are indiscriminate. Meat is meat to a blow fly.

4. Ms. Lobato’s case is the only one she has consulted pro bono.

5. The “possible” blow fly eggs on the underside of Bailey’s leg — if they are blow fly eggs — suggest death occurred shortly before sunset.

Re-direct examination of Dr. Anderson was by Ms. Pucher.

1. The white appearing matter on the underside of Bailey’s leg is in an unlikely location for blow fly eggs to be laid when he had open wounds and orifices covered in blood that clearly had no eggs.

2. Dr. Anderson is very confident in her opinion about Bailey dying after sunset.

Dr. Anderson concluded testifying at 11:07 a.m.

The importance of Dr. Anderson’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 time period.

That completed the presentation of Ms. Lobato’s witnesses for the evidentiary hearing.

Court adjourned until 1:15 p.m.

The State’s first witness was Dr. Rexene Worrell. She was questioned by ADA DiGiacomo.

Worrell testified that she has been semi-retired since 2016 because she had gotten ill with cancer.

In testifying about her qualifications to be recognized as an expert in forensic pathology, Worrell testified she had performed more than 11,000 autopsies. (11,654 was the number listed on her C.V.) She had worked in the Clark County Coroner’s Office from September 2001 to 2004. She had worked as the medical examiner for Nye County, Nevada from 2004 to 2013, and as the medical examiner in Mojave County, Arizona from 2014 to July 2016.

When DiGiacomo offered Worrell as an expert, IP staff lawyer Vanessa Potkin objected and requested that she be allowed to voir dire Worrell. Judge Miley granted Potkin’s request.

In questioning Worrell, Potkin was able to elicit admissions that Worrell had been dishonest in her testimony, that Worrell is not board certified as a forensic pathologist, that she failed her examination for anatomical pathology, that she had lost her contract in 2013 with Nye County because she wasn’t board certified, that she had never published any articles or studies in forensic pathology, and that the number of autopsies she personally performed annually for more than nine years exceeded the maximum number approved by the National Association of Medical Examiners to ensure competent performance. Worrell is no longer a member of NAME.

Judge Miley admitted Worrell as an expert in forensic pathology, ruling that her lack of board certification goes to the weight of her testimony, not its admissibility.

A summary of Worrell’s key testimony follows:

1. In arriving at an estimate of Bailey’s time of death she primarily relied on the potassium vitreous fluid level of Bailey’s eyes at the time of his autopsy.

Ms. Potkin objected that Worrell was reading from notes. Judge Miley ordered that Ms. Lobato’s lawyer be provided with a complete copy of the documents in the notebook Worrell was reading from.

The court proceedings stopped for about 15 minutes while the court clerk copied the notebook.

2. Worrell testified about the four formulas she relied on to estimate Bailey’s time of death using the potassium vitreous fluid level of his eyes.

3. The coroner’s investigator’s crime scene report said Bailey was cold to the touch, and in full body rigor mortis.

4. Bailey was in the very early stage of decomposition at the time of his autopsy, and his rigor mortis had passed and his body was flaccid.

5. Based on all the factors her opinion was, “Bailey died sometime between the mid-morning and early morning hours of July 8, 2001.”

6. She testified that not all dead bodies found in Las Vegas in daylight have visible blow fly activity. (She didn’t qualify her statement, but it was at least generally consistent with the testimony of Ms. Lobato’s experts that blow flies are inactive during daylight when the temperature is over 105° which it regularly is in Las Vegas in summer months, and below 55° which it can be is in the winter.

7. She also testified she saw cockroach activity in two places on his stomach.

Worrell was cross-examined by Ms. Potkin.

1. She acknowledged that there is no standard of what body temperature corresponds to the description Bailey’s body was “cold” in the coroner’s investigator’s crime scene report. So there was objective way to know what his body temperature was, to use it as a reliable way to determine Bailey’s time of death.

2. She had been contacted by the DA’s Office in mid-September 2017 about Ms. Lobato’s case.

3. She was being paid $500 per hour by the State, and to the start of her testimony she had spent 9 or 10 hours working on the case. She also said she that prior to being hired she had met with the DA — who is Steven Wolfson.

4. She had testified on direct examination about a man who in July or August shot himself in the head in the morning and his body wasn’t found until the afternoon, and he had no blow fly eggs on him. On cross-examination she admitted she didn’t know the year of the event, she didn’t go to the scene of the shooting. (Since it occurred in Nye County, Nevada in July or August it is a safe to believe the temperature was over 105° when blow flies are inactive.)

5. She had testified on direct examination about a bus accident that occurred on January 31, 2009 at about 3 p.m. near Boulder Dam on the Arizona side, in which seven people were killed, and none had any blow fly eggs on them. On cross-examination she testified she arrived at the accident scene about sunset, which was at 5 p.m. that day, and at 3 p.m. the temperature was 64° — which is toward the low end of the temperature range that blow flies are active. Worrell didn’t know if the bodies had been covered before she arrived, but she said they weren’t when she arrived. (Worrell wasn’t asked about the fact that the wind was blowing 6 mph, and there was testimony during Ms. Lobato’s hearing by her forensic entomology experts that blow flies are inactive when the wind is blowing, and that there had been rain that day, and there had likewise been testimony that blow flies are inactive in rain.

There was no significant testimony during Worrell’s re-direct examination by ADA DiGiacomo.

During Worrell’s re-cross-examination by Ms. Potkin she was vigorously questioned that it is accepted in the medical field that using the potassium vitreous fluid level is an unreliable way to determine the time of death of a person who has been dead less than 24 hours. It is only accepted to estimate an approximate time of death in cases when a person has been dead for between 24 and 100 hours.

Worrell denied the test was unreliable to determine time of death when a person has been deceased less than 24 hours.

Worrell concluded testifying at 4:45 p.m.

It is unknown what impact Dr. Worrell’s opinion that “Bailey died sometime between the mid-morning and early morning hours of July 8, 2001” will have on Judge Miley’s evaluation of Ms. Lobato’s habeas petition. Worrell was caught lying, and making numerous inconsistent or unsupported statements. What is known is that Worrell’s opinion was consistent with the trial testimony of Dr. Lary Simms, the Clark County Medical Examiner who was her boss for three years from 2001 to 2004.

The hearing was adjourned, to resume at 10:30 a.m. on Friday, Oct. 13. The State is scheduled to present one more witness on Friday, which will conclude the evidentiary hearing.

[[ Justice Denied note: After court on Thursday, Justice Denied looked up “Rexene Worrell” on the website of the NEVADA STATE BOARD OF MEDICAL EXAMINERS, which has a feature to do an online search to find if a person is licensed to practice medicine in Nevada. No such person was listed. When a search was done on only the last name “Worrell” — a person with medical license number 9890 under the name of “Ruby Rexene Worrell” was listed. Dr. Worrell didn’t even truthfully state in the courtroom what her name is. When asked by the court bailiff to state her name for the record she said: “Rexene Worrell.” ]]

Click here to read the report for Day One of the hearing held on Oct. 9.

Click here to read the report for Day Two of the hearing held on Oct. 10.

Click here to read the report for Day Three of the hearing held on Oct. 11.

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.

Endnote:
* 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.

October 12, 2017
By Hans Sherrer
Justice Denied

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